Committee Reports::Report No. 07 - Review under Section 32 (2) of certain provisions under the Freedom of Information Act 1997::13 September, 2006::Report


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Committee Reports > List of Committees > Joint > 2006 > Committee on Finance and the Public Service > Report No. 07 - Review under Section 32 (2) of certain provisions under the Freedom of Information Act 1997

TITHE AN OIREACHTAIS

An Comhchoiste um Airgeadas agus an tSeirbhís Phoiblí

An Seachtú Tuarascáil

Athbhreithniú faoi Alt 32 (2) ar fhorálacha áirithe faoin Acht um Shaoráil Faisnéise 1997 (arna leasú san Acht um Shaoráil Faisnéise (Leasú) 2003)

Meán Fómhair 2006

_______________________

HOUSES OF THE OIREACHTAS

Joint Committee on Finance and the Public Service

Seventh Report

Review under Section 32 (2) of certain provisions under the Freedom of Information Act 1997 (as amended in the Freedom of Information (Amendment) Act 2003)

September 2006

Review under Section 32 (2) of certain provisions under the Freedom of Information Act 1997 (as amended in the Freedom of Information (Amendment) Act 2003)

Table of Contents

Introduction

Report of the Joint Committee

Legal Framework:

Table A - Enactments that are not currently included in the Third Schedule and where the relevant Government Ministers, the Information Commissioner and the Joint Committee all recommend their inclusion in the Third Schedule

Table B - enactments that are not currently included in the Third Schedule and where the relevant Government Ministers, the Information Commissioner and the Joint Committee all recommend their continued exclusion from the Third Schedule

Table C - Enactments that are not currently included in the Third Schedule and where the relevant Government Ministers recommend their continued exclusion from the Third Schedule. In these cases the Information Commissioner disagrees with the Ministers recommendations. The Joint Committee supports the Ministers recommendations

APPENDIX 1 - List of Members

APPENDIX 2 - Orders of Reference

APPENDIX 3 - Reports from Government Ministers under Section 32 (3) of Freedom of Information Act 1997

APPENDIX 4 - Report of the Information Commissioner to the Joint Committee on Finance and the Public Service for the purpose of Review of Non-Disclosure Provisions in accordance with the Freedom of Information Act 1997 [Section 32]

APPENDIX 5 - Response from Government Ministers to the Joint Committee on Finance and Public Service to a request for observations on the views of the Information Commissioner

APPENDIX 6 - Proceedings

•16 March 2006

•20 April 2006

•7 June 2006

•5 July 2006

•19 July 2006

•26 July 2006

Introduction

Freedom of Information is about allowing members of the public access information held by public bodies to the greatest extent possible consistent with the public interest and the right to privacy.

There are a number of provisions in other Acts of the Oireachtas and in secondary legislation which provide for restrictions on the ability of members of the public to access information under the FOI. These are often referred to as ‘non-disclosure’ or ‘secrecy’ provisions. FOI upholds such provisions except for those listed in the Third Schedule of the Act.

The FOI Act requires that provisions not listed in the Third Schedule should be reviewed periodically by a Committee of both Houses. The Joint Committee on Finance and the Public Service is the authorised Committee to conduct such a review. The Committee is required to ascertain if, having regard to the provisions, purposes and spirit of the FOI Act, any of these provisions should be amended or repealed or whether FOI should take precedence.

A large number of provisions were examined in the Joint Committee’s first review of non-disclosure provisions, the results of which are contained in this report. In conducting its review, the Committee has had regard to reports from each Minister and from the Information Commissioner in relation to the various provisions concerned.

Sean Fleming T.D.,

Chairman,

13 September 2006

Report of Joint Committee

The Joint Committee sought reports from each Government Minister under Section 32 of the Freedom of Information Act. These reports are included as Appendix 3.

The Joint Committee forwarded these reports to the Information Commissioner for the purpose of the review of the non-disclosure provisions in accordance with the Freedom of Information Act. The Information Commissioners report is included as Appendix 4.

We then sought observations from Government Ministers where the views of the Information Commissioner were at variance with the Ministers’ original report. These responses are included as Appendix 5.

Section 32 of the FOI Act requested a Committee of both Houses of the Oireachtas to review non-disclosure provisions other than those already included in the Third Schedule of the Act; i.e. those non-disclosure not in the Third Schedule.

The reports from the Ministers and Information Commissioner dealt with all non-disclosure provisions including those already included in the Third Schedule and those not included in the Third Schedule.

The role of the Joint Committee was to review only those non-disclosure provisions not included in the Third Schedule. During the course of our deliberations we considered items which were already in the Third Schedule but these are necessarily not part of our report. The transcripts of these debates are available on the Oireachtas website. www.oireachtas.ie

The Joint Committee agreed to meet with one Department to assist it in its consideration of the opinions within the remit of that Department. The Department of Health & Children was selected and the meeting took place on 20th April 2006.

Overall we summarised the work of the Joint Committee in 3 Tables as follows.

Table A.

Table A contains a list of enactments that are not currently included in the Third Schedule and where the relevant Government Ministers, the Information Commissioner and the Joint Committee all recommend their inclusion in the Third Schedule.

Table B.

Table B includes a list of enactments that are not currently included in the Third Schedule and where the relevant Government Ministers, the Information Commissioner and the Joint Committee all recommend their continued exclusion from the Third Schedule.

Table C.

Table C includes a list of enactments that are not currently included in the Third Schedule and where the relevant Government Ministers recommend their continued exclusion from the Third Schedule. In these cases the Information Commissioner disagrees with the Ministers recommendations. The Joint Committee supports the Ministers recommendations.

Legal Framework

Section 32 (2) of the Freedom of Information Act 1997 states

“A joint committee of both Houses of the Oireachtas shall, if authorised in that behalf by both such Houses (and such a committee so authorised is referred to subsequently in this section as ‘the committee’) -

a)review from time to time the operation of any provision of any enactment that authorise or require the non-disclosure of a record (other then a provision specified in the said column (3)) for the purpose of ascertaining whether, having regard to the provisions, purposes and spirit of this Act -

(i)any of those provisions should be amended or repealed, or

(ii)a reference to any of them should be included in the said column (3),

b)prepare and furnish to each such House a report in writing of the results of the review aforesaid and, if it considers it appropriate to do so, include in the report recommendations in relation to the amendment, repeal or continuance in force of, or the inclusion in the said column (3) of the reference to, any of those provisions.”

The Joint Committee on Finance and the Public Service in an Order dated 8^th July, 2004 from Dáil Éireann and 8^th July, 2004 from Seanad Éireann was so authorised to discharge those functions.

Section 32 (3) of the Freedom of Information Act 1997 states

“A Minister of the Government shall, in accordance with sub-section (6), prepare and furnish to the committee reports in writing -

a)specifying, as respects any enactments that confer functions on that Minister of the Government or on a public body in relation to which functions are vested in that Minister of the Government any provisions thereof that authorise or require the non-disclosure of a record, and

b)specifying, whether, in the opinion of that Minister of the Government and (where appropriate) any such public body, formed having regard to the provisions, purposes and spirit of this Act -

(i)any of the provisions referred to in paragraph (a) should be amended, repealed or allowed to continue in force, or

(ii)a reference to any of them should be included in the said column (3),

and outlining the reasons for the opinion.”

In accordance, with Subsection (3) of the above, Ministers of the Government furnished reports to the Joint Committee.

Table A -Enactments that are not currently included in the Third Schedule and where the relevant Government Ministers, the Information Commissioner and the Joint Committee all recommend their inclusion in the Third Schedule

Arts, Sport and Tourism

Enactment	Provision
Irish Sports Council Act, 1999	Section 21

Communications, Marine and Natural Resources

Enactment	Provision
Fisheries (Amendment) Act 1997	Section 30
Turf Development Act, 1998	Section 32
Sustainable Energy Act, 2002	Section 19

Community, Rural and Gaeltacht Affairs

Enactment	Provision
Western Development Commission Act, 1998	Section 18

Enterprise, Trade and Employment

Enactment	Provision
Prices Act, 1958	Section 25
National Standards Authority of Ireland Act, 1996	Par. 5 of Second Schedule
Industrial Development (Enterprise Ireland) Act, 1998	Section 16
Industrial Development (Science Foundation Ireland) Act, 2003	Section 17

Environment, Heritage and Local Government

Enactment	Provision
Air Pollution Act, 1987	Section 16
Planning and Development Act, 2000	Section 113
Local Government Act, 2001	Section 80

Finance

Enactment	Provision
Ordnance Survey Ireland Act, 2001	Section 23

Justice, Equality and Law Reform

Enactment	Provision
Employment Equality Act, 1998	Section 61(5)

Health and Children

Enactment	Provision
Nursing Homes (Care and Welfare) Regulations 1993	Article 20
Health Insurance Act, 1994	Section 34(1),(2)
National Social Work Qualifications Board (Establishment) Order, 1997	Article 37, 37(1)
National Health Council on Ageing and Older People (Establishment) Order 1997	Article 24
Women’s Health Council (Establishment) Order 1997	Article 24
Food Safety Authority of Ireland Act, 1998	Section 43(1)
St. James Hospital Board (Establishment) Order 1971 (Amendment) Order 1998	Article 8
St. Luke’s Hospital Board (Establishment) Order 1999	Article 25
National Council for the Professional Development of Nursing and Midwifery (Establishment) Order 1999	Article 25
Pre-Hospital Emergency Care Council (Establishment) Order 2000	Article 35
Crisis Pregnancy Agency (Establishment) Order 2001	Article 24
Children Act, 2001	Section 178(1),(2)
Irish Health Services Accreditation Board (Establishment) Order 2002	Article 25
Health Research Board (Establishment) Order 2002	Article 25
National Treatment Purchase Fund Board (Establishment) Order 2004	Article 16
(National Haemophilia Council (Establishment) Order 2004	Article 16

Social and Family Affairs

Enactment	Provision
Pensions Act, 1990	Section 145 of Part XI
Comhairle Act, 2000	Section 18

An Taoiseach

Enactment	Provision
National Archives Act, 1986	Section 8(4)

Transport

Enactment	Provision
Air Navigation and Transport (Amendment) Act, 1998	Section 36

Table B -Enactments that are not currently included in the Third Schedule and where the relevant Government Ministers, the Information Commissioner and the Joint Committee all recommend their continued exclusion from the Third Schedule

Agriculture and Food

Enactment	Provision
EC (Mutual Assistance as regards correct application of legislation on veterinary and zootechnical matters) Regulations, 1993	Article 3(2)

Education and Science

Enactment	Provision
Commission to Inquire into Child Abuse Act, 2000	Section 27
Commission to Inquire into Child Abuse Act, 2000	Section 31,33 & 34
Residential Institutions Redress Act, 2002	Section 30 & 31

Enterprise, Trade and Employment

Enactment	Provision
Patents Act, 1992	Section 28,88,94,96 and 101
Patents Rules, 1992	Rules 23,64 and 65
Trade Marks Act, 1996	Section 43,70 and 91
Transnational Information and Consultation of Employees Act, 1996	Section 15

Finance

Enactment	Provision
Central Bank Act, 1942	Section 33 AK
Ombudsman Act, 1980	Section 9
Trustee Savings Bank Act, 1989	Paragraph 15 of Second Schedule
Waiver of Certain Tax, Interest and Penalties Act, 1993	Section 7
Taxes Consolidation Act, 1997	Section 859
Comptroller and Auditor General and Committees of the Houses of the Oireachtas (Special Provisions) Act, 1998	Sections 16 and 22
Various Double Taxation Relief Orders	Articles relating to the Exchange of Information

Justice, Equality and Law Reform

Enactment	Provision
Censorship of Films Act, 1923
Censorship of Films Act, 1925
Censorship of Publications Act, 1929
Censorship of Films Act, 1930
Censorship of Publications Act, 1946
Registration of Title Act, 1964	Section 107
Censorship of Films Act, 1970
Land Registration Rules, 1972	Rule 188
Video Recordings Act, 1989
Censorship of Films Act, 1992
Interception of Postal Packets and Telecommunications Messages (Regulation) Act, 1993	Section 10
Criminal Assets Bureau Act, 1996	Sections 10 and 11
Criminal Justice (Location of Victims Remains) Act, 1999	Section 9
Equal Status Act, 2000	Section 36(2)
Children Act, 2001	Sections 32 and 34
Data Protection (Amendment) Act, 2003	Paragraph 10 of Second Schedule
Independent Monitoring Commission Act, 2003	Section 9

Health and Children

Enactment	Provision
Vital Statistics and Births, Deaths and Marriages Registration Act, 1952	Section 2(5)
Adoption Act, 1952	Section 22(5)
European Communities (Health Act, 1947, amendment of sections 54 and 61) Regulations 1991	Article 3“54 (3)”
Stillbirths Registration Act, 1994	Section 8(3), (4)
E.C. (Official Control of Foodstuffs) Regulations 1998	Article 20
Civil Registration Act 2004 [awaiting commencement]	Sections 35(1), 62(1) and 73(4)

An Taoiseach

Enactment	Provision
Statistics Act, 1993	Sections 32 - 35 of Part V

Transport

Enactment	Provision
Air Navigation (Notification and Investigation of Accidents and Incidents) Regulations, 1997	Section 24(1) and 25(13)

Table C -Enactments that are not currently included in the Third Schedule and where the relevant Government Ministers recommend their continued exclusion from the Third Schedule. In these cases the Information Commissioner disagree with the Ministers recommendations. The Joint Committee supports the Ministers recommendations

Agriculture and Food

Title	Provision
EC (Authorisation, Placing on the Market, Use and Control of Plant Protection Products) Regulations, 2003	Article 11

Community, Rural and Gaeltacht Affairs

Enactment	Provision
Dormant Accounts Act, 2001	Section 26(2), 40
Unclaimed Life Assurance Policies Act,	Section 24(2)
2003

Education and Science

Enactment	Provision
Education Act, 1998	Section 53
Commission to Inquire into Child Abuse Act, 2000	Section 28
Residential Institutions Redress Act,2002	Section 28

Enterprise, Trade and Employment

Enactment	Provision
Companies Act, 1990	Section 21
Company Law Enforcement Act, 2001	Section 17
Industrial Designs Act, 2001	Sections 38(3), 39(2) and 39(5)
Industrial Designs Regulations, 2002	Regulation 31(2)
Competition Act, 2002	Sections 32,22(4) and 21(3)
Companies (Auditing and Accounting) Act, 2003	Section 31
Personal Injuries Assessment Board Act, 2003	Section 73

Environment, Heritage and Local Government

Enactment	Provision
Electoral Act, 1997	Section 14
Genetically Modified Organisms (Contained Use) Regulations, 2001	Article 9
Genetically Modified Organisms (Deliberate	Article 10
Release) Regulations, 2003

Finance

Enactment	Provision
Ethics in Public Office Act, 1995	Section 35
Public Service Management Act, 1997	Section 5(3)
National Pensions Reserve Fund Act, 2000	Section 13
National Development Finance Agency Act, 2002	Section 18

Justice, Equality and Law Reform

Enactment	Provision
Interception of Postal Packets and Telecommunications Messages (Regulation) Act, 1993	Section 12
Refugee Act, 1996	Section 19
Employment Equality Act, 1998	Section 97(2)
Private Security Services Act, 2004	Section 18 Par. 9 of Part 1 Schedule 2

Transport

Enactment	Provision
Merchant Shipping (Investigation of Marine Casualties) Act, 2000	Section 18

Health and Children

Enactment	Provision
E.C. (Recognition of Medical Qualifications) Regulations, 1976	Article 8(b)
Medical Practitioners Act, 1978	Section 45(5)
E.C. (Recognition of General Nursing Qualifications) Regulations, 1980	Article 7(b)
E.C. (Recognition of Midwifery Nursing Qualifications) Regulations, 1983	Article 8(b)
Dentists Act, 1985	Section 38(5)
Nurses Act, 1985	Section 38(5)
E.C.(Active Implantable Medical Devices) Regulations 1994	Article 20(1)(c)
E.C. (Hygiene of Foodstuffs) Regulations 2000	Article 18(8)
E.C. (In Vitro Diagnostic Medical Devices) Regulations 2001	Articles 17(4)(c), 20
E.C. (Medical Devices) (Amendment) Regulations 2001	Articles 12, 24 (a)