Labour Bill on FOI voted down by government parties

Last night, the Seanad debated the Freedom of Information (Amendment) Bill 2008 brought forward by the Labour party. After a debate of nearly two hours, with some interesting input from both sides of the house, the Bill was voted down by the government parties.

The Bill would have gone some way to redeem the Freedom of Information Act from the bruising it received due to amendments by the Fianna Fáil/PD government in 2003. Those amendments added fees of between €10 and €150 to FOI requests which has resulted in a dramatic fall in the number of requests received, from a peak of almost 18,500 in 2003 to just over 10,500 in 2007.

The Bill would have also extended the remit of FOI to groups such as an Garda Síochána. Ireland is the only country of 27 in Europe which does not include its police force in FOI, and this is something that the Information Commissioner, Ms. Emily O’Reilly has sought as well as Mr. Conor Brady, a member of the Garda Ombudsman Commission.

Below is my own speech to the Seanad last night. I spoke at the very end of the debate.

I represent something of an unreconstructed approach to freedom of information, namely, that the presumption should be precisely that freedom of information. The case should be made for the exception and not the other way around. The rationale behind the 2003 amendments was, and much of the opposition to what we are proposing is, motivated by a completely different approach to freedom of information. The latter is, in part, grudging.

At the very least, it can be characterised by a sense that the individual must make a case for obtaining particular information rather than it being presumed that the information should be freely available, but with reasonable and rational exceptions. The starting point should be to have the widest possible latitude and freedom while a case can be made in legislation and administrative rules for where the exceptions should apply. It has as much to do with our culture and approach to the issue as it has with the individual legislative provisions.

I am sorry to say that the Minister of State’s contribution is from the old school. We know the Act was introduced in 1997 and that extra bodies have been added. We know all these things, which have been set out in the Minister of State’s speech.

To take the fees issue, however, it is difficult to see how the change in fees in 2003 was motivated by anything other than a desire to deter people from making freedom of information applications. Why else was it done? The Minister of State ought to be more direct with us as to why that was done. It comes through in his speech which quotes the extreme but interesting example of a request for access to the diaries of a number of civil servants and Ministers - the very idea of it. It involved reading through thousands of pages of documentation. At least that particular application had the advantage of only ever having to be done once as regards the diaries of civil servants and Ministers.

We understand that there is a burden on the State and the public service in respect of freedom of information. By introducing legislation in 1997 and believing in freedom of information, as Senator Callely said, we must be prepared to accept that a burden goes with the freedom we want to provide. It is no use taking the approach that it is so onerous and requires so many hours of work that we must restrict it. The presumption in any democratic society, especially a modern democracy such as ours, should be to make the information available, accept the burden and live with the cost to the State. I accept there is a cost to the public purse in providing freedom of information, but most entitlements we introduce come with a price tag. We must be prepared to accept that price tag within reason. It is not good enough for a Minister to point to the extraordinary cost or how onerous it is on us.

I was taken with Senator Boyle’s contribution when he said he felt the motivation for the 2003 changes was to some extent associated with a desire by senior civil servants for administrative convenience. I have no doubt the Civil Service has an important stake in this issue and that its voice must be listened to. I have enormous respect for civil servants who are the ones who have to administer this legislation but, as has been said many times in this House concerning this and other issues, it is for politicians and Governments to make decisions. Of course, we must listen to the Civil Service, including senior civil servants such as Secretaries General whose voices are vital. This is a crucial element of the public service so their views on how it works must be taken on board. Ultimately, however, politicians and Governments make decisions. Sometimes they have to tell senior civil servants that administrative convenience is trumped by an important citizen’s right to freedom of access to information. That right should override any considerations of how onerous or expensive the process may be.

In fairness to him, Senator Boyle said that issues can be revisited in Government. He pointed to the Aarhus Convention regarding information on the environment. If it is good enough in that area, why is it not good enough to extend to other areas of public concern? If he wants to have that wider debate, I would like to join him in it. For us to have a serious debate with this Bill as part of it, however, we would need to have heard something more positive in the Minister of State’s speech in terms of a commitment to act. Senator Boyle also said that there is a compelling case for a review of freedom of information legislation. However, the kind of review we need is not the notion of having things constantly under review in the Civil Service or having a look at them every now and again. There should be a review in these Houses in which the public can participate. That is the kind of review I am interested in having but, unfortunately, although we have brought this Bill before the House, it would appear the Minister of State is not prepared to countenance it.

The Minister said nothing in his speech about extending the Act to the Garda Síochána. I am surprised by that because it is a substantive issue in the Bill. Some of my colleagues have expressed concern about that, including Senator Buttimer who said he was not convinced and remained to be persuaded, which is a reasonable approach to take. Others were less certain and were supportive of it. I am surprised, however, that the Minister of State said nothing about extending the freedom of information remit to the Garda. It is not something that the Labour Party alone is advocating. As far back as 2003, the then Information Commissioner, Mr. Kevin Murphy, called for such an extension of the remit. The current Information Commissioner has called for that extension on a number of occasions, in 2006 and again last year. At least one member of the Garda Ombudsman Commission, Mr. Conor Brady, has also called for an extension of the remit to the Garda. It is important to note that of 26 member countries in the Council of Europe, Ireland is the only one that excludes its police force from freedom of information legislation. It is an extraordinary state of affairs. Mr. Brady, to whom I referred, said he saw no reason administrative matters in any institution should not be covered by freedom of information legislation. That is the point I made at the outset.

The overarching point I urge on the House is that the presumption should be for the widest possible latitude to be given to freedom of information requests while a case can be made for the exception, rather than the other way around. I regret to say our culture is still dominated by the latter view, including in the Civil Service throughout many Departments and in Government itself. I dare say that Senator Boyle has found that culture exists there, although I do not doubt his good faith in saying that he favours revisiting the matter. From what I have observed of the Government, the public service and the Civil Service in particular, there is no doubt in my mind that the culture is the other way around. It concerns the freedom of information threshold they can live with rather than a presumption of the widest possible information being made available to the public.

It is unfortunate the Government side has indicated it will not accept the Bill. I would be happier and more convinced of the Government parties’ bona fides if they said that while they would not accept the Bill, they would be prepared to bring forward some measures to address the many issues raised in our Bill.

However, it has not done that. I do not know when the review Senator Boyle mentioned will happen or if it will, but if there is such a review, it is vital that the public and the Houses of the Oireachtas are involved in it. I believe this Bill would have been an interesting and helpful first step in such a review. I thank the Members for their commitment, attention and interest in this Bill.

More :: Read a full transcript of the debate by clicking here.
More :: View the Freedom of Information (Amendment) Bill 2008 by clicking here.