Freedom of Information (Amendment) Bill 2003: Committee Stage
Dr. Henry: Is this the Minister of State's reward for having so intelligently and sensitively brought through this House the Industrial Development (Science Foundation Ireland) Bill at very short notice? Did he draw the short straw or did the Government decide, on the basis that he got through that one so well, that it would put him in the firing line once again? I gather on that occasion he had about a quarter of an hour's notice to review the brief on which he was complimented both inside and outside the House on how well he did. Is it his reward that he must face our wrath?
It is even more magnified when we discover that the report on the application and operation of certain provisions of the Freedom of Information Act is in our pigeonholes. I can read quite quickly. Why can we not take Senator Higgins's suggestion to heart, that we should adjourn until 8 p.m. and then resume? From even a glance at the general overview contained in the report, I note there is a large and important section dealing with section 19. There are also references to section 20.
Acting Chairman (Mr. Dardis): Can we, please, stick to section 1?
Dr. Henry: We should abandon this discussion in order to allow Members to have at least the advantage of having read the report. I have complained repeatedly in this House that we seem to think that when we get reports, we have done something but that is not the case. They must be read and we have to use the information contained in them. I have never seen more reports from Departments than in the past five years, particularly the Department of Health and Children. However, it is quite difficult to get information from the Department of Finance. If we are going to the trouble and expense of producing and paying for reports - the taxpayer is doing so - it is asinine to proceed without us having a chance to look at them and ascertain what may be of value to us.
Dr. Mansergh: Reference was made by one of the Senators opposite to this being a farce, it is certainly a farce to enter into this type of discussion in relation to section 1, the agreeing of which, regardless of whether one likes what is contained in the Bill, should be a formality. The report being referred to is utterly irrelevant to the section.
Dr. Henry: It is not.
Dr. Henry: I cannot understand the reason Senator Mansergh appeared to believe that a Member on this side was querying the competence of the Minister of State. I have congratulated the Minster of State on his intelligence already in bringing through a previous Bill. We do not harbour personal resentment towards him. He is a competent Minister of State. The question, however, is whether the Bill was purposely sent into this House because the Government was ashamed to introduce it in the other House and has now left the field for other pastures?
At the beginning of the report, which has just come into our hands, the Information Commissioner states:
I am conscious that many commentators would like me to state my views on the proposed legislation. I do not intend to do so. It would be entirely inappropriate for me to engage in public debate on the merits or demerits of the Bill. The Constitution provides that the sole and exclusive power of making law for the State is vested in the Oireachtas and it is the role of the Information Commissioner in relation to the Freedom of Information Act to implement the legislation passed by the Oireachtas in an independent and impartial manner.
He then states:
Given the importance of the proposed changes to the Act, however, and having regard to my statutory reporting relationships with the Houses of the Oireachtas, I have decided to publish a commentary under section 39 of the Act. Section 39 provides that:
The Commissioner may prepare and publish commentaries on the practical application and operation of the provisions, or any particular provisions, of this Act, including commentaries based on the experience of holders of the office of Commissioner in relation to reviews, and decisions following reviews, of such holders under section 34.
How could anyone on the Government benches want to proceed with this legislation when the person of most importance in terms of considering the workings of the Act has provided us with this information?
I have made only one freedom of information request, which was on an issue of importance to me and all the young women of this country. I will explain the answer I received and the reason I am so concerned about what is now happening in terms of what could be described as the Freedom from Information (Amendment) Bill. There is a degree of concern about home births here. Statistics are not kept as to the infant mortality rate, which, it has been suggested, is higher than in hospital births. Many women are transferred to hospital very late in labour and perhaps because of difficulties during labour-----
5 o'clock
Acting Chairman: The Senator is going way off the debate.
Dr. Henry: I do not think so, and l will quickly explain the reason. This is a very important issue.
Acting Chairman: The relevance to section 1 is extremely tenuous.
Dr. Henry: I will conclude quickly. We wanted to get information because those figures could be included under deaths in hospital. I could not get them from the Department of Health and Children, so I put in a request under the Freedom of Information Act and it was refused on a technicality. It said I could try the Central Statistics Office but while the CSO would know the place of death of the person, it would not know the place of birth. That was not much help.
I will explain the reason this is so important. An area in the Bill now before the House is heavily criticised in this report, which I have to speed read. Under the section in the report on section 22(1)(a) and (b), if one asks a question about one body and the answer could impinge on the activities of another body, it will not give an answer. It is even worse than the position previously when the Department of Health and Children said it would not give me information of such importance. What is more important, apart from the maternal mortality figures, than the perinatal mortality figures? They are the essence of the health service, yet I could not get those figures. We now have no hope of getting them because it will say it impinges on the workings of some hospital or something like that.
This report states that the sections are to be amended by providing a revised wording for paragraphs (a) and (b) to the effect that the principal Act will extend the protection available to any public body, not just the public body that is the subject of the request. That is the reason we should not go on-----
Mr. Norris: Is Senator Dardis not ashamed of being in the Chair?
You have every right to be in this disgraceful debate.
Acting Chairman: Senator Norris should not push his luck.
Dr. Henry: This is a report of major importance, through which I am trying to speed read. I am giving you an example of where I have already had difficulty with the original Bill. The Department said I could appeal the decision, but an appeal would take six weeks to three months. That is one example which I could pick out immediately.
There are parts of the original Bill which are being amended by this Bill of which the commissioner is not critical but on which he gives a totally different answer from what is suggested either in the Bill or in the explanatory memorandum. I believe we are behaving in a farcical manner, and that is not the wrong word to use.
Dr. Henry: I wish I had thought of making a freedom of information request to find out what it costs to run the Office of the Information Commissioner because we are getting very good value no matter what the cost. The amount of work that has gone into this report is incredible but we are to ignore it on Committee Stage.
I am worried that the Taoiseach does not understand what is in the Bill because he said in the other House that it will make no difference to individuals. The commissioner's report makes clear that changing the wording from "relate" to "contain" will make a huge difference to the amount of information an individual can obtain under the Freedom of Information Act. It is not just about collective responsibility at Cabinet level, as we have been told.
Bringing up the amendments that Senator O'Toole has tabled on Report Stage is not the same thing as bringing them up on Committee Stage.
Dr. Henry: I am delighted with the commissioner. It is the original Act he is referring to on page 75 of the report. Senator O'Toole's amendment, which I seconded, will not be brought up until Report Stage and one must allude to it on Committee Stage. On section 2, the interpretation section, of the original Act, "person" should be defined under the Interpretation Act 1937. The commissioner suggests the following amended definition: "The word "person" shall, unless the contrary intention appears, be construed as importing a body corporate (whether a corporation aggregate or a corporation sole) and an un-incorporated body of persons as well as an individual;".
I realise the Minister of State may have had less time than I to examine the report, even on this section of the Freedom of Information Act 1997. Remembering how he was briefed so quicklyon the Industrial Development (Science Foundation Ireland) Bill, I am sure he knows why this change has been suggested. Has there been a problem with people being refused information because something was described as a body corporate and that, because a public body was a body corporate or a corporation sole, it could claim that it was not a person?
Dr. Henry: The word "person" is not defined in the original Act. Do the Minister of State or his officials have any idea why it is felt such as definition is needed now? Is there a problem?
Dr. Henry: In the Long Title, it has been suggested that we can bring forward amendments to the Freedom of Information (Amendment) Bill. This entire Bill is amending the original Act. The commissioner, for whom I have great admiration, suggests references to members of the public should be changed to "persons". This is obviously an important step he wants us to take. What is the view of the Department of Finance on this?
Dr. Henry: Following Senator Mansergh's useful contribution, I am more convinced than ever that we should try to retain the section. Surely a person must type up replies to freedom of information requests. Therefore, someone must take responsibility for them. If replies are made by committee, where will it take us?
I expected the Government to accept this amendment as I could not see a problem with it, particularly in view of the fact that, with regard to section 3 of the Principal Act, my new found friend, the Information Commissioner, proposes even greater openness in respect of requests. He suggests there should be "an obligation on the Minister for Finance to collect, collate and publish (within two months of the end of each calendar) relevant statistics in relation to FOI usage in the relevant year, and ... an obligation on public bodies to provide the Minister with such statistics, and in such manner (including timescale) as the Minister determines, in relation to FOI usage in the relevant year."
These proposals would provide us with material of a "statistical, econometric or empirical nature" and thereby ensure we know exactly what we are talking about when we raise the issue of factual information. It would be a good idea to keep such factual information in the Act.
Dr. Henry: I am not slavishly following the Information Commissioner's recommendations. I am making decisions.
Dr. Henry: While I understand there is an information officer, people like Senator Mansergh seem to tell us that everything is delegated and the decisions are not made by the information officer.
Ms O'Rourke: He or she gathers information. They would not have the precise information.
Dr. Henry: While I have never worked in a Department, from what I have heard the information officer is not necessarily the person who will write the reply. Based on what Senator Mansergh said, the work is delegated to different people. It is great to be able to find out who is dealing with a specific request.
It is not so long since civil servants were not allowed to give their names. I remember phoning a Department and asking for the person's name so that I could phone her back. When she told me she was not allowed give her name I asked how many people worked there and was told there was only one other person, who was called Miriam. When I rang back I had to ask for the person who was not Miriam. Based on what has been said by Senator Mansergh and Senator O'Toole, quite rightly one person in the Department is the expert on giving information on one subject. Simply getting the name of the freedom of information officer does not mean getting the name of the person who dealt with the case, because there is obviously considerable delegation.
Dr. Henry: I was surprised when I heard it reported on RTE news that the Taoiseach said the Bill would not affect individuals. This is the area where it will have most effect. The words "relate to" are totally different from "contain". They are much broader and changing them represents a huge diminution of the amount of information people can obtain about themselves. This is terribly important where people need to make corrections to records. False impressions may have been given, but, because something did not directly contain personal information, a person would be refused access to the information.
Dr. Henry: I understand what the Minister of State is saying. It can be very difficult and awkward, especially if somebody else within the family might be affected by the information being given. I take Senator Mansergh's point that it is far simpler for the person giving the information to have a word such as "contain" used but it also takes away the discretion if one can see that there is something which could be very useful perhaps to the person seeking the information. That no longer applies under the Bill. Although one might see that the best interests of the person seeking information would be best served by giving him or her the information, one would not be in a position to do so. I do not believe it is a matter of trying to batten down the hatches or draw a fresh veil of secrecy over information. The intention is as the Minister of State said but I question the wisdom. Is it not taking away discretion from the person giving the information, although it may be simpler for them? It is perhaps depriving a person seeking information of something which could be extremely useful to him or her.
Dr. Henry: Since the Taoiseach patently thinks this Bill does not affect individuals, because he obviously would not have said that if he knew there is to be such a change in the way applications must be made and the way information can be given out, could the Minister of State look at this between now and Report Stage? I have heard it reported on the news that the Taoiseach said this Bill will not affect individuals. Because the Taoiseach is a busy man, he may not know that this part will affect individuals and nobody else. No corporations will be affected. Nothing like that will be affected. Could the Minister of State do that between now and Report Stage?
Dr. Mansergh: In defence of the Taoiseach, the Opposition has entirely failed to demonstrate that there is, in terms of practical end effect, a difference between "relate to" and "contain". The superiority of the word contain is that it is legally precise. We should not, in this case, keep language in legislation which is ambiguous and ambivalent. Whether it is "relate to" or "contain", the officer concerned must make a judgment. I doubt if in practice, whether either word is in use, it will make much difference, except in this respect, that "relate to" is ambiguous and could raise uncertainty. It is capable of a potentially wide definition, including stuff which is semi-irrelevant to it. In terms of precision, "contain" is much the better word.
Dr. Henry: Senator Mansergh is absolutely right. The meaning of "relate to" is much wider-----
Dr. Mansergh: Only potentially.
Dr. Henry: -----than "contain". I could see "contain" being defined eventually in a way that if it did not contain your name and address, you might not get any information.
Mr. O'Toole: That is exactly it.
Dr. Henry: It would mean that names will have to be there. Next there will be a need for the date of birth to be sure it was not another Mary Henry or something like that.
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