Category: Comment

As we expected, the Government has reacted to today’s media coverage of FOI and gone on the offensive. Yesterday included an embarrassing incident between the Department of Public Expenditure and Reform and internationally recognised experts on the rights to freedom of expression and access to information, ARTICLE 19.

Morning Ireland discussed it this morning (listen here), but suffice to say, ARTICLE 19 are strong opponents of the current and planned fee regime – “a violation of international law” doesn’t get much stronger.

To our amazement the Department had cited Article 19 as a source to justify fees.

The money quote:

“ARTICLE 19 understands that the Government of Ireland has issued a press release justifying the expansion of stringent fees on Freedom of Information Act requests by referring to the ARTICLE 19 Model Freedom of Information Law, developed in 1999. This justification represents a fundamental misunderstanding of both the Model Law and international law.

ARTICLE 19 strongly opposes the current Irish policy allowing for imposition of fees for making requests as well as the pending bill before the Dail to expand fees by allowing requests to be split and charged for each facet. We believe that it violates international law by placing unreasonable restrictions on the right of all persons to access information held by government bodies.

We note that following the adoption of the controversial amendments in 2003, the number of requests for non-personal information plummeted. This shows that the imposition of fees has had a profound affect on the right to information in Ireland.

The Irish Government position does not accurately reflect the text of the Model Law…”

It goes on:

We also note that this position is supported by the UN Human Rights Committee in General Comment 34 on Article 19 which states that “Fees for requests for information should not be such as to constitute an unreasonable impediment to access to information.” Further, the Council of Europe Convention on Access to Official Documents states “A fee may be charged to the applicant for a copy of the official document, which should be reasonable and not exceed the actual costs of reproduction and delivery of the document.” –

Anyways, the latest spin to emanate from the government was released earlier. Here’s the full release. But don’t jump to that link just yet – it’s so full of fanciful inaccuracies and misleading statements (surprise surprise), your head may explode.

But what we do want to thank the Government for though is compiling a list of countries that don’t charge for FOI upfront, among other things. Beware the Government’s list is oddly constructed – don’t let those green and red boxes fool you.

Let’s try this instead, by using the Government’s own data to help show you how patently ridiculous the Government’s claims are. And all we’re doing here is re-writing the Government’s own list in a new way, by listing all countries with no upfront fees. We’ve left out cases where there’s dispute, fees are or might be charged, or there’s a lack of clarity (or there’s no FOI law).

Let’s start with our EU neighbours

Estonia – no upfront fees
Slovenia – no upfront fees
Austria – no upfront fees
UK – no upfront fees
Sweden – no upfront fees
Bulgaria – no upfront fees
Hungary – no upfront fees
Norway – no upfront fees
Netherlands – no upfront fees
Romania – no upfront fees
Latvia – no upfront fees
Slovakia – no upfront fees
France – no upfront fees
Lithuania – no upfront fees
Denmark – no upfront fees
Greece – no upfront fees
Poland – no upfront fees
Italy – no upfront fees
Belgium – no upfront fees
Germany – no upfront fees
Croatia – no upfront fees
Finland – no upfront fees
Cyprus – left out

Now let’s move a little outside the European Union – these, say the Government, are also countries that don’t charge:

Serbia – no upfront fees (and rated the best FOI law in the world)
Georgia – no upfront fees
Russia – no upfront fees
Armenia – no upfront fees
Tunisia – no upfront fees
Montenegro – no upfront fees
Jordan – no upfront fees
Ukraine – no upfront fees
Azerbaijan – no upfront fees
Macedonia – no upfront fees
Moldova – no upfront fees
Kosvovo – no upfront fees
Kyrgyzstan – no upfront fees
Bosnia – no upfront fees

And a little further afield, where things take an interesting turn by comparison to us:

Colombia – no upfront fees
Rwanda – no upfront fees
Angola – no upfront fees
Panama – no upfront fees
Nepal – no upfront fees
Yemen – no upfront fees
Brazil – no upfront fees
Bangladesh – no upfront fees
Nicaragua – no upfront fees
Mexico – no upfront fees
Liberia – no upfront fees
Dominican Republic – no upfront fees
Guinea – no upfront fees
Cook Islands – no upfront fees
China – no upfront fees
Honduras – no upfront fees
Guatemala – no upfront fees
Peru – no upfront fees
Belize – no upfront fees
Jamaica – no upfront fees
Nigeria – no upfront fees
Uruguay – no upfront fees
Ecuador – no upfront fees
Mongolia – no upfront fees
Australia – no upfront fees

IRELAND – €15 to ask. €75 to appeal. €150 to appeal to the Commissioner. (The gov plans to reduce the last two, but eliminate none, and multiply the €15 depending on what you ask for. And don’t forget the €20.95 an hour search and retrieval fee once you’ve paid)

There’s your “international best practice” right there. Clearly we are not like any of these countries, we are a very special case, where we just can’t survive unless we charge citizens to exercise their rights.

More on this later…

We’ve had sight of new amendments to the FOI Bill 2013 proposed by the Department of Public Expenditure and Reform.

We will be blunt: if passed, Freedom of Information is dead.

TheStory.ie will, in all likelihood, cease all FOI requests. And we will not seek funding from the public to support an immoral, cynical, unjustified and probably illegal FOI fee regime. We will not pay for information that the public already pays for. We will not support a system that perpetuates an outrageous infringement of citizen rights. The legislation was gutted in 2003 and it is being gutted again. More generally the number of requests from journalists from all news organisations in Ireland will fall as a result of these amendments, and the resulting efforts to shine a light on the administration of the State will certainly deteriorate. And secrecy will prevail.

Minister Howlin will likely say “but we’re bringing more bodies than ever before into the FOI regime”. Great Minister, but we won’t have the ability or resources to FOI them. But then I think you already know that. If Mr Howlin was being honest in his so-called reform, he would simply repeal the legislation entirely and be done with it. Open data will be plugged – but open data regimes only release information the Government wants to release.

This blog was started 4 years ago with the pro bono objective of maximising the rights of citizens and journalists to access information from official sources. Within our rights to access information we used the now well known FOI Act 1997/2003, the Access to Information on the Environment Regulations 2007/2011, the UK FOI act, the United States FOIA 5 USC § 552, and the EU’s Regulation 1049/2001.

During that time we submitted over 200 access to information requests, funded by you to the tune of thousands of euro, while also arguing that the fee regime was wrong. As time went on we developed new techniques for seeking data rather than paper, techniques to obtain large amounts of information with a single request, included billions of euro of previously undisclosed public expenditure. We became known for the techniques we were using, and have trained journalists in Ireland on using those techniques, along with training journalists in Serbia, Croatia, Hungary and Spain. The data and documents we obtained made headlines in almost every Irish newspaper, often in many newspapers at the same time. When you see documents like Ireland’s application for a bailout, it was this blog that got it.

We also scanned and made publicly available for the first time historic but important documents. These included the Beef Tribunal Report (almost 1,000 pages), the Glackin Report, and many others.

We appealed decisions successfully, including important precedents on the balancing of the right to privacy with the public interest.

We sought information from Anglo Irish Bank and NAMA in 2010 under the AIE Regulations, and succeeded in arguing that both were public authorities under those Regulations with the Commissioner. (Gavin Sheridan and Anglo Irish Bank / Gavin Sheridan and the National Asset Management Agency).

When those bodies appealed to the High Court we made lengthy submissions throughout the process arguing that they were in fact public authorities. We created legal precedent around the implementation of the AIE Regulations in National Asset Management Agency -v- Commissioner for Environmental Information [2013] IEHC 86, when the High Court agreed that NAMA was in fact a public authority. When NAMA sought a stay on that judgment pending a Supreme Court appeal, we argued (among other things) before the court that such a stay if granted would be a breach of the State’s obligations under the Aarhus Convention by breaching our right to a timely judicial process. The court agreed, and NAMA appealed that to the Supreme Court. Just three weeks ago we asked the Supreme Court for an expedited listing in the case, which was also granted.

All efforts on this case were those of just two citizens, Fred Logue and me, acting in our spare time to try and vindicate ours – and the public’s – right to access information. These are rights we believe are enshrined in our rights to freedom of expression via the European Convention on Human Rights.

Back in July we promised you we would keep an eye on the passage of the FOI Bill 2013. Before that, we made detailed submissions to the Oireachtas Finance committee, both in person and in writing about the original FOI heads of bill. We also participated with the Department of Public Expenditure and Reform (DPER) in an external working group in an effort to make the FOI process (not the law itself) better.

Today we had a look at new amendments DPER proposes to make to the Bill. They are nothing short of staggering. In some ways we are going so far back that we might as well not have an FOI Act in the first place.

First is the changes to Section 12:

This provision kills all requests containing a request for more than one record from more than one division within a public authority. It’s also a proxy fee increase. If you ask for four things from different divisions of the same body, your request fee jumps from €15 to €60. This would kill most requests this blog has ever sent. It would also kill most requests by journalists who are trying to maximise the amount of information they can get for the unjustified €15 fee in the first place. The €15 fee created multifaceted requests.

This provision basically means that you can be charged anything for, well, anything. It gives discretion to officials to charge for moving a mouse or typing on a keyboard. If a public body wishes it, this will kill most FOI requests.

Is this the end of FOI in Ireland, should these amendments pass? Effectively, yes.

And why, you might ask, are all these new and significant amendments appearing now, just before Committee Stage? A cynic would suggest these changes were well considered in advance and are being introduced at the end of the process in order to sneak them in. But we’re not cynical, are we?

Here’s the full list of proposed amendments from DPER:

Courts.ie is a pretty difficult website to navigate. As government-type websites go, it probably has more information than you might expect. There is lots of room for improvement though. Apparently, in line with guidance from the Data Protection Commissioner, Courts.ie blocks Google from indexing its website. This relates to the so-called “right to be forgotten”.

However, access to information rights are not limited to access to government documents via FOI or AIE, they also extend to courts documents. In Ireland the system is positively Victorian.

A quick examination of the Courts Robots.txt file tells us how the indexing works. Robots.txt is the file that tells search engines what they can and can’t index. Here’s the Courts one:

User-agent: *
Disallow: /legaldiary.nsf/

User-agent: *
Disallow: /judgments.nsf/

User-agent: *
Disallow: /LegalDiary.NSF/

Which basically tells Google to feck off from the legal diary and judgments. The text that appears in these pages won’t appear on Google search results. This makes tracking Courts.ie all the more difficult, but also all the more essential, particularly for journalists.

For example:

These cases, filed on October 21, apparently involving IBRC (formerly Anglo Irish Bank) board members Alan Dukes and Mike Aynsley vs Independent News & Media, look to be of some news interest.

Tracking court filings is one of the basics of journalism, it’s a shame the Courts website doesn’t make it easier.

This is 1 Grand Canal Quay, where Denis O’Brien’s Communicorp Ltd is headquartered. The building is owned by Mr O’Brien personally, with a registered address at 77 Wellington Road, Dublin 4. I walk by it every morning on the way to work so I was curious about it.

A mortgage charge on the property was registered with Anglo Irish Bank in 2001, 2009 and 2011. Each of these have since been cancelled. The most recent charge from Anglo Irish Bank was cancelled on October 19, 2011.

A new mortgage charge was registered 5 months later with Bank of Ireland on February 29, 2012.

This is the full folio:

There are a number of active and former companies registered for the sixth floor at 1 Grand Canal Quay, some of which are connected to Mr O’Brien’s wide ranging business interests. They include:

Communicorp Group Ltd
Barathea Ltd
Digicable Ltd
Partenay Ltd
98 FM Classic Hits Ltd
Brigadoon Media Ltd
Communicorp Investments Ltd
Metro Radio International Ltd
The Haven Community Foundation Ltd
Trinity Property Golf Ltd
European Radio Corporation Ltd
Fieldsville Ltd
Island Capital Ltd
Island Capital Services Ltd
R-Tel Ltd
Radio Two Thousand Ltd
Spin South West Ltd
Web Radio Ltd

Mr O’Brien’s stake in Siteserv is via an Isle of Man company called Millington Ltd.

The Department of Public Expenditure and Reform today published the FOI Bill 2013. We will be keeping a close eye on the passage of this legislation.

Myself and Tom Lyons wrote yesterday in the Sunday Independent about new revelations from The Anglo Tapes, new audio of which is available over on Independent.ie.

This follows on from the trojan work of Paul Williams, Fionnan Sheahan, Dearbhail McDonald and Donal O’Donovan in the Irish Independent last week.

I am scheduled to appear in front of the Oireachtas Committee on Finance and Public Expenditure & Reform on February 6 at 11.30am to speak about the FOI draft bill. You can watch proceedings here from Committee Room 4. (unless they change rooms!)

As ever we will be trying to represent the views of other FOI practitioners and our loyal readers who have donated to our effort over the years. We will be strongly opposing plans to retain upfront fees.

It’s been an interesting week. There have been several articles about those ECB letters, and this blog has received a fair bit of traffic from various sources. So it’s worth going back over what has happened.

To start chronologically, it’s worth mentioning that Ireland has not been the only country getting letters of this nature from the ECB.

On September 29 last year, Mario Sensini writing in the Italian newspaper Corriere published the contents of a leaked August 5 letter sent to the Italian government by the ECB. The letter bares a striking resemblance to the purported contents of our own November 2010 letter.

The following December I sent a request to the ECB seeking access to “any and all communications from the ECB addressed to the Irish Finance Minister (or his direct office) in the month of November 2010”. On January 9, Pierre van der Haegan and Roman Schremser from the ECB sent a reply stating that two letters existed from November 2010, dated November 18 and November 19. They granted full access to the November 18 letter but refused access to the November 19 letter. I then appealed this to internal review at the ECB.

On February 8 I received a reply to my internal review from ECB president Mario Draghi. He stated that the Executive Board had thoroughly considered my request but they had again decided to refuse access to the November 19 letter. Myself and Tom Lyons wrote an article in the Sunday Independent on February 12, 2012, outlining the contents of Draghi’s letter. In both cases, in the original refusal and in the second refusal, no mention was made to any other letter from November 2010.

I, along with some other journalists, also sought any letters from the other side of the equation – the Irish Department of Finance. No reference is made in the schedule of documents to a communication in the week ending November 14. I appealed the refusal by the Department to release the letters to the Irish Information Commissioner in June. And there the matter has rested since – until recent weeks.

In a matter that appears to have some similarity to the Irish letter, on July 19 2012 the European Ombudsman made a decision on a request by a Spanish lawyer in relation to a letter sent by the ECB to the Spanish government. The lawyer sought a copy of the letter because he wanted to know if the ECB had sought an amendment to the Spanish constitution. The lawyer was refused access by the Ombudsman, “however, with the consent of the ECB President, he confirmed to the complainant that the letter did not suggest any amendments to the Spanish Constitution. The lawyer was satisfied with this outcome”.

Then on August 17, Karl Whelan pointed to an odd discrepency in an article in Forbes. He wondered why the ECB referred to a letter dated November 19, as per my ECB request, yet Brian Lenihan had always referred to receiving a letter on or around November 12. The week difference is important. Among other points, he asked “Did the ECB communicate with Brian Lenihan on November 12, 2010? If so, why was this letter not referred to in response to Mr. Sheridan’s request?”

On August 22, Minister Pat Rabbitte appeared on Tonight with Vincent Browne. Colm McCarthy speaking on the show said that reference to a letter of November 19 was “probably an error” on the part of the ECB and that they had likely got their dates wrong. Pat Rabbitte said “the ECB strong armed the Irish government into taking on board effectively private banking debt” but that he “hadn’t heard about the letter Colm is talking about”.

But then on August 26 Daniel McConnell writing in the Sunday Independent, quoted Finance Minister Michael Noonan as saying the bailout letter should be released. The issue of the letter was now back firmly onto the news agenda. Several articles appeared in print over the following days talking about the letter, and it’s possible release to any banking inquiry.

On September 1, Stephen Collins writing in a front page Irish Times story, wrote that his paper had sight of the letters. He wrote:

Three critical letters were dispatched by Mr Trichet to Mr Lenihan in the run-up to the bailout.

They were sent on October 15th, November 4th and November 19th, 2010. It also appears likely that an email or fax reinforcing the message was sent to Mr Lenihan on November 12th, prompting his conversation with Mr Trichet.

He further says:

On November 4th, Mr Trichet wrote another letter to Mr Lenihan. He repeated many of the points made in the earlier letter about the massive exposure of the ECB to Irish bank debt.

However the article did not quote from any of the letters, nor were the contents of the letters released by the Irish Times.

Given that Mr Collins has had sight of the letters, then what of the ECB’s position that there were only two communications in November, and not four (including the Nov 18 letter I did receive) as Mr Collins says? Is Colm McCarthy right, did the ECB just make a mistake? And what of a purported fax communication on November 12? What of the communication of November 4, that the ECB did not refer to in their communications with me?

To try and get to the bottom of this I have submitted a followup request to the ECB seeking further information on any other letters over a broader timeframe. I have also submitted a request about my original request and how it was handled by the ECB (also known as a meta-FOI). Let’s see what happens.

Politico.ie have posted recent correspondence between Denis O’Brien and journalist Vincent Browne. It makes for some interesting reading, especially in the context of correspondence between Dermot Desmond and INM and James Morrissey and Karl Brophy published on this blog.