Freedom of Information (Amendment) Bill 2003: Committee Stage (resumed)
Dr. Henry: I regret the inclusion of this provision, particularly as I have seen the Taoiseach's comments in the Dáil. He said changes in the Bill would not reflect on the individual but I do not see how that can be with this amending provision. The Taoiseach would not want such an amendment introduced.
Dr. Henry: I support the amendment. A case has not been made to show the current provision is causing disruption.
Dr. Henry: I do not believe we have been given evidence that the original Act is causing problems in this area. The Information Commissioner's report, which we received yesterday, outlines ways in which a persistent requester can be dealt with. No one wants to make some sort of charter for people who make frivolous or vexatious claims, but that is already in the Act. Legislation that has been working well should not be spancelled. People may have good reasons for making repeated requests for information if they have not got everything they want. This is important in view of the fact that there will be changes in that the term "contain" will be included in the Act rather than the phrase "relate to". That is welcome because one might not ask the right question the first time and may get a little more information from the second request.
We must remember that this section will greatly affect Members of the Oireachtas, a large number of whom may have to make repeated requests for information. We will not be able to get that information either. I am not just asking about this on behalf of citizens. I want to know if Members of the Oireachtas will be able to get information that we know exists somewhere, even if our initial request is not as close to the mark as whoever is giving the information believes it should be or that it does not contain, for example, something relevant to a particular person. How many requests does one have to make before one is considered to be a repeat requester?
I have no doubt that many actions can be taken in this area. For example, if a requester is acting without good cause and fails to agree to the suggestions of the Department as to how the requests should be dealt with, it appears to be easy to move them on. In addition, if they make many requests they can be asked to put them in some sort of priority and be required to agree to whatever system the Department believes should be used to make the request. That is only right because we all agree the other work of a Department has to continue. I am anxious that we are trying to make it more difficult for people in that if they do not decide at the outset the type of information required, they may find that subsequent requests are refused.
Dr. Henry: I am not trying to be vexatious or frivolous, but it is profoundly depressing for us and for the Minister of State, because he is perfectly competent, to know that we are going through this and he is not in a position to take even an amendment as minor as that before us. I sympathise with him and Senator Mansergh because some of these issues are so minor that if the Minister of State was dealing with a Bill from his own Department he would accept them.
Dr. Henry: I move amendment No. 4:
In page 8, lines 40 to 43 and in page 9, lines 1 to 18, to delete paragraph (a).
I am out of the traps at last. It is unfortunate that we have to table amendments at all. The main thrust of the Bill was to be that the time limit for disclosure of Government papers would be extended from five to ten years. I would have no difficulty with that if, for the workings of Government, it is found easier to put in place a longer period, having regard to the fact that many people involved in making decisions five years ago are probably still in power. The real difficulty is that we now seem to have extended the definition of Government to virtually any two or three people who are gathered together in the name of the Government, no matter how vaguely connected. Consequently, whatever they may discuss will remain undisclosed for ten years and freedom of information will not apply to quite important documents which may relate to Government decisions. That extension is far too great and, consequently, we have put down this and subsequent amendments.
Dr. Henry: May I point out to Senator Mansergh that, according to the definition in the Bill:
"'officials' means two or more of the following:
(a) a person holding a position in the Civil Service of the Government or the Civil Service of the State;".
Nothing here says anything about senior officials. It could be anyone. It continues:
"(b) a special adviser within the meaning of section 19 of the Ethics in Public Office Act 1995;
(c) a person who is a member of such other (if any) classes of person as may be prescribed.".
Therefore it is not the sort of person Senator Mansergh is suggesting. It can be anyone, according to this section.
Acting Chairman: Senator Henry, could you advise me as to where you are quoting? I am looking at section 12.
Dr. Henry: It is here on page 10. Senator Mansergh stated that these officials would only be senior officials.
Acting Chairman: Am I correct in saying that you are not dealing with this amendment?
Dr. Henry: Sorry, but Senator Mansergh spoke about the officials. That is why I thought I had better clarify what I was talking about. I am not the one who started talking about them. It would be a good idea if we were all talking about the same matters at the same time.
Dr. Mansergh: We are talking about several deletions in amendments.
Acting Chairman: We are talking about one amendment involving deletions.
Dr. Henry: Yes, but I am not the one who started talking about the officials. As the amendments will not be accepted anyway, why am I wasting my breath?
Dr. Henry: We are always being told in other legislation that we are not to put in "shall" and we must have "may", and here the Minister is doing the opposite.
Dr. Henry: I move amendment No. 5:
In page 9, lines 19 to 23, to delete paragraph (b).
This is a small change to the original Bill and I cannot understand the reason it is being made. Perhaps the Minister of State will explain.
Mr. M. Ahern: I will not accept the amendment as its effect would be to delete what is a necessary consequential amendment to one contained in section 12 (a) of the Bill, namely, the substitution of the words "shall refuse" for the words "may refuse" in subsection (1) of section 19 of the principal Act.
Amendment, by leave, withdrawn.
Dr. Henry: I move amendment No. 6:
In page 9, to delete lines 24 to 39, to delete paragraph (c) and substitute the following:
"(3) Subject to the provisions of this act, subsection (1) does not apply to a record referred to in that subsection--
(a) if and in so far as it contains factual information relating to a decision of the Government that has been published to the general public, or
(b) if the record relates to a decision of the Government that was made more than 10 years before the receipt by the head concerned of the request under section 7 concerned."
Dr. Henry: As I said, my concern with the Bill is not the extension, from five to ten years, of the protection of Government deliberations but that they are to be excluded from the provisions of the Freedom of Information Act.
Amendment, by leave, withdrawn.
Dr. Henry: I strongly support the comments of Senator O'Toole. Common politeness suggests it would be advisable to inform former Ministers of what might be coming down the tracks in terms of the disclosure of information. They should at least know the nature of the request.
Dr. Henry: All the points have been covered. I previously stated that the definition of official is so wide that, as Senator O'Meara pointed out, anybody can be included. On the Order of Business I mentioned all the committees within the Department of Health and Children. The real problem is that they do not report and now we will not be able to find out anything about them.
I would like to read into the record the last words in the report by my new friend, the Information Commissioner. I am glad that I supported his appointment. I never thought I would find him so valuable. He states:
Accordingly, it would appear that defining "Government" in such a way as to include a "committee of officials" may be an overly loose, unclear and inefficacious way of achieving what the Explanatory Memorandum sets out as the goal of the proposed amendment.
This will return to haunt the Government as one of the most stupid items of legislation ever to come before the House. Like everyone else, I do not mind the change to ten years. This is the nub of the Bill. We will not be able to get information on anything once two or three people, who might have come in off the street, have gathered together and stated that they are acting in the Government's name.
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