The proposed amendment to section 19 of the Freedom of Information Act designed to exempt access to records of a "committee of officials" assisting the Government could create serious legal problems in the future, the Information Commissioner, Mr Kevin Murphy, has warned.
In his report on the operation of the 1997 FoI Act, Mr Murphy yesterday said substituting the definition of "Government" with a "much more far-reaching and constitutionally unrecognisable definition" was "perhaps unnecessary" to achieve the objective it appeared to have been designed to achieve.
The commissioner said the definition of "Government" in section 19(6) of the FoI Act at a minimum meant a committee consisting at least of some members of the Government together with one or more ministers of state and/or the Attorney General.
By contrast, he said, the proposed extension of that definition could mean "Government" being a committee of officials, not one of which was a member of the Government.
"In relation to the far-reaching nature of the proposed definition, it is to be noted that in addition to ministers of state and the Attorney General, it is now proposed that a committee of officials is to be comprehended as included within the definition of 'Government'.
"The proposed definition of 'officials', in turn, goes so far as to include persons holding a position in the Civil Service of the Government or the Civil Service of the State, special advisers and, in the event of regulations so prescribing in the future, yet further persons who are members of other classes of person," Mr Murphy added.
"Special advisers by definition occupy or occupied excluded positions (within the meaning of the Civil Service Commissioners Act, 1956), having been selected for appointment to those positions by office holders personally otherwise than by means of competitive procedures or who are employed under contracts for services by office holders and whose functions or principal functions are or were to provide advice or other assistance to or for office-holders."
Mr Murphy said apart from the constitutional unrecognisability of the definition as so extended, the proposed amendment did not go so far as to indicate sufficiently clearly, if at all, when the expression "Government" in section 19 would admit the possibility that a committee of officials was being referred to and when it would not.
"In light of this, one could foresee significant levels of and room for dispute and argument over those provisions if they were to remain in their current form.
"For example, the term 'Memorandum for Government' is generally understood as one to be submitted to Government by a minister or by the Attorney General in accordance with the detailed rules laid down in the Cabinet Handbook.
"Under the amended section 19, 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."
The High Level Review Group considered that certain records created by specialist working groups set up by the Government would genuinely fall within the categorisation of "Cabinet records".
"It would appear that defining 'Government' in such a way as to include a 'committee of officials' may be an overly loose, unclear and inefficacious way of achieving what the explanatory memorandum sets out as the goal of the proposed amendment."