Author: Gavin Sheridan

Earlier this Summer we learned that Pavee Point and the HSE had decided – at the last minute – not to launch or publish a research report they (either jointly or separately) had commissioned into Traveller homelessness – some of the first research of its kind.

The report was written by Brian Harvey and took a detailed look at the critically important issue of homelessness (and hidden homelessness) among Travellers.

There were conflicting stories about why the report had not been published – a report paid for with public money. So we initiated an FOI process with the HSE in August and last Friday the HSE finally issued a response.

This was after the HSE failed on several scores in relation to standard FOI procedures:

• They failed to answer our initial request in the time allowed
• They failed to acknowledge our internal review request on the basis of deemed refusal
• They failed to answer our internal review within the time allowed

In effect what we mostly got from the HSE was administrative silence.

We were left with no option but to appeal to the Office of the Information Commissioner to force the HSE to answer our request, and the OIC accepted our appeal.

On the Friday of a bank holiday weekend, months after our initial request, the HSE finally released documents – though crucially not the report itself. We here publish everything that was released to us, and a copy of the report which was published on Pavee Point’s website last week (though it’s hard to notice that they did, in fact, finally publish it).

In our request we sought:

“1. The Traveller community and homelessness report by Brian Harvey. (Pavee Point, 2021). | believe this report was submitted or sent to the HSE in June or July of 2021.

2. Any emails or written correspondence between Pavee Point representatives /Maynooth University staff and the HSE in the months of April, May, June and July 2021, inclusive.

3. Minutes, notes or other records related to any meetings between Pavee Point/ Pavee Point representatives and the HSE in January, February, March, April, May, June, July 2021, inclusive.

4. Any records held by the HSE in regard to the commissioning of the Brian Harvey report, scoping of the work, including the cost of the report and any invoices or recorded expenditure in relation to the report.”

The report itself was refused on the basis that it was in draft form and therefore fell into a deliberative process exemption (we would dispute that).

But emails do give some clues as to why the report was never published in the first place. First is an email from Ronnie Fay at Pavee Point saying that the report would be launched on June 22nd, all good so far:

Second is an email on July 2 from Pavee Point’s Ronnie Fay explaining that following a conversation with the HSE’s Martina Queally (chair of the Traveller Health Unit or THU), the report would not be published or disseminated “as research undertaken by Pavee Point”.

The second email is stranger. Sometime in early July following the decision not to publish, the author of the report Brian Harvey sent an email to research participants alleging that the HSE had intervened “to prevent its publication”. Ronnie Fay at Pavee Point received a copy of this email and then forwarded it to Martina Queally at the HSE. She wrote:

“I’m suggesting we ignore this. But wanted to alert you just in case!!”

Why was Pavee Point emailing the HSE saying they should ignore the person who did the research, alleging that his work was being blocked from publication by the HSE?

We learn later in the documents that the cost of the report was budgeted at €30,000 (not an unusual or significant amount in our view for such a report), but the amount invoiced for could well be much less.

So who decided the report was not worth publishing and why? And why did they fail to respond almost entirely to our FOI and internal review requests? Why the agreement between Pavee Point and the HSE not to publish a report they paid up to €30,000 for? Why then release the report on the Friday of a Bank Holiday weekend? What happened between the scheduled launch of the report, and a decision not to publish it at all?

From an FOI perspective there is also an interesting issue which can arise: the person who was in charge of Right To Know’s internal review (which never actually happened as such and was indeed never acknowledged), is the person mentioned in the emails – the chair of the THU Martina Queally. It is not good practice to have officials deciding what to release about themselves or indeed doing an internal review (the first stage of the appeals process) for obvious reasons – but it’s not necessarily unusual for this to happen.

The documents and report, as released and published, are below. They also include minutes of board meetings of the THU. If you find anything in there that we might have missed, please do leave a comment.

Today, Right To Know – in collaboration with US access to information NGO Public.Resource.Org (“Public Resource”) – announced they have initiated legal action against the European Commission at the Court of Justice of the European Union (CJEU).

Right To Know and Public Resource are seeking from the European Commission access to descriptions of certain technical standards agreed by the European Committee for Standardisation (Comité Européen de Normalisation) or “CEN“.

We sought technical public safety standards with the force of law that include the safety of toys, including children’s chemical sets and and those relating to the chemicals present in products such as finger paint.

Late last year, we sought access to these standards via a request under Regulation 1049/2001 (containing Aarhus Convention related amendments). The European Commission refused access to these standards at both the first juncture and after a confirmatory appeal.

Our legal action at the General Court seeks to annul this decision of the Commission to refuse access to these standards.

It is the view of both Right To Know and Public Resource that harmonised technical standards form part of EU law and should therefore be available to any EU citizen – without restriction.

We rely in particular on the decision of the Court of Justice in James Elliott Construction (C-613/14) that “a harmonised standard … and the references to which have been published in the Official Journal of the European Union, forms part of EU law”.

Right To Know Director Gavin Sheridan said: “We believe all EU citizens have a right to access and read all EU law. EU law includes harmonised technical standards – and those technical standards include the safety of toys.”

“We are pleased to be working with Public Resource and its founder Carl Malamud who has a very long and admirable record in working on access to information rights globally.”

“We are both perplexed as to why EU citizens – including parents – are unable to read the standards imposed on toy manufacturers concerning the levels of chemicals to which their children might be exposed. It seems odd to us that EU citizens must currently pay for access to this information – it should be available for free and without restriction on re-use, or dissemination.”

Public Resource and Right To Know are represented by Morrison Forrester in Berlin, Germany and by FP Logue solicitors in Dublin, Ireland.  

Public Resource is a not-for-profit public charity established in the United States to make government information more broadly available to citizens and to help make governments use the Internet more effectively.

Right To Know is a not-for-profit company established in Ireland that seeks to vindicate the rights of citizens to access information, as part of their fundamental rights to freedom of expression.