Category: FOIs

Effectively, that is the same as the historical position on records. One could get any record if the period was reduced to five years. That is too short although I accept that 30 years is too long. I have little involvement with the 30 year papers but they are organised in my Department each year. To do that for five year papers would be wrong and I will give an example with regard to that. Later today, I am dealing with Northern Ireland matters and the Good Friday Agreement which was negotiated five years ago. If the papers were available about the same issues being negotiated today, there would be major difficulties. It is not possible to reduce the period to five years when one is dealing with the same people, process and issues.

I am not arguing that the period should be 30 years. The Act came in and I did not take issue with it at the time but five years is too short. On all other matters, no matter how inconvenient, such as how many telephone calls I made or what restaurant I went to, if I had lunch with somebody, or how much petrol my car uses..

So said former Taoiseach Bertie Ahern in 2003, during the change to the FOI legislation. He is referring to an amendment that made significant changes to the legislation, one of which was the increasing by five years of the expiry of Section 19 of the Act – records relating to Cabinet and interministerial communications.

It would appear that not only have the opposition failed to see the political import of the availability of Cabinet records from 1998 and 1999 (and now January/February 2000), but so have the media. Section 19 of the Act no longer applies to records that are over 10 years old. This 10 year limit started on April 21, 2008, and is a rolling process. For every day that passes in 2010, another day of records becomes available from 2000.

The Government that is in power now is more or less the same that existed in 1998, 1999 and 2000. Some new ministers, some old, musical chairs on the rest. Why would it not be political interesting for journalists and the Opposition to look back at decisions made in 1999 for example? The Redress board scheme was planned in 1999, the apology to victims was made in May 1999.

The Opposition in 2003 were quite vocal about the changes being made to increase the five year rule to 10 years. Enda Kenny even penned an Irish Times opinion piece, arguing that Bertie Ahern was increasing the limit in order to save embarrassing documents being released surrounding Ray Burke (the Fitzwilton payment came to light in the summer of 1998) among others.

I started the process of examining the issue of Cabinet records some months ago, and have requests pending with the Department of the Taoiseach. It is important to try and understand how such records are held in order to more accurately request information – this also involved trawling what made the headlines in 1998 and 1999, to remind myself what was scandalous, and what was newsworthy over that period.

Of course it is also important to read the Cabinet handbook to understand exactly what the records are called and what their purpose is. As a result of this process I have requested, and received, some initial records from that period. I will begin publishing them today, and all of next week. First up is the agendas for all Cabinet meetings between April 21, 1998, and December 31, 1999. These agendas only became FOIable after the 10 year rule had expired in 2008. I will upload them as I scan them, which will take some time.

Agenda for Cabinet, April 21, 1998:

Cabinet April 1998

Ken Foxe has blogged some interesting correspondence concerning the proposed paycuts for senior civil servants. He has also published the original documents. Ken writes:

THE Department of Finance climbed down on major pay cuts for 650 senior civil servants and other highly-paid public workers, primarily because they feared a costly legal action.

Legal advice had been sought by the Association of Assistant Secretaries and Higher Grades, which found that performance-related
awards were in fact part of a “core remuneration package”.

The Minister for Finance Brian Lenihan eventually decided to scale back the pay cuts for senior civil servants to take into account these bonus payments, which had already been stripped from their salaries.

A series of documents released under the Freedom of Information Act detail the to-ing and fro-ing that went on between the Department and the civil servants, as early as last May.

A letter sent by Bryan Andrews of the Association of Assistant Secretaries and Higher Grades said: “Our membership is also strongly
of the view that for the purpose of any exercise being contemplated as part of a reform of public service pay, Performance Related Awards must be seen as part of our core remuneration package.

“Such a position is strongly borne out by the legal advice now available to the Association. As you will appreciate from the foregoing, the Association has considerable concerns about this review exercise.”

“Legal concerns” seem to be quite common these days. Rody Molloy told us much about it.

Back in December, Allan Cavanagh of Caricatures Ireland contacted us in relation to his interest in the Papal Nuncio, and their involvment or communications concerning the Murphy Report. At the time there were calls for the Papal Nuncio to be expelled, over their apparent failure to cooperate properly with the Murphy investigation. We helped him draft an FOI concerning this issue.

Allan sent us a copy of the result, and we have OCRd and uploaded it for public consumption.

The documents do not contain much interesting information, as we expected Section 24 (Security, Defence and International Relations) was broadly applied. But even exemptions can contains valuable information.

What I am unhappy with in terms of the reply received is this. Allan sought:

All records, including but not limited to, notes of meetings, telephone calls,
emails and internal memoranda relating to communications between the
Department and representatives of the Vatican, the Catholic Church, the
Dublin Diocese or any other representatives of the Church or Church bodies,
in the time following the publication of the Murphy Report up to the date of
receipt of the request.

The Deciding Officer said:

Your request, which was received on 10 December 2009, is one of three requests
received for access to similar records. As there is a considerable degree of overlap
between the three requests, I have taken the decision to consider the requests together.
My response may therefore include some records which do not fall directly within the
scope of your individual request.

The schedule of documents does not list any communications from “the Dublin Diocese or any other representatives of the Church or Church bodies”. I cannot see how any Section 24 exemption would apply to such a communication. It could be argued by the Department that such communication would “contain information communicated in confidence to any person in or outside the State from any person in or outside the State and relation to a matter referred to in subsection (1) [including “the international relations of the State”]…and expressed by the latter person to be confidential or communicated in confidence”. This would not necessarily be the case in relation to communications from the Diocese, since it may not have related to inter-State communications.

But the reply does not appear to deal with this part of the request at all.

The Tribunal contacted me today to say that they had received a number of requests for transcripts over the past few days, and that they had decided to contact DCR to stop the release of a disc to me containing all transcripts of the Tribunal.

They have decided that rather than sending discs out to everyone who had asked for it, they will instead publish all transcripts onto the website of the Tribunal. They have said this will happen next week.

Here’s hoping.

Update: I was contacted by the Tribunal, who said they had contacted DCR, who have said “a disc is being prepared”. I await with bated breath.

Last month I put an FOI request in with the Department of the Taoiseach for the following:

(1) All transcripts of public sittings of the Moriarty Tribunal from its inception to the date on which this request is received.
(2) The contract for transcription services and a breakdown of fees charged for transcription services.
(3) The breakdown of fees for the maintenance and building of the Moriarty Tribunal website, and the contract for this.

Today I received the reply. I had to read it twice to let it sink in.

Moriarty reply

I can, in some way, live with the fact that the taxpayer spent the bones of €1 million on transcription fees since the inception of the Tribunal in 1998. But I cannot fathom how a) the transcripts are not available online and b) that I have to pay (again) to see the transcripts of the Tribunal and c) that Doyle Court Reports retains copyright on transcripts of public sittings of a Tribunal of Inquiry setup by the Department and paid for by the Irish people.

I called Doyle Court Reporters this morning and they were very courteous and helpful. I asked for a quote as to how much I would have to pay for digital (.doc) copies of all 370 days of public sittings of the Moriarty Tribunal. They called me back a short time later, stating that for all days the cost would be €16,600 @ €45 per day. But if I was bulk buying they would be prepared to offer a discount of 25%.

I did suggest to DCR that since the public had already paid nearly €1 million for the transcripts, it seems a little odd that I would, as a citizen, have to fork out another €16,600 to get copies of the transcripts. DCR were again courteous and helpful, and suggested I speak with the Moriarty Tribunal.

I then called the Moriarty Tribunal, where I spoke with the registrar, Siobhan Hayes. First I asked if the Tribunal had copies of all transcripts, to which the answer was yes. Are these subject to FOI I then asked… to which she eventually replied no, and that copyright was with DCR. I then asked why other Tribunals, such as Mahon and Morris, had published transcripts on their websites, and Moriarty ones were unavailable. I was told that the original agreement was that copyright would stay with DCR, and that was the way it was. I then asked for a copy of the contract or agreement between the Tribunal and DCR in relation to stenography services. Siobhan said she would get back to me on this issue.

Of course a couple of questions arise. First is whether the Department of the Taoiseach does hold the transcripts, but simply pointed me in the direction of Doyle Court Reporters for copies of them. Second is how, exactly, copyright on transcripts of a public sitting of a Tribunal applies.

Third, and most importantly, is why the transcripts are unavailable for public consumption as a matter of public record. These are historically important transcripts containing the sworn evidence of former Taoisigh including Charles Haughey and Bertie Ahern, as well as other former senior ministers, civil servants and businessmen, all in relation to extremely serious issues of public concern. Indeed when a Tribunal is established it is invariably included in the Terms of Reference that it concerns “definite matters of urgent public importance”.

Yet in relation to a matter of urgent public importance, for a Tribunal that is shortly to issue its second and final report, I can’t see who said what in relation to anything on any given day, whatsoever.

Mad, isn’t it?

Related post:
Morris transcript FOI