Private Members' Business. - Freedom of Information (Amendment) (No. 3) Bill 2003: Second Stage (Resumed).
Wednesday, 12 March 2003
Dáil Eireann Debate
Mr. C. Lenihan: It is with great pleasure that I address the sense of scandal and foreboding foisted on this House and an unsuspecting public in relation to the Government's proposal to restrict some of the generous provisions of the Freedom of Information Act 1997, which permits to citizens access to vital information. It is never easy to roll back universal rights once they have been granted and it is no easy job to defend the Government on this issue. A Government will always court unpopularity when it admits a mistake and makes changes to legislation it put in place. It takes great courage on the part of a Minister or Cabinet to face the music on specific issues.
The very words “freedom of information” convey a beautiful sense of a nirvana in which one can get every file and document one ever wanted. It gives the impression that files can be plucked from the Civil Service system at no cost to one, to the Exchequer, to the taxpayer or to the proper conduct of modern government. We are all aware that the world we live in is different. For every right conferred there is a duty and associated costs. Certain rights need to be trammelled in the context of those costs. When one has a freedom of information system which permits occasional and vexatious inquiries, what occurs is an abuse of the rights process freedom of information is designed to protect.
No substantial rights of the citizen are being eroded by the Government's changes to freedom of information legislation. The modern process of giving the citizen a right of access to information is very much in its infancy and the healthy principle involved is one to which all Members of this House subscribe. At its most simple, it means our bureaucratic, administrative and ministerial decisions are up front and transparent. When people request vital information as it affects them, it can lead to the vindication of their rights. The danger implicit in freedom of information is that unscrupulous or eccentric people may request information that ties up the time of civil servants for many hours. It is with regret that I reiterate the example cited by the Minister for Finance in this House. An unnamed citizen made a freedom of information request which cost the State €10,000, but incurred a charge of only €600. How was the public interest served by the request for the diary contents of every Minister, Minister  of State and senior civil servant in the Administration? One would not mind if the citizen was alleging some gross conspiracy against him or her or the State by all of those ladies and gentlemen, but nothing of the sort was suggested. A cost of €10,000 was incurred by taxpayers who are crying out for additional services and who rightly complain that hospital services are inadequate to the needs of a modern country.
The significant costs incurred by requests of this sort are not met by the charging system and the Minister should have gone further than he has in amending the legislation in this regard. Opposition Members ignore the fact that the Government is not seeking to restrict the right of individual citizens to request, free of charge, information that pertains personally to them. It is rightly the case that individuals are not charged for requesting information about them held by any agency of the State. The change comes in the form of a new system of charges which will ensure that vexatious inquiries do not become the norm.
As a former journalist, I recognise that freedom of information has been great for the media. My former colleagues do not have to work at all to conduct inquiries or investigations. Investigative journalism has always been described as absent from Ireland and circumstances have worsened since the State decided to supply journalists with every bit of information they wished to write about. We have seen the same thing with Members of the House.
Mr. C. Lenihan: I do not mind being accused of being a poacher turned gamekeeper. I am a servant of the public in the first instance. I may occasionally write a few articles, but I am a full-time politician. It is ridiculous that this wonderful legislation has been used by the media over the last four years to inquire about the expenses of Deputies and Senators up to six times annually. That makes a mockery of investigative journalism and of our democracy. The public are treated to the spectacle of expense claims six times a year which gives them the impression of constant payments. Expenses are claimed on a continuous basis, but why go on about it? Is the public educated by these disclosures?
Mr. C. Lenihan: Are they somehow ennobled and able to make better decisions about how to change our democracy? They are not. Complaints about expenses were most spectacularly made by Deputy Gogarty who is a member of the Technical Group opposite. He said he would not accept the latest increase, but he has not repaid his expenses or his salary increment. That is the kind of hypocrisy we have in this House and we should be man enough and woman enough to accept it.
The new leader of the Opposition, Deputy Rabbitte, is prepared to go to any lengths to debase himself in front of his media friends. I was amazed at his contribution which was over the top, but the House has heard over the top contributions from him before. We vividly remember the time when he told us that he had information in his possession which if true would rock the foundations of the State. We all know that related to Cardinal Daly. We know precisely where that led – it was totally untrue. Cardinal Daly had not interfered in any degree and, of course, there was no apology, but that is hardly the point.
I thought his contribution was tawdry and cheap and it was unfair to make this stupid and inane linkage to Cheltenham as if the Minister's presence in Cheltenham was somehow a grave sin against the public body because this important legislation was going through the House. It frequently happens that Ministers are absent from the House because of more serious matters than Cheltenham but when Deputy Rabbitte steps up to the microphone he is often prone to exaggeration.
I remember vividly a quote from the novelist Evelyn Waugh who said that the problem with the Tories and the Conservatives was that they never actually turned the clock back. I am glad to say that this Minister is not afraid to turn the clock back. I am not a Conservative or a Tory but a left-winger—
Mr. Killeen: There are members of all political parties who are committed to an open and ethical political regime and they constitute the vast majority of all parties and of non-aligned Deputies. There is considerable disagreement as to the best means for achieving this regime. The Labour Party Bill which is before the House tonight and the Government Bill which is before the Seanad are very similar in a great many respects but they show some differences in approach.
Deputy Howlin when speaking last night claimed credit, and perhaps rightly so, for his party's role in introducing three pieces of legislation which he claimed had an enormous and beneficial effect on public life in this country and on political life in general. They are the Ethics in Public Office Act, the Electoral (Amendment) Act and the Freedom of Information Act. It is a matter of historical fact that all parties supported the new regime to a considerable extent. It is also a fact that much positive change has come about under this new regime but it is also manifestly a fact that all three Acts have required amendments and that they will also require further amendment. The regime which has emerged under the various  Electoral Acts is patently daft and unworkable. I suspect that all those who had the misfortune to act as election agents during the general election last year would agree to a substantial extent with that view, as do most candidates. I understand that more than 80% of those who stood for election had inaccuracies in their returns.
I urge the Government or the relevant committee to initiate a review of that legislation as a matter of urgency with a view to preserving the integrity of the legislation while weeding out the problem areas. The Ethics in Public Office Act has been improved by amendments in 2001. Both the Act and the code of conduct can be greatly improved and should come for review on at least an annual basis. One of the difficulties which our experience of the Acts has discovered is that a great many people are confused by the provisions of the Acts. In the hustle and bustle of political life it is easy to lose sight of the fact that one should have a yardstick against which to measure political actions.
Most speakers have acknowledged that the Freedom of Information Act also requires amendment. The Bill before the House explicitly provides for a one year extension of the existing five year deadline for release of Cabinet papers. It also provides for a consultative process over that additional time. I have no difficulty in principle with such a process although for a variety of reasons I would not charge the Information Commissioner with overseeing that process. The Bill chooses to ignore the work done in reviewing the Act by a group of senior civil servants, which has become the basis for the Government Act.
I tend to agree infrequently with my colleague, Deputy Conor Lenihan, but I agree with him about the cheap shots about Cheltenham. Those remarks are no credit to those who make them and they do not contribute to the betterment of political life. The references made last night to the provision for handicapped persons benefited no one and they came from a party which has a particularly bad record in that regard.
As politicians we tend to look at the effect in electoral terms on people who have promoted regimes of ethics. Former Minister of State, Eithne FitzGerald, was a hard-working and pleasant Deputy but was given no electoral credit for the hard work she put into the original Act.
Mr. Killeen: The breathless headlines in the media coverage of a former Fine Gael TD for a minor and very insignificant transgression under the Electoral Acts made me think that the man must have robbed a bank. It was a very tiny transgression. It highlights two factors which create difficulty in relation to the entire regime and which all of us as politicians have difficulty in addressing. There is a deal of ignorance of the requirements of the various Ethics and Electoral Acts not on the part of the public but of ourselves  and that is sometimes compounded by changes in the Act. The sensational coverage by the media of the release of information on expenses has done some damage and will continue to do so. Some journalists clearly believe that the Government proposals will have an effect which I do not believe they will have, and they are fearful in that regard.
I do not think the Opposition can be blamed for taking advantage of an opportunity where journalists are berating the Government and prepared to print what they are saying in this regard. In the same way as good politicians benefit from a regime where there is provision for ethics legislation and where ethical considerations hold sway, likewise, good journalists would benefit if there was a worthwhile press council. It would acknowledge the central role of the media in parliamentary life and in the dissemination of facts to the public. It would also bring under control the libel law regime which is the only current alternative.
There are a number of negative aspects to the Freedom of Information Act and some have already been mentioned. One of the difficulties is that officials are becoming more reluctant to commit important facts and advice to paper. This has the potential to become a serious difficulty. Deputy Lenihan referred to the cost of the administration of the Act. In the particular case which he cites there are factors besides the amount of material to be waded through in the diaries. It must also be assessed, considered for release and have personal or sensitive material deleted. Any third parties who might be affected must also be notified. That takes time and a lot of administration and it creates difficulties when people pursue requests that are manifestly unfair and unreasonable. It seems officials have become more inclined to suggest that people seek advice and information through the Freedom of Information Act which would have formerly been made freely available to them. This is likely to become an even greater problem if charges are increased, which they must be if the Act is to operate in a meaningful way.
There are particular problems relating to sensitive Cabinet papers being released. I think that virtually everybody would accept that the need for competent Government would override certain considerations under the Freedom of Information Act. To be fair, that is what is provided for in both Acts.
On the operation of the Freedom of Information Act, the Ombudsman should not serve simultaneously as Information Commissioner because of the volume of work involved and the nature of the work. It would be better if the roles were kept separate.
The report of the Information Commissioner is interesting. I do not think it differs from the Government's approach in the way some people sought to illustrate. I thought it pointed to the conflict that would arise if the Information Commissioner were to be charged with the role of  overseeing whatever consultative process were in place under this legislation. As I said previously, much consultation has already taken place. Having read almost all the information, it is likely that virtually all the changes proposed by the Government would arise in any event on foot of the proposals.
Mr. Fleming: I am pleased to speak on the Freedom of Information (Amendment) (No. 3) Bill 2003, which is connected to the original Freedom of Information Bill 2003. I am a supporter of the Freedom of Information Act. It is essential for good government at international and local levels. If it did not exist we would have more problems than Members seem to have with the release of information. In my few short years in public life I have seen no information released into the public domain about which I am concerned. I can think of nothing that has damaged a public body about which information was released.
Perhaps I have a different view on the matter from some of my party colleagues. During the previous Dáil I was a member of the Oireachtas Joint Committee on Finance and the Public Service. We dealt with the Freedom of Information Act and the Information Commissioner on an annual basis. The Department of Finance presented an annual report to the committee. The two reports are not synchronised because one is published in April and the other covers the calendar year. I am pleased the legislation deals with that issue.
The bulk of the information given in these instances has been personal information, which is important. Various Ministers and Ministers of State who attended the committee referred to costs. A small number of isolated cases of possible vexatious claims for information lead to excessive costs. Hard cases lead to bad law and I do not think the legislation should be changed on that basis. A proper appeals mechanism should be put in place to overrule the release of information if it is deemed vexatious. I would be concerned that a charge would cause unreasonable difficulties.
In recent years motorway projects were proposed for County Laois. Various landowners sought information from the National Roads Authority under the Freedom of Information Act in regard to the work carried out on their land. As the National Roads Authority was not covered under the Act, I am pleased the previous Government succeeded in bringing the body under the Act. People had to seek information through the local authority. The local authority procured the information from the NRA and ultimately the people got it. I am concerned about the proposal that information could be refused under the proposed legislation because it might cause significant disruption to the functioning of an organisation. That is not a good reason for refusing information. Public bodies should organise information so that it is readily accessible. The  reason it causes such disruption is because they have no proper filing system in the first instance. It would be better if public bodies had a proper filing system rather than complaining about people seeking information that should be easily accessible.
It is extraordinary that last week the committee considered an EU proposal called “Commercial Exploitation of Public Documents.” This related to information across Europe being publicly available and the valuable use to which it could be put in the era of information technology. I would not like an Irish proposal to row back on what is the situation throughout Europe. Tomorrow the joint committee will meet on this matter, which is a worthwhile exercise. The Seanad is debating the matter all week. We are debating the issue tonight in the Dáil and the joint committee will meet for a full day tomorrow to deal with the issue. The Secretaries General who drafted the report, the Information Commissioner, representatives of the National Union of Journalists, national media proprietors and the Irish Council of Civil Liberties will attend the committee.
For the purpose of classification in advance of Thursday's meeting, the members of the Committee may wish to note that the Group was set up by the Government to assist them in their consideration of a number of important aspects of the Freedom of Information Act 1997. Our recommendations were prepared as advice to the Government and as a contribution to their deliberations on this matter.
It is important for people not to attach too much weight to the report because they have stated that it is just a contribution to the wider review the Government is carrying out. That was not the beginning or end of the process. Just because something may or may not have been in the report does not prevent it from being included in the final legislation.
I am pleased that the Information Commissioner has provided a helpful analysis. While he is charged with the implementation of the Act, it is important that his role is kept separate from those who are responsible for drawing up the policies. It is the job of the Oireachtas to set out the policies and draft the legislation.
Mr. Fleming: I will be pleased to discuss that issue tomorrow. In regard to future legislation, I hope there will be a clear demarcation line. I am making the point that these are two separate issues. While I am not attempting to be critical, I want to point out that there are two different jobs  to be done. The review of the existing legislation is absolutely within his brief, which I welcome.
The issue of politicians' expenses has been referred to. It was news the first and second time it was mentioned, but it does not even make the newspapers now. The message from Government is that because officials may not want their memos released they will be less inclined to write controversial memos to Ministers. I view that differently. The Freedom of Information Act brought a change in culture to the operation of public bodies. For the first five, six or ten years there will be fear. Eventually people will become sufficiently confident to put their views on paper and stand over them. I would hate to think that civil servants were so narrow in their thinking that they would be afraid to commit something to paper in case it might be released in due course under the Freedom of Information Act. A lot of good could come from the Act.
I have no problem with the Government's proposed ten year timescale in regard to Cabinet papers. I am concerned about other issues. One paragraph states that if the release of information shows a public body in an adverse light, the head of the section could refuse to release information. I would take that to mean that information could only be released if it was positive propaganda, with which I would have a fundamental problem. If information is in the public interest and in our interest as legislators, we are entitled to access it, regardless of whether it shows an organisation in a positive or negative light. I would be concerned if the only information released was information which would show an organisation in a positive light. I say that having not been involved in the political process for too long. In many organisations throughout the country there is a culture of resisting the disclosure of information unless obliged to do so. The Act has forced welcome change in this attitude.
I hope the Oireachtas Joint Committee on Finance and the Public Service holds a constructive debate on this issue, especially given the number of witnesses who have been invited. I do not share the concerns of those who have criticised the holding of the meeting at a time when the Government's Bill is before a House of the Oireachtas. It is a positive development. I hope that at the end of the meeting, members of the committee will be better informed and in a position to make positive suggestions to this debate when it resumes in this Chamber in the coming weeks.
Mr. Boyle: When I first became aware of the Government's intention to amend the Freedom of Information Act, I considered it to be a cynical  rather than a sinister move. It appeared that the Government wanted to pull down the shutters and retreat to the bunker and that it did not wish to be exposed to the cold light of reality in terms of how it conducted its affairs in its previous term and how it will conduct itself during this Dáil. It then became apparent to me that its proposals are sinister. Under the guise of maintaining that the Bill is necessary to extend the period that must elapse before the release of Cabinet papers from five to ten yeas, it has included a raft of amendments that will radically affect the intent of the Act and its ability to act as a democratic tool for citizens. This became evident in the course of yesterday's debate on the Labour Party Bill, when the Minister for Justice, Equality and Law Reform ironically appeared to have adopted the role of witch-finder general when he attacked a public servant on the grounds that he told the truth. It was especially regrettable when the public servant in question has a particular responsibility to review the Freedom of Information Act and appears not to have been properly involved in the process accompanying the review. In view of this, the proposal in the Labour Party Bill to allow for a one year period of further reflection and consultation is evidently necessary and should be wholeheartedly endorsed by every Member in the House.
If accepted, the proposal to hold a consultation process can only now take place after the Government's Bill has been presented to the Oireachtas. This is contrary to the usual practice, where consultation takes place after the heads of a Bill have been published. It means that a debate will take place at a time when most of the decisions have been taken by the Executive. It is especially regrettable that the Executive is prepared to behave in the least democratic manner possible in respect of legislation that is meant to enhance democratic behaviour. It is not acceptable to me or my party, nor to many other Members in this House. I commend the Labour Party for introducing this Bill and I believe it will receive sufficient support, at least from this side of the House.
There are a number of substantive measures in the Government's Bill that are especially objectionable. I question the proposal to impose fees on members of the public who seek additional information to which they should have access as of right. I would have thought that following the fiasco with the EU Commission over the €20 planning fee, the Government would have declined to take this approach. It stinks in terms of encouraging people to access their democratic rights.
Members of this Parliament will be undermined by the proposal that background information regarding the questions we raise in our legitimate role as public representatives will be barred from us in terms of seeking information on answers that were compiled. I do not know the motivation behind this, but it appears to be  an attack on our role as elected public representatives.
The most disconcerting aspect of the Government's proposal is the absence of a consultative process. While I accept Deputy Fleming's goodwill in this matter, I do not believe his assertion that the meeting of the Oireachtas Joint Committee on Finance and the Public Service constitutes a consultative process. It is something that will occur after the event.
The most sinister aspect of the Government's Bill is the proposal that it is for the Secretary General of each Department to decide on what may constitute relevant information for the purpose of disclosure. Such a provision in legislation that deals with freedom of information totally negates the concept. We might as well not have freedom of information legislation if this is what the Government seeks to achieve. I commend the Labour Party Bill to the House and offer it my wholehearted support.
Caoimhghín Ó Caoláin: I welcome this Labour Party Bill and offer it my wholehearted support. In March 1997, a few months before I became a Member, the House debated the Freedom of Information Bill. In the course of the debate Deputy O'Donnell stated: “Governments tend to preserve their interests and have gone to enormous lengths to retain information, the release of which would have prejudiced their being in government.” Deputy Woods stated: “The presumption that everything is required to be secret unless proved to the contrary is the single greatest obstacle to openness under this Government.” The Minister of State at the Department of Transport, Deputy McDaid, stated: “I can envisage the Government of the day or the public body which has possession of certain information being determined to plead the public interest in order to withhold information.” These are currently members of the parties in government, which is seeking to emasculate the Freedom of Information Act.
Freedom of information legislation plays an important role in the promotion of openness, transparency and accountability in government, which in turn leads to an improved system of government. The exercise on the part of the Government on this issue is sad because the Freedom of Information Act has been acknowledged internationally as an example of best practice. The Government's efforts to curtail it are, therefore, all the more regrettable. The proposed amendments to the Act will be a considerable setback for participatory democracy and the involvement of active citizenship.
Many speakers in this debate have pointed out that the Government has failed to engage in meaningful consultation in the review of the Act. The Information Commissioner was not consulted, nor was the Government's FOI advisory group or the many other interested groups, such as the NUJ, the Opposition parties – God forbid that the Government should consult with us – or  the Irish Council for Civil Liberties. The review process, which commenced on the re-election of the Government, was carried out in a secretive manner. It was not independent, but was undertaken by a group whose interest is to restrict freedom of information legislation and access to information that should be in the public domain.
The reasons put forward to justify the introduction of the Government's Bill are not credible. Recently, the Taoiseach explained that the five year rule on the release of Cabinet papers was impractical and dangerous because of sensitive negotiations relating to the peace process. That was totally misleading, especially as section 24 of the Act, dealing with the North, specifically prevents the disclosure of records where their release could adversely affect matters relating to the peace process.
Caoimhghín Ó Caoláin: With respect to the Taoiseach, his assertion on this aspect is false and highly objectionable to those of us who are deeply involved and interested in continuing the peace process and all it promises.
Caoimhghín Ó Caoláin: There are a number of proposals in the Government's Freedom of Information Bill which I find worrying. It would be difficult to enumerate them all or expand on them. I will only mention sections 19 and 20 now because I will not have time to go into detail. The exemption for letters between Ministers relating to matters before Cabinet, the exemption for records held by a State body relating to tribunals of inquiry and the extension on the exemption of Cabinet records from five years to ten years are all objectionable.
The five year limit for Cabinet records corresponds with the maximum life span of a Government. This means that records relating to a Government currently in power could not become subject to disclosure under the current legislation. I am particularly concerned that the five year rule, which was due to commence on 1 April 2003, relates to the Government which formed the 28th Dáil and which is now coming into its second term of office. People are speculating as to why this change is being made. Is there sensitive material pertaining to the honey deal done between the former Minister, Deputy Woods, and the representatives of the religious institutions that the Government does not want to see brought into the light of day?
Ms Harkin: Over the past few days I have listened to debate in the Dáil and Seanad on the freedom of information amendment. During that time I have heard a great deal about the expert group. The recommendations of this expert group have led to the drawing up of the proposed  changes in the Freedom of Information Act. I have heard no reference at any time to consultation with user groups, consumers, the advisory group set up to monitor the FOI or the Information Commissioner. It is as if the Freedom of Information Act relates only to senior civil servants, experts and those in government.
Before I was elected to the Dáil, I thought, naively, that freedom of information related to all of us, experts and non-experts. I believed that the Freedom of Information Act was enacted to allow the non-experts get access to information. Information is power. When people have information they are empowered. It is they who have the power, not the State or Government, permanent or otherwise. If information is power, then the withholding of information from the people is the withholding of power. That is the start of the abuse of power.
I have some serious concerns about this Bill. This legislation to restrict citizens' access to information is a significant setback to community and voluntary organisations. A core principle of the White Paper on Supporting Voluntary Activity is “openness, accountability and transparency in the relationship between the State and the community and voluntary sector.” This White Paper makes a further commitment to “provide access to and to share information relevant to the pursuit of shared objectives.” That statement now sounds hollow. The promise is empty and those fine words are shallow in light of this proposed amendment.
Another issue of concern regards what they have to fear. What are they afraid of and what could they be saying or advising that is not fit for the public ear five years later? Perhaps one explanation for this is the proposed definition of the word Government. The Information Commissioner has stated: “The proposed extension of that definition would admit of the interpretation of the expression “Government” as meaning a committee of officials, not one of whom is a member of the Government and indeed some or none of whom may be civil servants of the State or Government.”
Has the Government totally lost the plot? A meeting of spin doctors to concoct a possibly misleading presentation can be judged to be an exempted Government discussion and not open to public scrutiny. Perhaps spin doctoring has assumed such importance that it is now actually accepted as government. The fact that unelected people can be regarded as Government is a serious erosion of democracy.
The provision of information to people is awkward at times. It can be messy, inconvenient, time-consuming, troublesome and embarrassing. It can also threaten those who have something to hide. It can be downright difficult. Surely the provision of information to citizens is the hallmark of a system that values democratic accountability above administrative convenience. It is the mark of a Government that values sincerity above spin, that employs health care workers  rather than media monitors and promotes truth, openness and accountability above image, image and more image.
Last night the Minister for Justice, Equality and Law Reform told us that the Freedom of Information Act was being amended so that Government could reach decisions in the best interests of the community. I have only one question. Is the Minister telling us he cannot achieve that objective in the cold light of day? I commend this amendment to the House.
Mr. F. McGrath: I welcome the opportunity of speaking on this Bill. I strongly support the legislation, particularly the section dealing with the year's delay in changing the Act. All those involved in public life must be open, transparent and fair. This is an essential part of public life and part of our public and civic duty. If anyone has a problem with that, I question whether he or she should be involved in public life.
I was amazed earlier to hear that a former journalist, Deputy Lenihan, will vote against this Bill later tonight. It is also disgraceful that two Ministers responsible for restrictions on the Freedom of Information Act are in Cheltenham at the races. This is not a cheap shot but fact. This shows the arrogance and contempt the Government has for the people and for freedom of information.
This is an issue of major national importance which also concerns taxpayers. The freedom of information legislation has already saved taxpayers approximately €700 million. It saved them money particularly in regard to the national stadium. Freedom of information concerns not only journalists seeking information for the public good. It is important to remind journalists and the media that they too have a civic duty to be open, responsible and fair.
In my eight months in this House I have seen examples of unfair reporting and lack of balance and fairness. This is particularly true of some of our Sunday papers which seem to have a problem concerning some TDs and will not give them the right of reply, particularly when the newspapers themselves are wrong. The public would like to see some freedom and some real information from the media. The people do not always get the truth in the news. We all have a civic duty to speak out on this injustice and must let the people know that we do not always have a free and balanced press. The press has a moral and ethical duty to report fairly and properly.
It is essential that we stand up for our rights in regard to the broad issue of freedom of information. We have too long a history of scandals, tribunals and rip-offs to ignore the need for access to information. Sleaze has occurred in politics. A quality freedom of information Act can act as a preventative measure. There is nothing wrong with openness and accountability. It should be a central part of public life.
Yesterday, I heard the Taoiseach say that we are among the most liberal in Europe regarding legislation and freedom of information. That is  wonderful. There is nothing wrong with that. If we are the most liberal let us use that as an example of good practice. It is something to be proud of in the EU and should not be taken back or destroyed. There is nothing progressive or democratic about this attempt by the Government to delete sections of the Freedom of Information Act. Deputies pretending to be liberal and democratic have now been exposed as frauds. If they are really serious they will support this Bill tonight.
It is progressive legislation and should be supported by all shades of opinion in this House. The Bill before us is above politics and political parties and should be supported by us all. I urge Members to stand back and reflect on it. Let us not destroy the recent efforts to save politics. This Freedom of Information (Amendment) Bill is an attempt to save politics and bring the public along with us so we have an open and democratic society. We must not forget that 38% of people do not vote because they do not like sleaze and have no confidence in the political system.
It will be a major step backwards for Irish politics if the Government blows this Bill out of the water. It will also be a step backwards for taxpayers and citizens. I urge all Members to unite and support this progressive legislation which has the potential to enhance and develop our democracy, which is something we should never take for granted.
Ms McManus: When the history of this Government comes to be written I believe that the publication of its Freedom of Information (Amendment) Bill will be regarded as a defining moment. It will be regarded as the point at which the Taoiseach and the Tánaiste finally lost the plot.
It is a political truism that the longer a Government remains in office, the more it loses touch with the public and with reality. Fianna Fáil has now been in Government for so long – 16 years with the exception of the two and half year period of the rainbow Government – that it has lost all touch with reality and no longer even bothers to disguise its contempt for the public and the Oireachtas.
It is clear from their approach and demeanour that Ministers regard having to present themselves in, and answer to, the House as a bothersome experience. Nothing exemplifies this arrogant approach more than the decision of the Minister for Finance, Deputy McCreevy, and the Minister of State at that Department, Deputy Parlon, to absent themselves from the Oireachtas when both Houses are considering matters relating to the freedom of information issue for which they have ministerial responsibility. It is bad enough that they should decide not to be here,  but what makes it especially offensive is that they are absenting themselves from the House in order to be at Cheltenham. This is a deliberate snub to the Dáil and to the Irish public. What this gesture says is: “You may consider this issue to be important, but we don't care.”
For democrats, freedom of information is a touchstone issue. I regard the Freedom of Information Act introduced by my colleague, Eithne Fitzgerald, as one of the most important legacies of the rainbow Government. The Act was introduced specifically to end the climate of secrecy and unaccountability that made the sleazy standards of the Haughey era possible. The Act has been an outstanding success. It has significantly increased the flow of information to the public. It has exposed the process of decision making in Government to public scrutiny. It has limited the capacity of Government to mislead the public. It has made it more difficult for Ministers to adopt one position in public and another one in private. Of course, these are some of the reasons Fianna Fáil and the Progressive Democrats want to turn the clock back and revert to the Haughey era when citizens were kept in the dark.
Neither the authors of the high level report nor any of the few Government members who have come out to defend the Government's proposals, have been able to point to a single instance where the public interest has been damaged by the operation of the Act as introduced by Eithne Fitzgerald. As a direct result of the Act, we know a lot more about the poor state of our health services and we know about the efforts of the Minister for Finance to impose further cutbacks in this and many other areas. Are the public not entitled to this information?
The only consistent argument that has been put forward by the Government is that the existing Act somehow inhibits what it calls the deliberative process. In effect, what it is really seeking is a licence to say one thing in public and another in private. The amendments being pushed by the Government with such vigour are not minor technical amendments that will have little impact on the Act or on the rights of citizens to access information. Turning logic on its head in a way that only he can, the Taoiseach told the Dáil yesterday that the Act would be even more liberal if the Government's amendments are passed. It is pleasant to see that the Minister of State, Deputy Brian Lenihan, finds this amusing.
Let me list just some of the more damaging consequences of the Government proposals: it will widen the definition of Cabinet papers to include sub-committees involving officials – as the Information Commissioner pointed out yesterday this involves a “constitutionally unrecognisable definition” of Government – Cabinet papers will now be exempt for ten years rather than five; the appeals process is being set aside for deliberative policy documents when the process is certified as ongoing; background documents relating to the setting up of tribunals are  to be exempt; background documents for parliamentary questions are to be exempt; charges are to be levied for all non-personal requests and charges to be levied on appeal. These changes represent a major gutting of the Act.
Ms McManus: The balance will be tipped away from the public interest and back towards Government and the interests of secrecy. In contrast, the Labour Party Bill offers a rational and logical alternative to the Government proposals. Our Bill would effectively put the Government proposals on hold for a year and would provide for a genuine process of consultation and discussions with user groups and interested parties.
Any reasonable Government would accept that this is a reasonable proposal, but this is not a reasonable Government. As I said at the outset, Fianna Fáil has been so long in Government buildings that it has lost touch with reality. Arrogance has replaced answerability. I presume those on the Government side are familiar with the term “hubris.” It is a Greek term meaning overbearing pride or presumption usually leading to retribution. Ministers in this Government are guilty of unprecedented pride and presumption. Retribution will be swift and complete when the people get their opportunity.
Mr. Costello: I welcome the opportunity to speak on this issue. The Freedom of Information Act, as it is currently constituted, represents an important link between the citizen and the State. The Labour Party's Bill recognises the need for a proper review of the 1997 legislation with widespread consultation, not just involving an expert review group but including all the relevant stakeholders – the public, consumers and, above all, we need the views of the Information Commissioner who has been monitoring the Act over a period of time. While there is an argument for tightening up its administrative workings the public should not, under any circumstances, tolerate the complete gutting of the Act as presented in the Government amendment to it.
It appears that the Government is intent on dismantling most of the important items of legislation introduced by the rainbow Government that were directed towards the reform of the State and changing the way public life was conducted. In terms of reforming public life, which was so badly undermined in the 1980s and 1990s by a series of scandals involving politicians and their dealings with businessmen, the rainbow Government introduced three significant Acts; the Electoral (Amendment) Act, the Freedom of Information Act and the Ethics in Public Office Act. These were all attempts to clean up public life and introduce proper standards of openness, transparency and public scrutiny in the way the State is run. The Government has set on a course of destroying the main elements of these Acts, one by one. In the previous Government, the  then Minister for the Environment and Local Government made an absolute mess of the Electoral (Amendment) Act trying to fillet its main provisions. The Government is now trying to keep the public in the dark about how it is conducting its business. In doing so, I suggest that the Government has already compromised the Ethics in Public Office Act.
Can we expect more? The Government is set on dismantling more of the radical changes to Irish society that the rainbow Government introduced – the re-imposition of third level fees appears imminent despite the meek whimpers we hear from time to time from Progressive Democrats backbenchers. The Labour Party will oppose any move to turn back the clock on these important decisions that were implemented during the period of the rainbow Government. We are proud of the Freedom of Information Act. We are also proud of the abolition of third level fees and we will oppose any attempt to reintroduce them.
I detect mutterings of discontent from the Progressive Democrats with regard to fees. I assume the attack by the Minister, Deputy McDowell, on the Information Commissioner, Mr. Kevin Murphy, in the House last night demonstrates a raw nerve that has been hit by the Freedom of Information Act, as by so many other issues. Are the Progressive Democrats prepared to be the Fianna Fáil watchdog, as they promised before the election? Are they prepared to say that the amendments to the Act, as proposed by the Government, are a blatant denial of openness in public life, as they would have said previously?
We should be making public life as open and participative as possible. The Government amendments shield and conceal information from the public rather than encourage citizens to inquire about how their State is run. I cannot imagine a more condescending or arrogant message being sent from a Government to the people it purports to serve. Excluding the public from accessing information will only alienate more people from politics and public life. How can the Government, on the one hand, openly advocate greater participation in politics while, on the other, present such a secretive and paranoid set of amendments.
Jonathan Swift put it in a nutshell: “Providence never intended to make the management of public affairs a mystery to be comprehended by a few persons of sublime genius.” Perhaps the geniuses on the Government benches will reflect on those words.
Mr. Quinn: I am saddened to have to address this matter and even more saddened that the Member representing the Government is a person, unlike his brother, for whom I have a lot of time and for whom, I believe, this is not a pleasant task. As a professional lawyer, he knows the intrinsic value of truthful evidence in any court of law to protect the innocent from wrongful pros ecution. By extension, the value of truthful fact for citizens in relation to how they are dealt with by the State is something that very few of the 187 states represented in the United Nations demonstrate for their citizens.
It is necessary to go back to the reason the programme for Government negotiated by the Labour Party and Fianna Fáil in 1992 attempted to address the issue of freedom of access to information. We were in the wake of what had precipitated the fall of the first Progressive Democrats-Fianna Fáil coalition. That was the confrontation in the Goodman beef tribunal and the statement made by the late Mr. Justice Hamilton, who chaired that tribunal, that if questions had been answered truthfully in this House by the relevant Ministers of the Fianna Fáil Administration on the issue of insurance and agriculture the tribunal would not have been necessary. That was the first major tribunal of recent times and from it arose the momentum for freedom of information legislation. Ten years later and given the tribunals we have had since then, I would have thought the Government would not have lost faith in the necessity for openness, transparency and accountability.
It is interesting to listen to Deputies Fleming and Conor Lenihan saying they were always in favour of this and that Fianna Fáil believes in the principle of openness. I recall negotiating with the Deputies who are now Minister for Foreign Affairs, Taoiseach and Minister for Education and Science who then represented Fianna Fáil. Deputy Howlin and former Deputy Mervyn Taylor sat across the table from them during Christmas 1992. The Labour Party had made the question of access to information a core part of our campaign in the election of November 1992. It was rejected out of hand by the Minister, Deputy Cowen. He said that under no circumstances would Fianna Fáil contemplate such legislation and that they could not possibly give a commitment to introduce it because it would make the workings of Government, in which he had been a Minister for less than a year, absolutely impossible. I paraphrase his sentiment but I accurately record the strength with which he conveyed it.
What resulted from that? We failed to negotiate an agreement in respect of this matter and it was referred to the respective leaders of the two parties, former Deputies Reynolds and Spring. The compromise is contained in the programme for Government published in January 1993 where there is a long and comprehensive commitment to freedom of information, as would befit the Fianna Fáil Party. It states, “We will consider the introduction of freedom of information legislation.” It was a face saving notification of the principle but no commitment to do anything other than consider it.
Less than two years later, following the fall of that Government, the three parties that formed the rainbow coalition produced a programme for  Government that was published in December 1994 and contained the following commitment:
There is a clear need for greater openness and accountability in Irish life to allow much better public access to information in the possession of the State Departments and agencies, both about themselves and the workings of the Government and Administration. We are, therefore, committed to the enactment of freedom of information legislation to cover both central Government and the broad public sector in 1995, modelled on the best practices in other countries. The legislation will be prepared so as to ensure that necessary exemptions are kept to a minimum and it will contain a mechanism for independent review and appeals.
I accept that the time has come, following the implementation of that legislation, for an independent review and to consider how it is working. No such legislation could be deemed to be perfect. I do not believe the process the Government has embarked upon and the indecent haste with which it is pursuing the implementation of this legislation meets the sprit of that commitment or any of the sentiments expressed in this House or in the Seanad.
The Labour Party proposal is eminently sensible and reasonable. Let us freeze-frame any change in the legislation for a year while we make a full and comprehensive review of the legislation so that we can achieve the best practice from everybody's point of view, including officials in the Civil Service, individuals, Ministers and Ministers of State, and elected representatives at national and local level.
Mr. Quinn: That is the least one would expect from a reasonable Government or from reasonable Government parties. Instead, we have the nonsense that was put on the record of the Seanad on 5 February by Senator Mansergh who, when challenged by Senator Ryan on the Order of Business that the Government was contemplating filleting the Freedom of Information Act, attempted to suggest, with all the skill and ability a spin doctor and adviser can command, “Several months before Fianna Fáil entered Government with the Labour Party in 1992 the former Taoiseach, Albert Reynolds, put out the boat in relation to freedom of information.” Albert Reynolds put out a lot of boats but this one sank at the first opportunity when the programme for Government between Labour and Fianna Fáil was being negotiated.
This House should extend for one year the current provisions of this legislation. It has done untold good for this republic and for its citizens. It has restored faith in our administration and has changed the culture of decision making within our Administration, for permanent civil servants  and elected representatives. The attempts to strangle it in the manner articulated by Deputy McManus will simply fuel the cynicism already out there in respect of the integrity of public office in the State. That is in nobody's interest, least of all elected representatives such as those in this House. I call on all of them to support this amendment.
Minister of State at the Department of Justice, Equality and Law Reform (Mr. B. Lenihan): This is a Private Members' Bill but the discussion is on the contemporary controversy about official information and access to it. Naturally the Labour Party Deputies who contributed in the past few minutes pointed to the Freedom of Information Act as a Magna Carta of achievement in terms of their contribution in government. Nobody would take issue with that. The Act has been in operation for five years. It has been extended to cover 370 public bodies rather than 67 bodies. Were I to make a claim for the last Government, of which I was not a member, it would be that it implemented the Act. As many Deputies are only too well aware an Act and its implementation are two entirely different processes, one of the first lessons I have learned in government. When one looks at the culture of secrecy which we inherited from the British arrangement, the Freedom of Information Act was a remarkable revolution in our thinking about official information. We can overstate the extent to which the Government is proposing to alter matters. The Government is committed to openness and official information. It is important that we have that public access to official information but it must be consistent with the public interest and the right of privacy.
I was struck by Deputy McManus who said that access to official information had weakened the Government on many occasions and had exposed the inner workings of Government. The Government is part of the Constitution as well. The proper working of the Government requires the utmost candour of communication between the members of the Government. It also requires that arguments about public policy within the Government are reduced to writing because the discipline of reducing an argument to writing is an important one.
I am concerned at the extent to which our official information arrangements expose the inner workings of Government because I believe they will lead to an arrangement where arguments are not committed to writing. When arguments are not committed to writing they do not receive the same scrutiny and analysis that argument requires. I am not convinced that if the Deputies opposite are fortunate enough, after the next general election, to form a rainbow Government of some type, it would not view this issue as a priority because the strength of the Executive is an important issue in our Administration as well. The Executive has to have the power to have some inner working of itself because it is the body which, under the Constitution, gives direc tion to Parliament and to policy. We can all argue from time to time about whether that direction is present and whether it is the right or the wrong direction. We are not entering into that argument now but without that direction from the Executive our State does not have leadership.
The official information question has to be looked at by the Government. We can and will, no doubt, argue when the Dáil resumes and when the Bill arrives here from the Seanad about the elegances and the inelegancies of how this matter has been transacted. The fundamental issue is that there has to be candour of discussion within the Government. We cannot have Ministers going around saying, “Do not put that in writing, this is the position.” We cannot have public servants, when they formulate arguments for public decisions, saying, they had better not put that in writing because they would be reading their own opinions in a newspaper in a few weeks' time. Neither can we have Ministers in preparation for meetings exchanging candid views and questions because they will not exchange them in writing if we continue with the present arrangement. That is not a popular point of view and Deputies opposite will argue that the Government has transgressed in many respects. What it is proposing in this respect will be secretly admired and in the fullness of time will be accepted.
Mr. Kenny: I commend the Labour Party for tabling this Private Members' Bill and thank Deputy Rabbitte for allowing me a few minutes of his time. This is a debate which this House should not have. We are discussing a Bill which it should not have been necessary to draft. It is a response to a Government action which should not have been taken. Today the Government guillotined Committee Stage of the Freedom of Information (Amendment) Bill in the Seanad. Tomorrow it will ram it through Report Stage with supreme political arrogance and a new-found aggression. Tomorrow, at the request of the Fine Gael Party, the Joint Committee on Finance and the Public Service will hold hearings to discuss the Freedom of Information Act and the recently conducted review and to hear from some interested parties.
The Government has conducted what it calls a major review of the Act in a way that is completely contrary to its own policy of pre-legislative consultation. It did not consult the public, Opposition parties, the NUJ, the Information Commissioner or community and voluntary bodies. In the name of all these interested parties, surely somebody on the Government benches should point out, to whom the Minister for Finance called the numerically challenged people of the country, who ordered this review? Who in  Government initiated this review and for what purpose?
This week was one where the Minister for Justice, Equality and Law Reform could have done with some anger-management therapy. His fury at the Garda for leaking a report on the penalty points system soon stretched to the Information Commissioner, Mr. Kevin Murphy, an individual whose probity, impartiality, and eminence has always been beyond reproach but he dared to challenge the Government. The former Attorney General decided that the Information Commissioner needed the parliamentary equivalent of the belt of the crozier for daring to demur. Fianna Fáil's last election manifesto stated:
We recognise the central importance of the Freedom of Information Act in ensuring transparent and accountable public administration. We will ensure that the Act covers all significant areas of public services involving those both currently in place and such new services as may be established in the future.
What is the Government of Ireland if not the quintessential public administration? This new deal will specifically exclude both to save the Government's blushes. The postman always rings twice and events like the Abbotstown fiasco would land bang on the doorstep. Members will recall the memorandum on departmental spending that was inadvertently released. The prospect of that happening on a weekly basis was too much to handle. The bottom line here, saving the blushes of Government, wins every time over the public's right to know. In this and other areas the public knows it is being conned. It knows it will never receive the unvarnished truth and instead will get plenty of publicly-funded spin.
By pressing on with this legislation the Government is putting a pebble in the shoe of every voter. They may be able to continue walking but that little irritant will still be there, that knowing feeling that one cannot trust the Government and what it is saying. There is more going on but the Government is determined to suppress it.
I strongly support the Labour Party Bill. The Labour Party, like my own party, is endeavouring to use reason and commonsense to persuade the Government to row back from its attack on the Act and to engage in a meaningful and open debate. Unfortunately, I have heard nothing from any Member on the Government side that convinces me that this Administration is for turning on this issue. The Government should learn one lesson from this debacle – when one is in a hole, stop digging. It should accept this Bill, take a year out, give the Freedom of Information Bill the time and space it needs for mature and sensible reflection and debate. It is the least Ireland and its people deserve from a Government that appears to have lost its way and adopted an utterly arrogant and uncaring attitude.
Mr. Rabbitte: I thank Deputy Kenny and his colleagues, the Green Party, Sinn Féin, Indepen dent Deputies and Deputies from the Fianna Fáil side of the House who supported our Bill, but I am not sure whether they will vote for it. It is the first time I have ever been associated with a Private Members' Bill when the measure before the House attracted no criticism from the Government. Not one Deputy criticised the Labour Party Bill before the House. That speaks volumes in the absence of the two Ministers responsible for this measure who are in Cheltenham. Deputy Killeen, with whom I have a great measure of agreement, felt that was a cheap shot. I am not sure it is a cheap shot. The two Ministers who rail-roaded this Bill through the Upper House in the middle of the night as though it was an emergency measure do not bother to present to the House to pilot it through. I cannot see how that is a cheap shot.
The Government, in the absence of those two Ministers in Cheltenham, sends in its two leading advocates, two eminent senior counsel, to present arguments why the Labour Party Bill should not be taken on board and they do not make any. The Minister of State, Deputy Brian Lenihan, says the Freedom of Information Act as we know it is the Magna Carta of Labour Party achievement in Government. However, he wants to reverse the Magna Carta because that is what his Government is about to do. The Minister for Justice, Equality and Law Reform, Deputy McDowell, could not find fault with the Bill other than to say in passing that he found it confusing and complex. If the Minister finds this Bill confusing and complex, Government, the Department of Justice, Equality and Law Reform and the Garda have gone to his head. It is neither confusing nor complex.
As Deputy Quinn said all that is required is to freeze frame the existing Act while we engage in proper public consultation. I have reason to believe Deputy McDowell can get his mind around that concept. I do not think he has any difficulty with it. It is extraordinary that, at the end of this Private Members' debate, no arguments against the Bill have been advanced. That illustrates the single-minded determination of the Government to see through a measure conceived in secrecy. We were not advised about it prior to the general election although the Taoiseach did make a speech at his Ard-Fheis prior to the general election praising the Freedom of Information Act and giving the impression, something he is very good at, that he had something to do with it.
Deputy Quinn put on the record of the House an interesting historical titbit to the effect that when he sought to negotiate a commitment to a Freedom of Information Act in the then programme for Government of Fianna Fáil and the Labour Party, the then Minister, Deputy Cowen, said: “No way, over my dead body.” That seems to be the consistent position of Fianna Fáil. When it found itself confronted with this on coming back into Government it vowed to get rid of it. It kept its intentions a well guarded secret until  after the general election and then set about giving directions to a committee of eminent civil servants who, as Deputy Richard Bruton pointed out last night, are on one side of the argument, to get on with it.
Mr. Rabbitte: Claims that the Freedom of Information Act impedes good government are not true. I take Deputy Fleming's view that it will take a little time for this to bed down and when civil servants get used to it, they will work it. It will enhance quality. The Minister's arrival into the House reminds me of another argument he made last night about not releasing back-up information for parliamentary questions. He said we could not operate that way because the information is often rubbish which one could not rely on anyway. If that is the case, the quality might improve as would public information if this Act remains in place. The truth will out. If there is merit in the argument, why not accept the Labour Party Bill? We do not have closed minds on the subject. We should extend the Act for another year, let the Information Commissioner who is the watchdog convene a proper process of public consultation, and let us take evidence from the Government and Deputy Woods who, in 1997, thought it was a half measure – window dressing. He denounced it because it did not repeal the Official Secrets Act. Let us hear from Deputy Woods. I would like to ask him a few questions about how he slunk off into the night to negotiate with the religious congregations a deal for which taxpayers will be paying for the next ten years. I would like to hear what Deputy Woods has to say on that.
Mr. Rabbitte: He said: “It is a minimalist carefully hedged in Bill which if interpreted in a certain way will make very little practical difference to the administration of the country.” When asked about how he reconciled that with the current position he said: “It goes to show that predicting the future is not an exact science.”
They say the past is a foreign country. It seems the past is a comfortable country for the parties in Government. They want to revert to the culture of secrecy which dominated the past. I cannot see how the Minister for Justice, Equality and Law Reform, Deputy McDowell, can argue that the changes are not major. Yesterday the Taoiseach went so far as to say the current Act is liberal and will be even more liberal when he makes  amendments to it. That is not the view of the Information Commissioner.
Mr. Rabbitte: I do not know why he should not evaluate the performance of the Act. I do not understand why the Minister objects to him doing so. It is fair to remind the Minister that when on this side of the House, he would not object to it.
Mr. Rabbitte: The Information Commissioner concluded that the provisions of the FOI Act as they stand are more than sufficient to protect all the essential interests of Government. Nothing in the operation of the Freedom of Information Act during the past four years suggests otherwise. That was the view of Mr. Kevin Murphy when addressing the Freedom of Information annual conference on 10 October 2002. The Minister said last night he had not had an opportunity to read Mr. Murphy's report but I am sure he has since read it and noted that he is concerned about significant areas such as the widening of the definition of Cabinet papers which leads to a whole new definition of Government. Government, as  we all know, is defined in the Interpretation Act 1937 as being akin to the definition in Article 28 of the Constitution. We now have a situation where the new definition of Government includes any committee of officials. It is extraordinary that the Government has gone to the lengths, in this Bill, of devising and creating a new definition of something as straightforward as Government and as well understood not only in constitutional law, but in common parlance as Government.
It is regrettable that we are in a situation where something which the Minister of State, Deputy Brian Lenihan, believes to be a Magna Carta for the future character of our democracy is to be reversed. If there is anything in the arguments which justifies Secretaries General being able to certify documents as unreleaseable to the public because the subject matter is ongoing – we can think of a number of matters where it could be used by creative Secretaries General – that could be discussed within the framework that would be set up under this Bill. Why is Government determined to railroad this Bill through in this fashion?
Mr. Rabbitte: The Minister of State got no further than section 12 on Committee Stage in the Seanad. The Government guillotined the Bill and will take all Report Stage tomorrow. That typifies the disregard for the Oireachtas in what is an arrogant, high-handed and regressive decision by the Government.
Broughan, Thomas P.
Durkan, Bernard J.
Higgins, Michael D.
Ó Caoláin, Caoimhghín.
Ó Snodaigh, Aengus.
Nolan, M. J.
Ó Fearghaíl, Seán.
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