5. Deputy Jonathan O’Brien asked the Minister for Public Expenditure and Reform to outline his plans to reform freedom of information legislation. (Question 53245/17 asked on 14 Dec 2017)

Deputy Mick Wallace: The questions relate to the current freedom of information legislation. Is the Minister satisfied that the legislation is functioning properly? Will the Minister consider amending section 44 of the Act so that he can instruct the Information Commissioner to carry out a review of the operation of the Act?

My interactions with numerous freedom of information departments, State bodies and Departments lead me to believe the legislation is not working. I do not believe this so-called world-class legislation is offering the transparency and accountability promised.

11 o’clock

We discussed this in September and the Minister stated he was not against the idea of looking at it. I am wondering what he thinks at this stage.

Deputy Paschal Donohoe: I propose to take Questions Nos. 5, 9 and 18 together.

As specified in section 43(3) of the Freedom of Information Act 2014, the Information Commissioner is fully independent in the performance of his functions, including those under section 44 of the Act. I have reviewed this area and I have no plans to amend the Act to allow for a Minister to instruct the commissioner in this regard. To do so would adversely affect the important independent role of the commissioner.

However, as Deputies may be aware, an extensive review of the operation of the freedom of information, FOI, framework fed into the development of the Freedom of Information Act 2014 which introduced a modernised, consolidated, restructured and more accessible system. The Act, alongside an FOI code of practice, seeks to bring about greater efficiency and consistency and promote best practice in the operation of FOI throughout public bodies.

Section 27 of the Freedom of Information Act 2014 relates to fees and charges. Among the key reforms of the Act was the removal of the requirement to pay upfront fees for making requests to public bodies and the significant reduction in the cost of applying for internal reviews and appeals to the Information Commissioner. In addition, in relation to non-personal requests, a minimum threshold of €101 was introduced below which no search, retrieval and copying fees can be charged. This means that if a request is focused and takes no longer than five hours to search for, the requests will be processed free of charge. However, I, as Minister, have no role in monitoring or policing of individual decisions, including in relation to fees.

For the information of the Deputy, some 30,417 FOI requests were processed by public bodies in 2016. It is a record number and a doubling of the number reached under the previous Act, with 73% of those requests granted either in full or in part. It is also worth noting that in only 3% of cases did requesters avail of the review mechanism available to them.

Deputy Mick Wallace: Speaking of charges, there needs to be a reform of the system. It lacks consistency in how search and retrieval fees are estimated or applied across various State bodies or Departments under FOI. Certain Departments are looking to charge crazy fees and it acts as a deterrent. Even though the Minister is telling me that the numbers are up, I would like to see what exactly is being retrieved.

I put in an FOI request to the Department of Employment Affairs and Social Protection on correspondence between the Department and the Office of the Data Protection Commissioner and the Road Safety Authority since 2010. I was given an estimate that the services of four staff members would come to a total of 654.5 hours search and retrieval work on my request and they were charging €20 an hour. The total bill was to be €12,912, not including photocopying. That, obviously, was a little on the prohibitive side and put me off somewhat. It is worth looking at.

Before I forget, if the Minister is writing to Santa Claus, will he ask him for two tickets for Spurs v. Juve and he can bring me to London for Christmas?

Deputy Eugene Murphy: Now there is one for the Minister.

An Leas-Cheann Comhairle: The Minister will oblige at a price.

Deputy Aindrias Moynihan: They have a lot in common.

Deputy Paschal Donohoe: Deputy Wallace and I have that in common anyway.

On his point in relation to a freedom of information request, there is an economic cost involved in meeting freedom of information requests. I am sure what the Department told the Deputy is correct, that it would take four civil servants that period of time to meet his request which means there is other work that cannot be done by them. As a result, it is reasonable to outline and charge applicants a portion of that cost. However, as the Deputy will be aware, we have brought in a minimum threshold and if the request takes no longer than five hours to search for, it will be dealt with free of charge.

The freedom of information legislation, despite the point made by Deputy Wallace, has yielded to him and others huge insights into both good things and challenges in our country.

Deputy Mick Wallace: Another area worth looking at is the recording of records. Neither the FOI Act nor the National Archives Act 1986, which covers Departments’ records, specifically require Departments or State bodies to make records in the first place. We now have a situation where civil servants are recording less and less and are not taking minutes of meetings all the time or notes of calls.

I was looking at a document entitled Governance Framework of the Department of Public Expenditure and Reform, the Minister’s own Department, written in 2016. It states, “It is proper to maintaining a meaningful record of the department’s activities to regularly thin out the documents you work with and to retain only those that provide for efficiency and contribute to transparency, accountability and a meaningful archival record.” I take it that “thin out” is another word for shredding. It needs to be looked at. Currently, it is only an offence under the FOI Act to destroy a record after a request has been received in relation to that record. We have a situation, for example, where NAMA can destroy all the emails of staff 12 months after they have left and it is not illegal. Is that right? Should it be that way? Does the Minister agree this is information that is in the public interest? Surely it is hardly good enough that NAMA should be allowed to destroy it after one year.

Deputy Paschal Donohoe: I cannot comment on the particular incident that the Deputy has referred to in relation to NAMA because I am not aware of it. I cannot comment on something unless I have more information on it. By and large, public bodies should be retaining all of their records that support decisions, either in relation to individuals or policy matters.

However, it is the case, certainly at political level, that the existence of freedom of information legislation has had an affect on the way Ministers communicate with their Departments and how they detail matters. I myself see it. It has happened to me. If I make a comment on a particular matter, the comment, when revealed under FOI, can then be interpreted in any way people see fit. There was an issue recently where I made a point in relation to the number of SNAs in the State. I merely made the point, in the context of a document I was assessing, that we now have more SNAs than gardaí. Within hours of that being revealed under FOI, I was being attacked for not appreciating the value of SNAs which, of course, I never said. It is a reality that freedom of information legislation has affected the ability of people like myself to communicate on matters like that.

In relation to freedom of information, Departments should be retaining all records on either individual or policy matters unless there is an exceptional circumstance to say they should not.

An Leas-Cheann Comhairle: As Deputy Wallace has another question grouped, he is entitled to one more supplementary.

Deputy Mick Wallace: The previous Minister for Finance, Deputy Noonan, gave permission for NAMA to destroy information a year after staff had left. Would the Minister consider looking at that, if he was not aware of it? I get the impression from the Minister’s previous reply that he thinks information should be on record. It is in the public interest that it is available. NAMA is a public body. Would the Minister consider looking at it in order to change the current arrangement?

Deputy Paschal Donohoe: As I said, I will not comment on the NAMA matter that Deputy Wallace has raised with me until I have more information on it and I can see was that decision taken and why. When I have had a look at that, I will be in a position to comment better on the matter.

An Leas-Cheann Comhairle: We are going back to Question No. 7. Deputy Barry was just coming in the door. There has to be a penalty and the penalty is that we will go straight to the reply.