Was this website targeted by the State?

Now that the Government’s intention to proceed with the current fee regime seems clear (and indeed add new fee provisions) we should give our view on what his happening to FOI in Ireland. And unfortunately what we outline below is not an April Fool’s joke.

Back in 2009, TheStory.ie was established by myself and Mark Coughlan. We started this website for a few reasons, but one of the main ones was to obtain information from the Irish government in a systematic way using tools like the Freedom of Information Act (FOI).

We felt that FOI was being used in a very specific and narrow way, and in general was being used by journalists but not by the general public. We also felt that the implementation of the law was generally poor, largely because of the 2003 amendment to that law, and in general on how it is perceived by the people handling the requests. We committed to doing FOI in a new better way, and to publish any information we received on here.

Just after our first blog post, you, our readers asked to help with our effort. To that end you donated money to the cause, in order to fund our FOI requests – which is often an expensive and time consuming process (thanks to Ireland having FOI fees, and those fees being the highest in the world).

We used that money over the subsequent years to make requests, make appeals, pay for search and retrieval – and we’ve been quite successful. We argued the public’s case for transparency in NAMA at the High Court using AIE (a bit like FOI), and won (twice). We set precedents around the public interest override on personal information and on Cabinet records. In 5 years we sent over 200 requests, just in Ireland. We obtained never before seen documents from the ECB, and forced them to justify to the EU Ombudsman their refusal to release the Trichet/Lenihan letter. We used the US FOI Act, the British one, the European one, the ECB’s one and the Irish one.

During that time, the Fianna Fail administration fell. A new government was elected with promises of reform. One such proposal was to “restore the FOI Act” to it’s pre 2003 state. This was an indication that fees might be removed. But we were sceptical. And we were right – the promise was empty. A draft Bill appeared, then a pre-legislative process (in which we engaged extensively), then a full Bill appeared. Then a sneaky amendment appeared at Committee Stage that had never been mentioned before. And now we are at Report Stage, on the brink of passing a new law.

TheStory.ie for 4 years has used certain tactics in its FOI requests. These tactics have been developed because of how the current law operates and because of how poorly it’s implemented. These tactics and skills have, over that time, been passed on to other journalists, readers and citizens alike via blog posts and training to hundreds of people in person, over 1,000 subscribers and through more than 400,000 unique visits.

But now things are changing. Pretty much every method we developed to obtain access to information from government over the past 4 years are being legislated against.

We are somewhat flattered that the Government is probably drafting laws that target us – but we are also deeply concerned. Who benefits? The public certainly do not. Why would a government draft sections of a law to specifically target tactics used by a small blog?

Let’s go through two of these:

1. Multi-faceted requests

Because we were being charged €15 for every request, and because we were receiving donations from our readers, we were obliged to get as much information for every request as possible. This meant asking for multiple things in each request. This is called getting value for money. It would be remiss of us not to do this. Sounds reasonable, right?

The State’s reaction to us using this tactic has been categorical. An amendment to Section 12 of the Bill was drafted in secret, the wording of which had never appeared in any drafts in almost a year of pre-legislative scrutiny (in which we were involved). It was introduced at Committee Stage several months after the pre-legislative phase and months after the draft Bill was published. Here it was:


This is the State legislating against a tactic we at thestory.ie had successfully used and promoted for 4 years. And we only used it because of the unjustified €15 fee. If there was no fee, there would be no multi-faceted requests. Why did it appear so late in the process? Who proposed it? Who benefits from it? Who lobbied for it? Why was no one told about its drafting? What purpose does it serve? Does it serve the public interest?

Or is it an attempt by the State to prevent access to information, by blocking a workaround to the unjustified, and likely illegal, fee regime? We think it is, and have good reason to believe so, based on information we have seen. We also believe the multifaceted “issue” has been inflated to justify the addition of Section 12 (9).

2. Access to databases

In 2009 at the height of the John O’Donoghue scandal we sent our first request for a database. Not just parts of a database, but a whole one. And we wanted in a format like Excel. A request was sent to the Department of Arts, Sport and Tourism seeking the expense claims of everyone at the Department since the inception of the database – what is referred to as a datadump. We were refused, and spent over €200 of your money appealing that refusal.

Once it got to the Information Commissioner we reached a settlement with the Department and the data was released as asked. This was one of the first times an entire dataset was released, and with this knowledge we obtained dozens more databases, usually spending data, from several other public bodies, and made the entirety available online. This amount of State spending had never appeared online before in such detail or in such amounts. The data from An Garda Siochana and the HSE alone totalled nearly half a billion euro. We were trying to establish a precedent that any citizen could obtain raw data from a public authority.

When the FOI Bill was published last summer, Section 17 (4) appeared and again this had not come up during the pre-legislative phase. It came out of the blue when the Bill was published. Sound familiar?

Simon McGarr over at TuppEd pointed out the ridiculousness of the Section, as drafted:

(4) Where an FOI request relates to data which are contained in more than one record
held on an electronic device by the FOI body concerned—
(a) the FOI body shall not be required to take any step that involves the creation of
anything for the purpose of searching for, or extracting, records that did not exist
at the time of the making of the FOI request,
(b) subject to paragraph (a), the FOI body shall take reasonable steps to search for
and extract the records to which the request relates, having due regard to the steps
that would be considered reasonable if the records were held in paper format, and
whether or not such steps result in the creation of a new record,
(c) if the reasonable steps referred to in paragraph (b) result in the creation of a new
record, that record shall, for the purposes of considering whether or not such new
record should be disclosed in response to the request, be deemed to have been
created on the date of receipt of the FOI request,
(d) subject to this subsection, an FOI body is not required by this Act to take any
steps by way of manipulation, analysis, compilation or other processing of any
such records, or any data contained in records, held by the body.

Out of sheer embarrassment the State subsequently removed some elements of this Section – the bits that refer to “paper”. But the rest remain.

Again, a tactic we had repeatedly and successfully used over the past 4 years was being legislated against. This new provision, taken to its logical conclusion, prevents the type of requests we have been doing. And again we know it is probably us being targeted because we are among the only ones using the tactic (others using the tactic were journalists we shared knowledge with). Who drafted the section? Who does it benefit? Why was it drafted? What purpose does it serve? Who lobbied for it?

So in summary:

1. Try to get around upfront FOI fees by asking for more than one item in each request. Effectively outlawed.
2. Try to ask for databases as a method of getting more data from one request. Effectively outlawed.
3. Try to ask for email data using Outlook Exchange queries. Effectively outlawed.
4. Try to get more information using digital methods. Give more discretion to FOI officers to charge more.
5. Try to appeal unjustified decisions to the Information Commissioner. Multiplication of fees due to affects of 1).
6. Try to be an engaged citizen, interested in transparency. Do something. Legislated against.
7. Try to obtain information efficiently, be reasonable. Get horrendous search and retrieval estimates.

The media’s ability to scrutinise things like State spending and the rights to freedom of expression of the people of Ireland are being legislated against, and secrecy is prevailing.

Minister Howlin and others will say we’re being alarmist. But they would say that wouldn’t they?

They’re the ones legislating against the tactics we’ve been using.

Welcome to Ireland in 2014.

Merrill Lynch advice to Department of Finance

Via Pearse Doherty comes this result of an FOI request, reported on here:

Merrill Lynch & Co. told the Irish government in 2008 it would cost 16.4 billion euros ($22.8 billion) at most to rescue its banks, a quarter of the eventual bill for bailing out its financial system.

Merrill produced the estimate in a 45-page presentation to the Dublin-based Irish finance ministry on Nov. 18, 2008, according to documents released by the government after a freedom-of-information request by opposition lawmaker Pearse Doherty. Ireland paid the firm 7.3 million euros for banking advice in 2008 and 2009.

Full documents below, OCRd and turned the right way up.



ECB again refuses release of Trichet/Lenihan bailout letter

This morning the EU Ombudsman notified me that the European Central Bank governing council had refused her office’s request to release the November 2010 communication between then ECB President Jean Claude Trichet and then Irish Finance Minister Brian Lenihan, which I sought from the ECB two years ago.

The refusal yet again emphasises the culture of secrecy in which many European institutions operate. Despite the clear public interest in releasing the letter which the Ombudsman acknowledges, the ECB clearly believes it can operate with impunity. The decisions of the ECB, and its communications with the elected governments of Member States, are ones that European citizens should have access to, particularly in this context where Ireland has exited from the bailout and communications are a matter of record. European citizens seem to be powerless in the face of European bureaucracy and an endemic culture of secrecy within it.

Similar communications to Member States have variously come into the public domain, in Italy via a leak to the media and in Spain via a book written by the country’s former premier.

Unfortunately the EU Ombudsman has no power to compel the ECB to release the letter – her office should be empowered in this regard.

Here are the documents in relation to the release of the letter. Mario Draghi’s refusal:



The Ombudsman’s request to release:



An Garda Siochana, transparency and access to information

An Garda Siochana have been subject to some significant public scrutiny of late, in terms of how accountable and transparent the organisation is.

This blog has long held the view that the force should be subject to the Freedom of Information Act. The current FOI bill before the Oireachtas contains provisions that will include the force under the Act for the first time, but only in relation to “administrative” records.

However, like we believe NAMA is subject to the separate Access to Information on the Environment (AIE) Regulations, likewise we believe An Gardai Siochana to also be subject to those regulations.

To that end, last year I sent a request to An Garda Siochana seeking certain environmental information. As the Gardai have no AIE officer (despite having an obligation to have one), I sent my request to their press office. They replied:

Applications for Access to Information on the Environment should be made to:

Information Officer,
Departmental Strategy Unit,
Department of the Environment, Community and Local Government,
Newtown Rd,
Wexford

This response demonstrates just where we are when it comes to AIE in Ireland (and our international obligations under the Aarhus Convention). The Gardai were telling me to ask the Department of the Environment about information they held, and that they were legally obliged to respond to. I politely responded:

I’ve looked at the Regulations and this matter should should be dealt with by someone at An Garda Siochana, as the Department of Environment is not related to the request.

Perhaps you could point me to the person in charge of AIE requests at An Garda Siochana?

The Department of Environment doesn’t hold the information I’m requesting (it is its own public authority, as are all other the Departments, and authorities like Coillte, the Central Bank, the ESB, Bord Gais etc).

The information you quote is actually only related to AIE requests specifically to the Department of the Environment.

An Garda Siochana is a public authority for the purposes of the Regulations, so it is obliged to answer requests for environmental information (AIE requests). The process is similar in nature to Freedom of Information requests (though I know An Garda Siochana is not yet subject to FOI).

As the authority in question, there is one month for the requested information to be released, or rejected, citing any relevant exemptions under the Regulations.

Kind regards

Precisely one month later, the force responded to my request, and refused access citing “national security” and commercial sensitivity. I immediately appealed to internal review, as is my right under AIE Regulations. The Gardai failed to reply.

On the basis of deemed refusal, I then appealed to the Office of the Commissioner for Environmental Information, which then commenced an investigation into the force’s failure to respond to my request.

Following the commencement of this investigation I was then contacted separately by a member of the force at Garda HQ. On November 26 2013 I received an email stating:

I am directed by Assistant Commissioner Jack Nolan to refer to your request for a review of the decision of the Garda Press Officer following your request for information from An Garda Síochána.

The Commissioner has directed that Assistant Commissioner Nolan conduct this review. I am to advise that Assistant Commissioner Nolan is out of the country until 19 December 2013 but he would welcome an opportunity to discuss the above matter with you. In this regard I would be obliged if you could advise of suitable dates to meet with Assistant Commissioner Nolan.

This request is highly unusual, without the participation of the Information Commissioner’s office. Normally a settlement is reached via negotiation with the OCEI, not independently of it. I therefore saw little benefit to meeting with Assistant Commissioner Nolan, and replied:

Thank you for your email of November 26.

I am a little puzzled! What is the precise purpose of the meeting?

My understanding is that the OCEI has commenced an investigation following An Garda Siochana’s failure to answer an appeal for internal review in relation to an AIE request. As such I’m not sure what assistance, as the requester, I can provide in relation to the OCEI investigation.

Kind regards

To this I received no reply. The investigation is ongoing.

In light of this I then sent a second request, seeking:

1) Any and all information relating to measures carried out by An Garda Siochana to implement its legal obligations under the Access to Information on the Environment (AIE) Regulations 2007/2011. Specifically with reference to Section 5 (1) to (5) of the Regulations, what measures have an Garda Siochana carried out in particular vis-a-vis:

A public authority shall:
(a) inform the public of their rights under these Regulations and the Directive and provide information and guidance on the exercise of those rights, and
(b) make all reasonable efforts to maintain environmental information held by or for it in a form or manner that is readily reproducible and accessible by information technology or by other electronic means.,
(c) ensure that environmental information compiled by or for it, is up-to-date, accurate and comparable,
(d) maintain registers or lists of the environmental information held by the authority and designate an information officer for such purposes or provide an information point to give clear indications of where such information can be found.

Kind regards

I received a reply to this on December 19:

An Garda Síochána have responded to and are currently liaising with the Office of the Commissioner for Environmental Information. This matter is now being dealt with by the Office of the Commissioner for Environmental Information and all queries should be addressed to that office.

Incorrect, I pointed out. This was a new and separate request:

Thank you for your email.

However, this is new and separate request to the one currently under appeal with the OCEI. It was sent on November 4, and no reply was received by December 4.

There is a one month deadline to issue an internal review decision under the Regulations in relation to this request.

Kind regards

Following another month passing by, and time limits being breached, I then received a follow up email:

The formulation of a policy for An Garda Síochána in relation to its obligations under the Access to Information on the Environment (AIE) Regulations 2007/2011 has commenced.

As previously advised, Assistant Commissioner Jack Nolan is willing to meet with you to discuss whatever issues you wish to raise.

Any future correspondence in the matter should be forwarded directly to Assistant Commissioner Nolan commissioner_ST@garda.ie

Kind regards,

This response does not answer my original request. And this is where we are now. As far as I can see it is now clear the An Garda Siochana have essentially appointed Assistant Commissioner Nolan as their AIE officer, and all public requests seeking environmental information should be directed to his office.

So goes the current state of Aarhus legal obligations in Ireland. Our own police force is failing to enforce and implement a law from 2007, and amended in 2011. And if this is how they handle AIE requests, to which they’ve been subject to several years – how should we expect FOI to work in relation to them once the new bill passes?

(FYI Irish citizens can now (as of September 2013) complain about the Irish implementation of the Aarhus Convention directly to the Aarhus Convention Compliance Committee (ACCC) in Geneva)

That GSOC UK 3G network

In a statement to the Dail last week Alan Shatter said:

The third issue related to the security firm reporting the detection of an unexpected UK 3G network in the area in the locality of the GSOC offices which suggested that UK phones registered to that network making calls would be vulnerable to interception. Importantly, I am advised that neither the chairman nor any other member of GSOC or its employees use UK-registered mobile phones, so that the presence of any such device in the locality would not seem to have posed a threat to the integrity of GSOC’s communications systems. There appears to be no evidence that what was detected had any direct relevance to GSOC.

In the Irish Independent today, security journalist Paul Williams, well known for his crime coverage, wrote:

It has also emerged that the detection of a UK 3G mobile network during a sweep came from the mobile phones being used by the Verrimus security experts themselves.

…

A second anomaly relating to a UK 3G mobile network also appears to have been explained. It is understood experts from a security firm hired by GSOC had UK phones. Last week GSOC chairman Simon O’Brien told the Oireachtas Oversight Committee that he did not have a UK mobile phone but confirmed that “we had UK operatives who were operating in our building at the time”.

In response to questions from the Irish Independent, the GSOC spokesperson confirmed yesterday that “no GSOC staff member uses a UK mobile phone for official business”. When asked to confirm who were the “UK operatives” referred to by the chairman, the spokesperson revealed that they were “the UK security specialists undertaking the sweep”.

Anyone who understands how IMSI catchers work would know that the Minister is being selective and that Williams is flat wrong – mobile phones don’t create UK mobile networks.

What I am concerned at is the similarity between what Shatter said in the Dail, and what Paul Williams wrote in the Indo. Both appear to completely miss the point of IMSI catchers.

What is also interesting is that Williams quotes a GSOC statement which says [emphasis mine] “no GSOC staff member uses a UK mobile phone for official business”. GSOC chair Simon O’Brien travels frequently between England and Ireland, and doubtless (though I could be wrong) has a UK mobile phone intended for personal calls.

Let us speculate for a moment. If one was setting up a surveillance op on GSOC – and if the primary target was O’Brien – one would try to surveil every type of activity:

1) Listen in on phonecalls on his office phone
2) Listen in on conference room activity for meetings he might attend, and
3) Track his mobile phone activity – including voice, text and data.

It just so happens those were pretty much the three anomalies found by Verrimus.

Any other information gathered from GSOC in the course of the surveillance would be a bonus.

Commissioner rules on 1998 Cabinet level documents

Back in December the Information Commissioner issued a decision in my favour in relation to records pertaining to industrial grants from 1998. The full decision has been published, and it is the first decision of the Commissioner pertaining to Section 19 of the FOI Act – the part that relates to Cabinet documents, and their becoming available after 10 years has passed.

The issue at hand was whether the Department of the Taoiseach (and by extension the Department of Jobs, Enterprise and Innovation) were correct in redacting the names of certain companies that had received industrial grants in 1998. I had an issue with this. When I put the request in back in 2010, it was already 12 years since the events had taken place. Section 26 and Section 27 (Commercial Sensitivity) were cited by the DJEI as reasons not to release. Then late in the process (in 2013) they withdrew the arguments under those sections and instead argued under Section 31 (Financial and Economic Interests of the State and of Public Bodies).

Per the Commissioner, the Department argued:

The basis of the DJEI’s claims for exemption under section 31(1)(a) and (c) is that the State operates in a highly competitive international environment in seeking to attract and maintain direct foreign investment. According to the DJEI, no other competing jurisdiction releases the following type of information relating to industrial grant or other similar investment incentive schemes: the name of the company featured on the Cabinet record; the actual monetary value of the grants, whether employment, capital, or training grants; and the grant cost per job. The DJEI argues in essence that the release of such information would weaken Ireland’s competitive position in making offers relating to industrial development and encourage forum shopping by business operators. The DJEI places great emphasis on the “‘mobile nature’ of industry and its ability to relocate to another jurisdiction at the first sign of perceived breaches of confidence by the State Department with responsibility for industrial development”. It describes the redactions it proposes as “minimal” and “particularly relevant to the issue of protecting Ireland’s ‘bidding strategy’ in a fiercely competitive international playing field”.

They also argued closely to a Queensland FOI case, but the Commissioner gave that short shrift:

This is not Queensland. The records at issue are now over 15 years old. They were created during the heyday of the so-called “Celtic Tiger”. The Irish and world economies have drastically changed since then. I do not doubt that competition for direct foreign investment is as fierce as ever, if not more so. However, industrial grant aid is just one of many factors that determines a multinational company’s foreign investment decisions. It is my understanding, for instance, that Ireland’s low corporate taxes are considered to be a more important factor, as indicated by IDA spokesman Brendan Halpin in any article in The New York Times, dated 3 March 2005, entitled “Dublin withdraws promise of aid to Intel”. I simply do not accept that industrial grant information dating from over 15 years ago is of any relevance in today’s economy.

The companies originally contacted by Mr. Stokes did not object to the release of the information concerned. The Director of the parent company who made submissions in June 2013 indicated that only information of a more detailed nature than what is at issue in this case would be of concern to his company. Thus, the question of a breach of confidence is also not relevant.

I am not satisfied that access to the records concerned could reasonably be expected to have a serious adverse effect on the financial interests of the State or on the ability of the Government to manage the national economy. I am also not satisfied that access to the records concerned could reasonably be expected to result in an unwarranted benefit or loss to a person or class of persons. I find that sections 31(1)(a) and (c) do not apply. In the circumstances, it is not necessary for me to address the matter of the public interest under section 31(3) of the FOI Act.

This is a good decision and should go some way towards obtaining more Cabinet related documents from the late 1990s and early 2000s. The documents in question have now been released to me in full.

Glackin (Interim) Report

Thanks to the Oireachtas library becoming available recently, we now have full digital access to the fascinating Glackin (Interim) Report. While we have previously published the final Glackin report, in some ways the interim report is more interesting. This is mainly down to the detailed appendices.

The report involves such luminaries as now billionaire Dermot Desmond, now billionaire Joe Lewis, now billionaire JP McManus, Larry Goodman, Ansbacher Bankers Ltd, John Magnier, Lochlann Quinn, Michael Smurfit and Noel Smyth, among others.



Document – Flynn's court action against NAMA in New York

Screen Shot 2013-12-24 at 21.24.05

Above is the house at the address (300 Ridgeview Drive, Palm Beach, Florida 33480) given by developer John Flynn as part of his case against the National Asset Management Agency (NAMA), in court documents filed on December 20. NamaWineLake and Paul Williams at the Indo have both mentioned the filing.

The judge in the case is Lewis Kaplan who was previously a judge in high profile Guantanamo and Gambino family cases.

Obviously NAMA and its staff have denied (or will deny) the allegations made, and members of NAMA’s board (including some of the people named in the complaint) made a vociferous defence of the Agency at a Public Accounts Committee hearing the same the day the complaint was filed in New York. No documents have yet been filed by NAMA in relation to this case, but I will post them once they are available.

At the PAC hearing the head of NAMA Brendan McDonagh said there is a:

“carefully orchestrated operation . . . to damage Nama”. “It’s designed to damage Nama and undermine its credibility with taxpayers of this country.”

The full document is below:



The connection between fees and human rights

The CJEU has issued a very interesting judgment (Case C‑486/12) in the context of the Data Protection regime.

A dispute arose when a Dutch public authority wished to charge €12.80 to a person for seeking information about themselves under the Dutch Data Protection law. The person in question refused to pay the fee and appealed to court (and as an aside they also attempted to FOI their data instead). The Dutch court then sought to refer some questions to the CJEU, namely:

1. Does the provision of access [to data] (pursuant to Article 79(2) of the Wet GBA) constitute compliance with the obligation [to communicate] data undergoing processing as referred to in the second indent of Article 12(a) of Directive [95/46/EC]?

2. Does Article 12(a) of [that directive] preclude the levying of fees in respect of the communication, by means of a transcript from the municipal database, of the personal data undergoing processing?

3. If Question 2 is to be answered in the negative: is the levying of the present fee excessive [for the purposes of] Article 12(a) of [that directive]?’

The court’s ruling is particularly interesting in light of Ireland’s strange and unusual regime of charging for FOI requests, and whether that might be an infringement of the European Convention of Human Rights (or indeed the Charter). It also should impact how Ireland charges citizens for Data Protection requests themselves (€6.35). The court found:

29. In view of the importance – highlighted in recitals 2 and 10 in the preamble to Directive 95/46 – of protecting privacy, emphasised in the case-law of the Court (see Rijkeboer, paragraph 47 and the case-law cited) and enshrined in Article 8 of the Charter, the fees which may be levied under Article 12(a) of the directive may not be fixed at a level likely to constitute an obstacle to the exercise of the right of access guaranteed by that provision.

Here a direction connection is made between fees and the Charter of Fundamental Rights as enshrined in the European Treaties. It goes on:

30. It should be held that, for the purposes of applying Article 12(a) of Directive 95/46, where a national public authority levies a fee on an individual exercising the right to access personal data relating to him, the level of that fee should not exceed the cost of communicating such data. That upper limit does not prevent the Member States from fixing such fees at a lower level in order to ensure that all individuals retain an effective right to access such data.

This is similar to the regime that exists under the Aarhus Convention. In other words, no upfront fees, or search and retrieval fees, may apply to requests. In essence this means that no fees should now be charged for requests under the Data Protection Act. We have sought a response from the Irish Data Protection Commissioner, but imagine Ireland must legislate in light of this judgment.

As for FOI, I believe this further strengthens the case that FOI request charges in Ireland are illegal.