The Information Commissioner appears to believe the Freedom of Information Act is working very well. So why is the Government out to weaken it, asks Mark Brennock, Chief Political Correspondent
The Information Commissioner, Mr Kevin Murphy, has made no ringing denunciation of the controversial plans to restrict the Freedom of Information Act. That is not his job, he says. The Oireachtas makes the law and he implements it. "It would be entirely inappropriate for me to engage in public debate on the merits or demerits of the Bill," he said yesterday.
He carefully pitched the paper he produced yesterday as a commentary on the operation of the sections of the existing FoI Act which are proposed for amendment, something he is entitled to issue under the Act. However, the power of his contribution to irritate the Government became immediately clear last night.
The Minister for Justice, Mr McDowell, told the Dáil that Mr Murphy had "strayed across" a line by commenting on the Government's new Bill, rather than the existing Act. However, in an earlier statement Mr Murphy had insisted that while many people would like him to state his views on the proposed legislation, "I do not propose to do so".
But there are clear inferences to be drawn by readers of his commentary. The Act has been working well, the safeguards in the original Act are sufficient to protect sensitive information. The framers of this new Bill and the senior civil servants whose report informed it are setting out to impose additional restrictions not envisaged by the framers of the 1997 Act. This Government's intentions differ from the intentions of the Rainbow Government that introduced the FoI regime.
Mr Murphy makes a persuasive case that in their enthusiasm to dilute the current FoI regime, the Government may be laying the ground for future costly legal cases. He says certain amendments "seem inappropriate". On others he gives examples of cases he has dealt with in the past where records were released, but might not be released if the new Bill becomes law.
He identifies possible legal trouble on two of the amendments seen as important by the Government and senior civil servants to keep Civil Service advice out of the public domain. Firstly, in its enthusiasm to keep certain records secret, the Government has redefined "the Government" to suit its purposes. Under the 1997 Act, records of "the Government" may be withheld. Back then, "the Government" included a committee of ministers. Now, it is to include committees of officials assisting the Government. These do not even have to be civil servants.
Mr Murphy warns that this "constitutionally unrecognisable definition" of Government leaves great scope for legal trouble.
A Memorandum for Government currently means what any English speaker would take it to mean. However, if the Act is amended, says Mr Murphy, it will mean that "a memorandum prepared for a committee of officials appointed under the section would be a memorandum for the Government under the terms of the FoI Act". It is unclear when a committee is "the Government" and when it is not. It is, therefore, likely that this will generate "significant levels of internal review and review applications, cases stated and appeals on a point of law", he says.
He also points to difficulties with the amendment stating that the head of a public body shall refuse a request for information where a secretary-general has issued a certificate stating that the record contains matter relating to the deliberative processes of a Department. There is to be no right to appeal against the issuing of such a certificate.
This would seem to turn the definition of a relationship between a secretary-general and a minister on its head. The "head" of a Government Department is defined in law as being the minister, not the secretary-general. So a minister would be prevented from releasing records on foot of a certificate signed by his secretary-general - or any other secretary-general for that matter.
Mr Murphy cites the hypothetical example of the Minister for Finance being required to refuse access to certain records because the secretary-general of the Department of Justice had certified that it related to the deliberative process in the Department of Agriculture.
"It would seem inappropriate that a minister, as head of a Department, would require to comply with a final certificate issued by the secretary-general of his Department." It would also seem inappropriate, he says, for the secretary-general of one Department to be able to issue a certificate in relation to the deliberative processes of another. Although he doesn't say it, it would also seem to be contrary to the law in this area which makes it clear that a secretary-general is subject to ministerial direction, not the reverse.
The effect of this change would be to assert central control over information - Mr Murphy says this appears to be the object of the amendment. A certificate signed by one secretary-general will have the effect of suppressing information that could otherwise have been released by some other Government Department or public body. And there is to be no court of appeal.
Mr Murphy also notes one change which marks a clear departure from the intention of the framers of the 1997 Act. The current Act says Government records "may" be refused. The new Bill proposes that they "shall" be refused. So under the current law, there is discretion to release Government records if this would not do any harm. That discretion is to be removed.
On the proposal to keep Government records secret for 10 rather than five years, he merely notes that under the current five-year rule, there is scope for ministers to prevent release of certain papers simply by issuing a certificate.
Under the current law, some records would be released after five years with sensitive ones being withheld. Under the proposed new law, they will all be withheld for 10 years no matter what they contain.
He also draws attention to the tightening up of restrictions on the release of records concerning security, defence or international relations. Under the current Act, classes of these documents are exempt from release if it can be shown that their release would cause some harm. Such exemptions can be applied to communications between a minister and an embassy abroad, or between the Government and foreign governments, if it can be demonstrated that release would cause harm of some kind.
However, the proposed amendment excludes all such documents without it being necessary to show release would cause any harm at all. This is despite the fact that the current Act allows a minister to certify certain sensitive records, thus preventing their release.
It is clear that the Government's plans are to change the Freedom of Information regime in one direction only - that of making it more restrictive. Mr Murphy's report implicitly suggests that there are adequate safeguards already to protect the process of Government, national security and so on.
He will have an opportunity to give his analysis in further detail at tomorrow's meeting of the Oireachtas Committee on Finance and the Public Service. The pity is that no representative of Government will drag themselves from the Cheltenham races for long enough to explain why they want to restrict what, on the evidence of this report, appears to be working very well as it is.