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Commissioner’s Opening Address to the Oireachtas Joint Committee on Finance, Public Expenditure and Reform

Commissioner’s Opening Address to the Oireachtas Joint Committee on Finance, Public Expenditure and Reform under section 32(5) of the Freedom of Information Acts 1997 and 2003 – 5 June 2013

I am grateful for the invitation to meet with the Committee this afternoon to present my opinions and conclusions in relation to the reports prepared by the various Government Ministers under section 32(3) of the FOI Act.  Before I comment on the contents of the report I have submitted to the Committee, there are a number of matters I would like to bring to the Committee’s attention.

Timing of the Current Review

Firstly, the FOI Act requires the first reports of the Ministers to have been submitted to the Committee within 12 months of the commencement of the Act and for subsequent reports to be submitted every five years thereafter.  Ministers are also required to provide my Office with copies of the reports.  In keeping with the prescribed five year cycle, the current review was due to have been carried out in 2009.  However, by the end of 2009, only nine such reports had been submitted.  The final outstanding report was submitted, by the Department of Finance, on 29 February 2012.   

Section 32 is a very important provision because it subordinates the access provisions of the FOI Act to all non-disclosure provisions in other statutes apart from those included in the Third Schedule to the FOI Act.  I reported, in my Annual Report for 2012, that many new non-disclosure provisions have been introduced since the FOI Act became law in 1997.  Indeed, Departments are reporting approximately 230 enactments containing non-disclosure provisions of which approximately 50% became law since 1 January 1998.  I noted in my report that this means as many non-disclosure provisions have been introduced since 1997 as were introduced in the preceding 75 years.  In my view, this highlights the importance of ensuring that reviews under section 32 are conducted in a timely fashion as required by the FOI Act.

On a related matter, I would ask the Committee to bear in mind that the reports of the various Departments do not necessarily capture all of the non-disclosure provisions currently in existence, given that nine of the reports are more than three years old at this stage.

Outcome of Previous Review

The second general comment I would like to make relates to my experience of having presented my previous report to the then Joint Committee on Finance and the Public Service in 2006.  While my views on the matter are already on the public record, I believe it is worth repeating I was disappointed that of the 36 secrecy clauses from a total of 150 identified, where I disagreed with the relevant Minister as to whether the secrecy provision should be made subservient to the FOI Act, the Committee recommendation was to support the relevant Minister in every case. 

I was disappointed in particular that the Committee had given no explanation of any kind, or any explanation in its report, as to why it opted for one set of recommendations over another.  I have decided to make this comment here today, if for no other reason than to highlight the importance I attach to the review process the Committee is undertaking and to urge it to bear in mind that section 32(2) of the FOI Act requires that in conducting the review, the Committee should have regard to the provisions, purpose and spirit of the FOI Act

My Report

As you can appreciate, my report is rather long and technical and I do not propose, in the course of this presentation, to go through it in detail and I will confine myself to some general observations on the approach I have taken.  Naturally, if the Committee has any questions on specific provisions mentioned in the report, I will be happy to deal with them.

As a general proposition, I take the view that all of the secrecy provisions should be subject to FOI except where there is a very clear case for exclusion.  It is important to note that the FOI Act does not apply at all to certain records held by public bodies.   For example, the Act does not apply to non-administrative records held by the Offices of the DPP and the AG.  Furthermore, Part III of the Act has specific exemptions to protect records for various reasons, whether by virtue of their coming within a specified class or to protect against certain specified harms likely to arise were the records released.  The FOI Act is not there to do harm and, in my view, the current safeguards in the Act are generally sufficiently robust to protect all of the important interests of the State.

I would also like to draw the Committee’s attention to my views on those statutory provisions deriving from EU law.  It has been argued that where non-disclosure provisions do no more than implement EU law, it is not appropriate to include any of them in the Third Schedule.  My view is that, by and large, such non-disclosure provisions should be included in the Third Schedule, where the protections and exemptions of the FOI Act can be applied, unless the source EU Directive explicitly prohibits disclosure in any circumstance.  It is also important to bear in mind that a confidentiality provision does not equate to a non-disclosure provision. 

This leads me to my final comment.  The Committee will note some instances in my report where I question whether certain provisions can be regarded as prohibiting access under FOI, given that the provisions apply “save as otherwise provided by law”.  I take the view that such provisions do not constitute absolute prohibitions of the type envisaged by section 32(1) of the FOI Act to support the refusal of access to information under the FOI Act.  If the Committee agrees, it may wish to consider recommending the inclusion of such provisions in the Third Schedule to remove any doubts on the matter.

That concludes my opening address and I am happy to deal with any questions you may have.

Thank you.