Wednesday, 9 March 1988
Seanad Eireann Debate
Mr. B. Ryan: This issue of freedom of information is admittedly fashionable in some cirlces. It is also somewhat difficult and, because it is difficult and because it is not an easy political issue, it tends to be put on the long finger. I introduced this Bill because of a clear need for a comprehensive legislative framework to enable the ordinary citizen to know about Government decisions as they are taken and the way they affect him. It is a conscious attempt to ensure that the Irish administrative process reaches a degree of openness that characterises many of our neighbours within the OECD, the European Community and in many other parliamentary democracies.
The extension for democratic rights to ordinary citizens is not something that  happened overnight. Parliamentary reform led to the extension of the franchise to all male voters in 1882 and women's votes came somewhere later. Now that these formal democratic rights have been achieved, it is a very real question as to how such rights can be made effective in a complex modern State. Increasingly, information has become a critical factor in the ability of the Individual citizen to understand and, more important, to influence the political process. Denied information, the citizen will not understand what is going on or the reasons, thinking, or viewpoints upon which administrative political and governmental decisions are based.
Ireland is far behind other countries in appreciating the importance of this issue. Access to public documents has been guaranteed by law in Sweden since 1766. France has provided access to public documents since 1978, enforceable by a Commissioner of Access. There has been a Freedom of Information Act in Australia since 1982. Similar laws have now been passed in New Zealand, Canada, and Norway. A British Freedom of Information Bill was introduced and processed in the House of Commons in March 1984. Such a Bill is needed here not only for the same reasons as provoked its introduction in other countries, but most particularly to make our health and social services accountable and to open up policy matters which affect our nation's one million poor. Such freedom of information laws tend to have a number of features in common. These include a general statement of a right to information, a list of exemptions and a mechanism, or series of mechanisms, to enforce or govern public access.
Several of the legislative Acts introduced in other countries have also attempted to deal simultaneously, because there is clearly an overlap, with the question of personal privacy. I know the Government have introduced a Data Protection Bill in the other House and the sections in my Bill which have to do with personal privacy would need amendment at some stage in the light of whatever form that Bill finally takes when it  is passed. It will be impossible to amend such a Bill prior to the Government deciding their own amendments on the Data Protection Bill.
The most documented evidence of the effectiveness of freedom of information has been in the way the freedom of information law operates in the United States. This Act was passed in 1966 and amended in 1974. It was based on the First Amendment of the Constitution guaranteeing freedom of the press and a Supreme Court ruling that it was essential to ensure an informed citizenry which was vital to the functioning of a democratic society and which, in the words of the Supreme Court, needed to check against corruption and to hold governors accountable to the governed.
The 1966 Act required the Federal Government to register and record its information and make it publicly available. It provided for nine exemptions. That Act proved inadequate for a number of reasons. It set no time limit within which an agency had to respond to a request. Federal agencies had the right simply to claim their files were exempt and there was no provision for judicial review. They tended to do this with considerable frequency.
The Congressional Sub-Committee on Government Operations concluded in 1972 — the time is of considerable importance — that public bodies had been guilty of foot-dragging, long delays, delaying tactics and unjustifiable claiming of Executive privilege. As a result, a whole series of amendments were introduced in 1974, coinciding with a growing distrust of Government arising out of the Watergate scandal. President Ford vetoed the amendments on the grounds that they would release military secrets, compromise the police, overburden administration and overwhelm the courts. These are familiar arguments about freedom of information. Congress over-rode his veto by a heavy majority.
The present American law lays down that Government information must be indexed and made available on request, unless it is one of the nine exempt areas. Information must be released within ten  days. Costs must not exceed direct photocopying costs. There is provision for appeal. Conflicts must be resolved in the courts and the Executive has no final veto. I use the American example in my remarks because the American example is one of a complex country with considerable problems of national security, international and other considerations and, therefore, it is a conservative example to use.
The American example is important for a number of reasons, first, in terms of the practical effects of legislation, the difficulties, problems, and loopholes on both sides. Second, it shows the practical use to which such a law can be put in other countries. For example, the American Freedom of Information Act of 1974 has been used, among other things, to reveal reports on health and safety at work which would otherwise have been concealed; the use of agent orange defoliant which would otherwise have been concealed; federal plans for nuclear waste disposal, which would otherwise have been concealed; surveillance of student groups in college which would otherwise have been concealed; information available to the Government, but which they would not publish, on items as far ranging as unsafe tyres, ineffective prescription drugs and the cancer risks arising from hormone treatment, and they also elucidated information about medical experiments by Government agencies.
It is an interesting reflection that it was the American Freedom of Information Act which revealed the details of an arrangement between the Irish Institute for Industrial Research and Standards and the American Department of Defence about the role of the IIRS invalidating defence specified components manufactured in this country. The IIRS stated that that agreement was confidential. We were able to obtain a copy of it from the United States via the United States Freedom of Information Act. It is rather ironic when an Irish citizen has to use the legislation of another country to obtain information that is refused to him in this country. This  is a particularly good example because of that.
One of the difficulties is that it is impossible to focus with clarity on what an Irish Freedom of Information Act would release. The main areas of development would probably in welfare rights, consumer rights and information and the planning and environmental area. The precedents which exist in other countries give us a useful idea of its likely impact, and that the legal permutations from the point of view of the information-seeker and the giver of information are well known. In other words, there exists a solid legal and practical basis for the drawing up of legislation in this country.
It is a classic one to pretend that this issue is somehow irrelevant or a fashionable liberal issue. In my view, it is far more than that. If freedom of information can work in societies which are far more complex, industrialised and developed than our own, there is no reason why it should not work here. It would not only bring us into line with those countries, but it would also contribute to our development towards the same level of development of those countries by advancing the information base on which citizens operate, and thus the quality of political debate which will contribute enormously particularly to a country with the difficulties we have.
Irish case law — I would not claim to be an expert — points us in the direction of freedom of information. In 1967, Dublin County Council refused to grant outline planning permission to Mr. Joseph Murphy for the development of his lands. In 1968, a compulsory purchase order was put on his land. Mr. Murphy objected and a public inquiry was held. An inspector made a report, the Minister read it, and confirmed the CPO. Mr. Murphy appealed to the courts claiming the ministerial decision was unfair. The Minister refused to publish the report claiming that it was confidential and that it would be contrary to public interest to publish it. He claimed executive privilege.
The Supreme Court ruled on Murphy versus Dublin Corporation in 1971. Mr.  Justice Walsh held that there was so such thing as absolute executive privilege. He ruled that, if there was a dispute about a Government document, the onus was on the party refusing disclosure to satisfy the courts. The courts would have the ultimate say as to which was the superior interest in a dispute, and the Government were liable to produce to the court any document the court requested. He added that documents could not be withheld from the public just because they belonged to particular categories.
This Bill that I have introduced attempts to state a freedom of information law within the context of Irish court and constitutional law and in the light of the experiences of other countries particularly that of the United States. It is a conservative Bill — it is not usual for me to be in such a position — that builds on existing Irish case law and on the legislation in other countries. This is not a haphazard operation. This is a carefully researched Bill. It has 41 sections. It is based on, though not identical with, legislation in operation in other countries and it is an attempt to meet a complex problem with a sufficiently complex and balanced piece of legislation.
The main points of the Bill are straightforward. It states a general right to information and access to any Government document and encourages the Government to publish information as a matter of course. That sounds like a simple enough principle but it is not one we have in operation in this country. It lists the procedure whereby a member of the public can apply for information under the Act and it provides that requests for information should be met within five days, with actual access within 14 days. A member of the public will also be entitled to correct or expunge misleading information about himself or on any other issue.
It also requires that an applicant be told the reasons for refusal of access and be informed of his or her right of review. It also lists categories of information that would be exempt from disclosure, and these categories are fairly well established. These include information which  would seriously threaten the defence or the security of the State, information relating to criminal prosecutions which would be likely to interfere with the successful prosecution of a crime, trading information which would confer unfair advantage on a competitor, the unwarranted invasion of personal privacy and Cabinet meetings and a number of other issues which are hardly worth going into at this stage.
The Bill provides for review by the courts of contested issues or the refusal of the Government or a public body to grant access. No official documents may be withheld from the court and the Bill endeavours to ensure that, where the court adjudicates that a matter of substantial public is concerned, the courts can ensure that all the costs of a court action are met by the State. The Bill also protects those releasing information from being charged with offences of defamation, etc. It provides penalties also, of course, for the persons releasing information in the exempt categories. That is necessary because the Bill, quite logically, also proposes to repeal sections 4 and 6 of the Official Secrets Act, 1962, and requires the Minister to report to the Oireachtas each year on the operation of this Act.
Circular 15 of 1979 which deals with confidentiality, secrecy and preservation of integrity in the public service, is quite horrific in its open-endedness. I am grateful to a previous Minister for the Public Service for giving it to me because, if any member of the public service, other than the Minister, had given it to me, he would have been in breach of the Official Secrets Act.
The Bill also attempts to come to terms with personal privacy. This is an area of growing importance. I think we all recognise that. It is also an area which the Data Protection Bill currently before the Dáil addresses. Therefore, the provisions contained in this Bill for personal privacy are not ones on which I wish to dwell at this stage because they will clearly need to be amended. I wish to make it clear that the Data Protection Bill is a very specific Bill to do with one  area of personal privacy. It is nothing like a freedom of information Bill, but it would overlap in the area of personal privacy. Therefore, it is clear that this Bill will need to be re-written in the light of whatever shape the Data Protection Bill finally takes.
The Bill would have a considerable number of interesting effects. There has been some speculation in this area, but I would identify the welfare rights groups. welfare recipients, public civil liberties groups, consumer associations and, indeed, the media as areas which will have the strongest interest in the availability of information under this Bill.
The interesting thing about this is that the trade union which represents higher civil servants is amongst those who have been most vocal in supporting the principle of a freedom of information Bill. The resistence to freedom of information in this country is not coming from what is the traditionally identified source. The Association of Higher Civil Servants, in a submission to a joint committee of the previous Dáil and Seanad on legislation, made the point that they were vigorously in favour of comprehensive freedom of information legislation. In that context, there are overwhelming reasons for supporting a Bill such as this.
To underline the importance of the Bill, it is useful to list a number of areas of information which the public have not seen in any detail. For instance, on the very first day this Seanad met I sought details from the Minister for Social Welfare on the guidelines and background information under which public servants were operating the Jobsearch scheme, and I was told that it was not the practice to make such information available. This is a scheme which affects 150,000 people who are depending on welfare and we do not know anything about the guidelines, the operational manuals, the criteria for adjudication on people, etc. which the public service are using. This is private information. One hundred and fifty thousand people have been impacted by that particular scheme. People who feel aggrieved with Jobsearch do not know  how or on what basis they can remedy their grievance, because they do not know the basis on which decisions were taken which affect their lives.
The confidential guidelines issued to community welfare officers on the operation of the Supplementary Welfare Allowance Act are still confidential and private. Over 50,000 people in any given year depend on this Act for their livelihood, yet the basis on which decisions are reached which affect their day-to-day existence are secret. Indeed, it is almost a State secret to determine what are the precise geographical areas covered by the community welfare officers in this city. Some people would insist that that is a State secret as well.
A 1984 report on criteria used for the initiation of a large scale prison building programme, one on which millions of pounds were spent, was investigated in July 1985 by the Committee on Public Expenditure and they concluded:
The Committee has to report that, despite intensive enquiries with the Department of Justice, it was unable to make a judgment as to whether expenditure to date on the prison building programme was efficiently spent or otherwise. The reason for this view is that the Department refused to divulge the basis on which decisions were made...
Attempts by me to get information about various aspects of equipment in the Armed Forces were resolutely rebuffed by the Department of Defence. Eventually I got this information from Sweden. Yet in the United States, which has a considerably greater level of defence expenditure than ours, to coin an understatement, such detailed information of different kinds of weaponry is traditionally available and is not regarded as a matter of national security. It is quite astonishing that we should find it inappropriate to divulge such information even to Members of the Oireachtas.
 The 1987 review of rent allowances under the Supplementary Welfare Act is another case in point. This review was conducted by the Department of Social Welfare. It affects all the people who depend on rent allowances to stay off the streets and to avoid becoming homeless. When the Department of Social Welfare reviewed this scheme and took decisions about the new level of allowances and payments the information the Department used and the criteria that led to a new statutory instrument and the report itself, were all secret and will remain so. When a homeless man was discharged to the Cork Simon Community in October 1987 and died soon after, the Department of Health investigated the matter. The report of that investigation will never be published. All we will get are the Minister's decisions in the light of that report. I find that unacceptable and it definitely loads the dice against the public and against the citizen who might have an interest in the area.
A 1985 Government investigation into the role of the building societies was never made public, although the role of such societies is clearly crucial in determining one of the most important parts of any person's life — housing. One wonders what the societies have to hide.
The Craig Gardner report on Social Welfare Fraud, commissioned in August 1986 and shortly due for completion, will not be published in full. One million of our citizens depend on social welfare payments and they are often the victims of all kinds of allegations of cheating. Even so, new procedures could be introduced altering payment procedures which would make it more difficult for ordinary “genuine” people to claim, and the criteria and procedures will be based on secret reports.
A secret 1981 report — and this is a very useful example — on alleged social welfare fraud by members of the travelling community was used to justify procedures whereby all travellers are required to sign on at the same time, 11.30 on Thursday mornings. A secret report in which evidence was presumably presented making allegations against the  travelling community was used to justify what is, in my view, a racist practice and the travelling community will never have an opportunity to refute the evidence because they will never be allowed to see it.
The final report of the Task Force on Unemployment in Cork, set up in January 1984, was never published. All we got were the decisions taken in the light of that report. That report was also deemed to be confidential. Industrial development in the city has since been planned on the basis of that report but we, the citizens of that city, will never be judged mature enough or capable enough to see what was being written about us.
The Department of Health this month will lay down new procedures for the discharge of homeless people from hospital, a report occasioned by the need to ensure quality after care services. But it will be an internal report. The information reaching the Department, indications as to whether present arrangements are good or bad, the analysis, the thinking behind the new approach, all these things will be “confidential”. Neither homeless people, hospitals, social workers nor voluntary organisations will be able to judge the wisdom of the Department's decisions and assumptions. All the information will be “confidential”.
The Department have an inspectorate inspecting nursing homes and they assess a number of things. They assess safety regulations, quality requirements, fire-escape devices, hygiene and heating standards and whether a nursing home is overcrowded, etc. The information these inspectors collect is not published. We have the ridiculous position where we have a Government Department having detailed technical assesments of the quality of private nursing homes around the country. Yet, if a consumer wants to judge whether a particular nursing home is suitable, he or she is not allowed access to that information because the information is “confidential”. There is an even greater irony because the usual phrase used to justify the suppression of the information is that it would not be in the  public interest. One of the things I have noticed in my limited political career is that those things the public are most interested in are those things which most Governments decide are not in the public interest to be published. I find that a delicious but somewhat painful irony.
In the United States, by way of contrast, reports on nursing homes were amongst the first things to be published under the Freedom of Information Act. There were, of course, improvements in standards as a result. Despite their importance to consumers, several reports of the Restrictive Practices Commission have not been published. These include the study on competition policy in 1977, the study on the fixing of fees and restrictions on advertising in the accountancy profession in 1987 and, finally, by way of an example, and a particularly Irish example, it was revealed only last month that a 1984 study on Ireland's air pollution was still not published.
According to a senior official of the European Commission, it was unacceptable that air pollution plans should be kept confidential. The same individual also found unacceptable the Irish practice of implementing public EC circulars by private internal circulars. One could go on forever.
Various people have written on this issue. The environment correspondent of The Irish Times has come to the conclusion that it is impossible to deal with a host of environmental issues until we have a freedom of information Bill. In a lot of work I have done in the area of welfare and housing, I am equally convinced that you cannot do it. Many people in the area of industrial policy are beginning to wonder whether it can be done. There is an unequal battle between the citizens and the State, because the State more and more has a monopoly on all sorts of information. In the interests of what is described as the “public interest”, most of what the public is most interested in is kept from the public.
One of the interesting consequences of a freedom of information Bill would be to increase accountability within the  entirety of the public service and also between the Government and the public. That accountability would be a superb incentive to efficiency. A Bill like this would promote democratic participation and ensure that administrative decisions are well informed. It is a logical, necessary and vital extension of the rights of the citizens.
I am happy to be here to introduce this Bill. It is one of these issues which should not be dealt with emotively but just because it is not emotive does not mean it is not important. Therefore, I move the Second Stage of the Bill and urge the Members of this House to give it a Second Reading and then let us move on to what should be the really important discussion on this, the discussion on the details of such a Bill.
Mr. Fallon: As far as I can recall this Bill is similar to the 1985 Bill Senator Ryan introduced. My recollection is that there was no Second Reading for that Bill. The Senator is doing better tonight. At least we can agree on that point. Personally speaking, I am not against a change. I am not against the idea of amended legislation in some form or other because I believe it is necessary in the area of freedom of information. As Senator Ryan said, this is not an emotive issue. My understanding is that there is not a cry from the heart from the public at large for any kind of change in this area.
The big problem we have to address in legislation of this kind is how far can we go. My reading of it is that this is quite a complex matter and complex legislation is clearly required. It requires a lot of investigation by the experts the Government have in their Departments — the civil servants, their legal people and so on. We have an open democratic system in this country, and it could be argued that that, too, can present problems for us. I welcome the Bill from the point of view of keeping an awareness at Government level in this whole area and in many ways, the Government are already involved in this area.
The Data Protection Bill was referred  to by Senator Ryan. When that is enacted it will protect the individual's rights in relation to personal records held on computers. It covers many of the important issues raised in Part III of this Bill. It would seem that Part III of the Bill is unnecessary and inappropriate in view of the fact that the Data Protection Bill has gone as far down the same road as this Bill. It can be amended if appropriate and I think that is the direction in which it should go. While this part of the Bill was necessary and appropriate in 1985 when the Bill was first introduced, it would be wrong to have two pieces of legislation moving in the same direction at the same time. The way to handle this part of Senator Ryan's Bill is by amendment of the Data Protection Bill.
The remainder of this Bill deals with freedom of information and general issues in regard to access to policy papers and operational papers of the Government and empowers individuals to view documents held by public bodies. The Bill excludes certain areas such as areas which would impact on the defence or the security of our State, or information that might be appropriate for the Garda and the courts, and commercial secrets entrusted to various public bodies. Other information is recorded in the Bill.
I support the argument that greater awareness and greater public access to various policy and operational matters of Government can lead to better decision making and improve the democratic process. These are the advantages but, on the other hand, we have to look at some of the disadvantges. This Bill could have the opposite effect. It could be seen as being detrimental to all or some of the Government process. For example, in the area of budget making, when the Minister for Finance and the Taoiseach are talking and looking at important budgetary papers which would contain factual information, it could be seen in some way as restricting the role of the Government of the day.
The commercial semi-State bodies are also referred to and it can clearly be seen to have certain implications for them. It could be argued that they would be forced  to make disclosures. They could and would argue, I am sure, that it might not be fair to them in a competition situation. The cost of this exercise has not been determined and it is an area to which the Minister will have to give serious consideration because aid will have to be given to various searchers, all of which will involve considerable expense.
Because this Bill is so complex requiring very complex legislation and change is needed — I admit that change is required — this ought to come from the Government side, whoever the Government are on the day, rather than from a single Member of the Oireachtas. I am not taking from Senator Ryan. He has prepared, in many ways, an excellent piece of legislation. Technically it is a good Bill and certainly he — and whoever is involved with him — has given it a lot of consideration. At the end of the day it is the Government who will have to stand over all these matters. One of the defects of the Bill is that it is not a Government Bill. I ask the Minister to request the Government to proceed with legislation for a change in this area in the knowledge that they have full Government Departments and a full complement of civil servants, legal people and so on, who can deal with and address the problem if that is necessary.
I know the Government are doing some examination in this area. I urge the Minister to request the Government to introduce a Bill as quickly as possible with all the expertise available to the Government. I congratulate Senator Ryan on trying to increase the awareness of the populace at large. I hope the Government will continue their efforts to produce a Bill which will be more appropriate for the people who will follow us and that it will be one we can all fully endorse.
Mrs. Robinson: I strongly support the Freedom of Information Bill, 1988. I commend my colleague, Senator Ryan, for having reintroduced it into this House, leading to a Second Stage debate on the issue. It is extremely important at this stage that we debate the values  involved. In that regard I welcome the contribution made by Senator Fallon because he has addressed the values and, if I understood his contribution, he supports the need for this legislation. Indeed, it would appear that his regret is that this is not a Government Bill. I have come up against that problem before and it is an ironic problem. I am sure Senator Ryan would make a present of the Bill to the Minister now if the Minister would accept the present and steer the Bill and let us continue to examine the values and move forward to a Committee Stage, when we could, of course, address the small print of the very important issues, what information should be available and in what context, what information should be exempt, what protections should there be for the individual and so on. These issues are the heart of a Bill of this kind.
It is extremely important that we should have legislation on freedom of access to information. We are very slow in Ireland, perhaps influenced by our neighbour next door, unfortunately, to appreciate the importance of having freedom of information. Knowledge is power and it is worth reflecting on the fact that we have a written Constitution under which power devolves from the people to the organs of Government. That is the structure of our written Constitution, the basic structure of it. Power devolves from the people to the organs of Government who exercise that power on behalf of the people. Yet people are denied access to relevant, pertinent, important information relating to how that power is being exercised.
The first point I would make on a Freedom of Information Bill is that it is particularly appropriate in view of our written Constitution, and the commitment in that written Constitution, that there should be accountability back to the people by those organs who exercise power on behalf of the people, that it fits into our constitutional structure that there would be a freedom of information Act. It is a defect — if you like a constitutional infirmity or a weakness — that we do not have strong legislation of that kind on  our Statute Book. Senator Ryan referred to the examples of other countries such as the United States, in particular, and also to a number of other countries which have introduced access to information as a right of citizens. It is a right that we in Ireland, in particular, in view of our written Constitution, should value and put on our Statute Book.
Senator Ryan referred to the European Community in a number of contexts. It is worth noting that frequent criticism is made of the European Community generally and of the EC Commission, in particular, as being very bureaucratic, that it is very difficult for the citizen to get hold of what is happening in Brussels but, in fact, on numerous occasions there is much fuller and much more effective access to information from the bureaucracy in Brussels than there is from the relevant Irish Department dealing with the matter.
I can speak from personal experience of numerous occasions when I could not get a particular working document from a Department here. All that was needed was to know who in Brussels, to either telephone or write to, to get that information and it was made available. I am by no means isolated. Anybody who deals with European Community matters will testify to the fact that it is frequently easier to get the information from Brussels than to get it from an Irish Department. Why? At the stage of a Second Reading of a Bill we ought to ponder on these things a little and ask ourselves questions. Why is it that there is such reluctance to impart information on the part of Irish Departments? Have we, in fact, without fully appreciating the cultural significance of it, inherited more of the ultra-secretiveness of the British Civil Service than we had appreciated or wanted to admit?
I think we have. I think we took on board the approach and the secretiveness of the British Civil Service. This is not compatible with our fundamental constitutional principles because power in this country does not rest with the Crown. Power devolves from the people and should be exercised in a manner that is  accountable to the people. You cannot have accountability without knowledge of what is going on. That is a most fundamental constitutional support for a freedom of information Act.
Another point Senator Ryan made in his contribution was the role of the courts in improving access to information. He is undoubtedly correct in that regard. The courts in a series of cases, of which the planning case Murphy v. Dublin Corporation is a notable example, have improved access to information through motions for the orders requiring discovery by parties to litigation. If the party happens to be either a local authority or a Minister, a motion for discovery can be an effective way of obtaining greater access to information. But, of course, it is limited to those who find themselves requiring to litigate, who for one reason or another have to go to court. That is not necessarily a happy position. It certainly is not a cheap ride for anyone to go to the High Court and institute proceedings in order to get access to information.
I know of cases where the view has been expressed at a preliminary stage. “This case is so fundamental that we will at least get to the stage of going for discovery and then it may be that the case cannot be proceeded with.” The point is that the plaintiff in that particular case, or the applicant if it was for judicial review, would feel this was such a fundamental issue that we must get access to that information and the only way we can do it is by instituting the proceedings and looking for discovery. The straightforward method of getting access to that information would not be available in the circumstances. Again the courts have played an important role, but it should never be the fundamental way to get access to this kind of information. That access should be provided through legislation which creates the proper balance between the various interests.
Senator Ryan, when introducing the Bill this evening, described it with a small “c”, as being a conservative measure. I agree with him. It is a Bill which fits into our system. It builds on the reality of  the Irish system and for that reason on Committee Stage it can lead to very constructive assessment of the various sections. It is not radical and innovative in a way that requires an enormous leap in any particular direction. It simply provides the context in which there would be a general right to information and access to Government documents but it deals with the kind of worry that Senator Fallon expressed. He worried about whether documents in relation to budgetary decisions of the Government could be made public prematurely and, perhaps, interfere with those discussions, but that kind of document is exempted. Cabinet papers would be exempted from being accessible for precisely the reason that it is in the course of a legislative structure that a balance is required.
I agree with Senator Ryan's view that the Bill, put forward to the House, would require amending in the light of the Data Processing Bill which the House will also be considering in depth. There is nothing wrong with that. That is a matter which can be accommodated on Committee Stage.
This is not a Bill which is a discretionary possibility for the Oireachtas to think about at some future time. This is a fundamental Bill as I have emphasised in my contribution which had to be understood as fleshing out the balance in the Constitution. Therefore, it is not a matter that can be put on the long finger until a Government or a Government Department some day, some time, get around to considering it. It is a measure which should be taken by this House as seriously as its proposers and seconders fell about it. It should be brought to Committee Stage for a very thorough examination.
Senator Fallon expressed the reservation that it is not a Government Bill and that he would prefer if it was. We are beginning to move away from the notion that all legislation must emanate from the Government. We have a very good example in the other House — if I am allowed to refer briefly to the legislative programme of the other House — of a very important family law Bill, dealing with judical separation, a Private Members' Bill put forward by Deputy Shatter. It is on Committee Stage in the other House. That is a very welcome move. There has been a very appropriate response by the Government. Perhaps there is a more perceived need for reform in family law than there is a perceived need for access to information of the kind we have been talking about.
I can assure the Minister and the House that when we start debating Committee Stage and when the implications of it are understood, its importance will be realised. There are many voluntary bodies in the country who appreciate the need for this legislation. There are also many individuals who appreciate the need for it. Indeed, I would say there are many public representatives, both at local and national level, who understand the need for it. It is not something that has been discussed extensively on the media, or in newspaper articles, or in the current debate. It is not an issue that has had sufficient attention paid to it, notwithstanding the fact that the Irish Council for Civil Liberties have supported the necessity for a freedom of information Bill for a long number of years.
Senator Ryan in pointing to the possible impact of legislation of this kind, if it were to be passed, identified some areas where there is not adequate access to information. They were cumulatively very far-reaching in their implications in the area of social welfare law and environmental law. I would like to add to his list mainly from my personal experience as it is often the best way to try to point out the importance of having access to this kind of information. Senator Ryan mentioned in the areas of social welfare the absence of access to information on the guidelines in the Jobsearch scheme. In fact, throughout the social welfare code there is a denial of information to people who ought to have that information.
Information comes out in an unexpected way through court action — again  getting back to the role of the courts — not on a motion for discovery but sometimes simply when a defence is entered to a court proceeding brought against the Minister. I want to give a couple of examples of that. One was in a case challenging the exclusion of an applicant from the fuel voucher scheme, a Mrs. Kershaw. She was distressed because she could not get a fuel voucher. She felt that her needs warranted it and she brought proceedings for a judicial review. Lo and behold the Minister defended the proceedings on the basis of a ciruclar and this was the firt time anybody knew the circular existed. It was a total surprise to the lawyers and everybody involved that the ciruclar existed. The president of the High Court concluded that the Minister could not be bound in that way by the circular, quashed the decison and sent the matter back to the Minister. That is an example of the secrecy of it.
In another recent social welfare case an issue arose as to how the concept of benefit and privilege is applied. An affidavit was sworn on behalf of the applicant by a member of the National Social Service Board who lectures on social welfare law giving an expert opinion on how the benefit and privilege concept is considered in social welfare cases. The Minister said: “That is not quite right; that is not exactly how it is”, but he did not say precisely how it was. He was seeking, in some measure to controvert that kind of information. We ought to know exactly how the benefit and privilege concept affects social welfare applicants and we ought to know that also in the envirionmental area.
We are in danger of having proceedings brought against us as a country before the court in Luxembourg because we do not have accessible statutory instruments showing how we implement various directives in the area of the environment. We have administrative decisions taken which are not accessible and circulars which are not published. This is a matter which has been raised in relation to a number of our environmental directives which we are obliged to implement. The  manner of implementing them is secretive.
Circular 15 of 1979, on official secrecy and integrity which Senator Ryan mentioned, gives great cause for concern. I will conclude on this point. I should like to raise this issue because it is a matter we can come back to at a later stage in the proceedings on the Bill.
The front page of the circular on official secrecy and integrity issued to civil servants deals with their obligations under the circular. It uses at all times the concept of a prohibition on the communication of official information. This is a very broad prohibition. On the back are the statutory provisions including extracts from the Official Secrets Act and it includes the definition of official information. You have to read the small print on the back to understand that official information has a special meaning. I do not agree with the meaning — it is overbroad as a statutory definition — but I wonder how many civil servants read the front of this circular and are inhibited from providing, even in present circumstances, quite unsecret information which they would be entitled to provide and yet feel inhibited by the circular. We are talking about fundamental issues. I look forward to Committee Stage of the debate when we can get down to the nuts and bolts of the Bill.
|Last Updated: 13/09/2010 19:46:03||Page of 7|