The proposed amendment to Section 20 of the Freedom of Information Act concerning the release of records relating to the deliberative process has the potential to result in costly litigation in the future, according to the Information Commissioner, Mr Kevin Murphy.
The amendment provides for the refusal of documents where a secretary general has issued a certificate stating that the record contained matter relating to the deliberate processes of a Department.
There would be no appeal to the information commissioner or to the High Court against such a decision by a secretary general.
Given the definition of "head of a public body" in section 2 of the FoI Act, a minister could not release a record under the FoI Act if the secretary general of his/her department or indeed the secretary general of another department issued a certificate in writing stating that the record contained matter relating to the deliberative processes of a department, Mr Murphy said.
The same position would apply in the case of the attorney general, the comptroller and auditor general, the ombuds- man, the information commissioner, the civil service and local appointments commissioners, the ceann comhairle and the chief executives of the numerous public bodies covered by the FoI Act including county managers.
"Accordingly, for example, the Minister for Finance would require to refuse to grant a request for access to a record which was certified by the Secretary General of the Department of Justice, Equality and Law Reform to relate to the deliberative processes of the Department of Agriculture and Food."
"Having regard to the functions of secretaries general of departments in general, and to the provisions of the Public Service Management Act, 1997 in particular, 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.
"In addition, it would seem inappropriate, having regard to the same considerations, that a secretary general of one department could issue a certificate in respect of the deliberative processes of another department. "
Mr Murphy said it might be noted in this regard that a secretary general of a department even in his/her statutory role as an accounting officer is still subject to ministerial direction with certain safeguards.
He said there would be an urgent need to establish in what ways the issue of a certificate in respect of a department's deliberative processes could impinge on the rights of independent office holders such as the comptroller and auditor general or the ombudsman who might be in communication with a department.
"Section 6 (8) of the FoI provides that nothing in the FoI Act prohibits or restricts a public body from giving access to a record (including an exempt record) otherwise than under the FoI Act unless it is prohibited by law.
"Where disputes arise between public bodies those bodies may choose to release records outside FoI resulting ultimately in unstructured and confusing situations. This would seem to be at variance with the co-ordination and centralisation of the release of records which seems to be the object of the amendment."