Tag: FOI

Decisions, Decisions

Thestory.ie would like to welcome a guest post from Rodney Breen of foireland.blogspot.ie

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There’s theory, and then there’s reality. In 2004, I was working for a British university, preparing the staff for the Freedom of Information Act due to come into effect on the following 1st January. One question people regularly asked was this: how much do we have to reveal about our contracts? Value for money seemed to require maximum disclosure. But how would our commercial relationships survive if we told the public anything they wanted to know?

The Lord Chancellor’s office, which introduced the new Law, provided guidance on how they thought it should work. So did the Information Commissioner, who would monitor its operation. The problem was, it was all theoretical. What we needed to know was how it would be interpreted in a real case.

Eventually, somebody appealed to the Information Commissioner for a decision. The Tate Gallery had commissioned an artist to produce a piece of work. Someone asked how much it had cost; the Gallery refused, saying it would damage their ability to negotiate contracts. The Commissioner looked at the evidence and concluded it would not. We had our answer: total amounts of contracts, at least, should be public.

For the professional FOI officer, and for the serious requester, Decision Notices are a hugely important resource. They show how the law is interpreted in real life cases. It’s the difference between looking at a car in the brochure and taking it for a spin. The UK Information Commissioner publishes all decisions shortly after they are completed. So does the Scottish Commissioner, who also publishes a list of cases currently under review.

When I began looking at how Freedom of Information works in Ireland, one of the first things I did was look for decision notices. To my astonishment, there were very few: the Irish Information Commissioner publishes only a selection of decisions. With fewer appeals because of the high fees, the result is a much smaller base of information to draw on. The Scottish Commissioner has published 1,568 decisions in just over eight years; in Ireland, after fifteen years, we have just 435.

I contacted the Commissioner’s Office to ask why. It took some time to get a reply:

Decisions are published on the website on a quarterly basis. The reason being that most decisions are category 1 and usually do not contain anything of significant value. At the end of each quarter the senior investigator will review all decisions made within the time period and decide which ones to publish. All Category 2 and 3 decisions are published. … The vast majority of decisions are Category 1. No Category 3 decisions were made in 2011, or 2012 thus far.

I pressed them to explain what the difference was between Categories 1, 2 and 3. Finally, I got an answer:

An internal system of rating decisions and identifying key decisions has operated in OIC for a number of years.

3 rating is a key decision which is identified as having high value and interest because it sets an important precedent, or clarification of the Commissioner’s stance on a provision of the Act, and/or breaks new ground.

2 rating is a decision of importance because of legal research carried out, or an issue discussed, which had not received in-depth treatment heretofore, or involving examination of records having significant public interest whilst not necessarily departing from the Commissioner’s published position on the issues arising.

1 (the majority of decisions) rating is a decision which broadly follows the Commissioner’s previous findings on the exemption(s) at issue and which is of interest primarily to the parties involved.

To me, this seems completely wrong.

It seems to be entirely down to the Commissioner’s staff to decide whether they are of interest. How can they tell? The experience of Freedom of Information tells us that what public bodies think are of interest is often very different from what people actually want to know.

It is absolutely extraordinary that an organization devoted to transparency seems so uninterested in disclosing its own workings. If we can’t see their decisions, can we be confident they are getting it right? Notices allow us to see that the Commissioner works in a fair and rational manner.

Decisions that don’t set a precedent can be just as important as those that do. If public bodies make the same mistakes, we may never know because the decisions won’t be published. Seeing the full range of decisions gives us a picture of how they are performing, and which ones perform best.

We need to see all the decisions made, on our behalf, by the Commissioner. Uploading all the unpublished ones could hardly take more than a couple of days. They should be published immediately and routinely. We also need them as PDFs, so they can be easily downloaded and studied.

I will be writing to the Information Commissioner shortly to ask for all decisions to be published, as a matter of urgency, and for all future decisions to be published as a matter of urgency. We’ll let you know how we get on.

Oireachtas Committee

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.

Submission to Oireachtas Committee re FOI Amendment

Fred Logue and myself have put together a submission, sent today, to the Oireachtas Committee on Finance and Public Expenditure & Reform on behalf of thestory.ie (and, I believe, our readers!).

Access to information is important y’know.



Who ran up a €1,600 bill ringing a single mobile number in Pakistan from the Oireachtas?

This story is by Ken Foxe and based on a recent story in the Mail on Sunday: Documents obtained under FOI are below.

A politican is suspected to have run up a bill of more than €1,600 calling a single mobile phone number in Pakistan, an unpublished Oireachtas memo has claimed.

Officials in Leinster House’s telecoms unit estimated that calls to a ‘very small number’ of foreign numbers were costing the taxpayer at least €14,000 per year.

Other costs included an estimated €1,249 bill for calling a mobile in Australia, €581 to a mobile in Lithuania, €381 to a Maltese mobile, €370 to a UK mobile, €366 to a South African landline and €331 to a landline in Cyprus. The officials admitted they were powerless to establish whether the expensive calls – made in 2010 – were legitimate as they don’t track who TDs and Senators call on their taxpayer-funded phones.

But the memo stated it was ‘difficult to imagine’ how they could be genuine. ‘It is difficult to imagine what Oireachtas business would give rise to calls costing €1,621 to a single Pakistani mobile phone number, and it would be irresponsible to consider the possibility that such calls might have been an unintended/improper use of the service provided. Without availabe data it is not possible to make any judgement on the matter.’

The discoveries were made after a report was commissioned following the ‘Ring of Kerry’ controversy in which a €2,639 bill was run up dialling a premium phone line to vote for Michael Healy-Rae, who was a contestant in the Celebrities Go Wild TV show.

That led directly to a ban on calls to premium rate numbers from all Oireachtas phones and immediately eliminated any potential for abuse. These unpublished memos, obtained under the Freedom of Information Act, were prepared internally but never sent forward for consideration by spending watchdogs.

The Oireachtas has confirmed they are now planning a review of telephone services to look at the risk ‘of inappropriate use, or excessively expensive use of telecoms facilities. However, tackling the problem of politician’s personal phone bills has proven difficult because of the cloak of secrecy that surrounds them.

The Oireachtas operates a screening process for calls and if civil servants, and other similar staff, run up excessive bills – the costs are immediately red-flagged. But this screening does not apply to TDs or Senators, which means inappropriate use of phone facilities can never be investigated.

There is a proviso on the above figures in that they are based on seven months of usage, with a twelve-month figure extrapolated from the January to end July cost.

Original documents:



Ombudsman commences review of ECB refusal to release bailout letter

The EU Ombudsman has commenced its review of a decision by the ECB to refuse the release of a controversial letter sent to then Irish Finance Minister Brian Lenihan in November 2010. TheStory.ie has been pushing for the release of the letter both from the ECB and the Irish Department of Finance for over a year. Both organisations have refused to release the letter, and we have appealed the matter both to the EU Ombudsman and the Irish Office of the Information Commissioner.

Officials from the EU Ombudsman’s office visited the ECB’s headquarters in Frankfurt on December 12, 2012 and had sight of the document in question. They have now given us about six weeks to make our submissions as to why the document should be released.

These are the communications from the Ombudsman in relation to the review:



European Commission draft Winter Review 2012 for Ireland

The guys over at TheJournal have been analysing the contents of this document. TheStory.ie previously published the Summer review here.



That ECB bailout letter – an update

Back in August economist Karl Whelan pointed to an odd discrepancy in the dates referred to in my requests for information from the ECB in relation to Ireland’s baillout. Notwithstanding the ECB making a series of errors in their releases to me, and notwithstanding the ECB releasing several documents that the Irish Department of Finance had refused to release, there still remains two major, and indeed critical questions:

1) Was there a communication between the ECB and Brian Lenihan on November 12, 2010?
2) If so, what was the content of that communication?

Why you may ask, is this important? Well thestory.ie has spent the past 12 months trying to answer this question. We’ve gone to the ECB repeatedly. We’ve appealed their refusals for access to documents to the ECB President, Mario Draghi. We’ve appealed his refusals to the European Ombudsman. We’ve appealed refusals by the Irish Department of Finance to the Irish Information Commissioner.

Untitled
The Evening Herald leads with documents obtained by thestory.ie

In every communication, both bodies have denied the existence of any record of a communication on November 12, 2010. But we believe this position to be untenable. Let’s cast our minds back to that week and look through the chronology of events:

Friday, November 12: Bloomberg reports on Irish bailout “Being urged by European policymakers to take emergency aid”. Brian Cowen led denials that weekend. Our contention is that communications took place between Ireland and the ECB on this date. Any record of communication is denied.

Sunday, November 14: Following speculation over the weekend, on The Week in Politics, Justice Minister Dermot Ahern again denied that bailout negotiations were taking place. He said he spoke to Brian Cowen and Brian Lenihan “that morning”.

Tuesday, November 16: Lenihan goes to Brussels for meeting of Finance Ministers. The main issue is Ireland.

Wednesday, November 17: British Chancellor says Britain is willing to lend to Ireland.

Thursday, November 18: Morning Ireland. Patrick Honohan calls RTE and goes on air from Frankfurt. “A loan will be made available, and drawn down as necessary”. He says he did not discuss the call in advance with Cowen or Lenihan. Teams from the IMF, EC, ECB etc were already in Dublin that morning, and “within an hour of the [Honohan] interview, the teams were sitting down in the Irish Central Bank for their first meeting”.

Friday, November 19: Lenihan confirms talks on a bailout are underway. This apparently is when the ECB sent a letter to DoF about a bailout, but how could it be the only substantial communication from the ECB given all that had happened over the previous week?

Monday, November 21: Government formally asks for help.

So on what basis do we believe the critical communications took place on the 12th, and not the 19th as is contended?

1) Brian Lenihan indicated it clearly, personally
2) His advisor Alan Ahearne said the same
3) Journalist Stephen Collins refers to it, having had sight of other leaked documents

Dan O’Brien says in his BBC documentary (at 5.07 in the interview):

Dan O’Brien: “Finance Minister Brian Lenihan has told us, in fact, that he had received a letter from Jean Claude Trichet, the President of the European Central Bank, on the Friday – and so before those government denials. In it, he says, the ECB spelled out its concerns about the amount of money it was owed by Irish banks and suggested that the country should be looking at applying for a bailout.”

Mr Lenihan says in audio:

“Mr Trichet wrote to me, he raised the question about whether Ireland would be participating in a programme at that stage. I rang Mr Trichet after receipt of the letter, but it was clear to me that there was a serious issue for Ireland, and I said it was important we discuss those concerns. And we agreed that on the following Sunday there would be an official level discussion about these issues in Brussels.”

When pushed about the rumours of a bailout over that weekend, Lenihan continued:

“I was in very difficult negotiations, we were simply having exploratory official discussions.”

And Alan Ahearne:

“Yeah, the letter came in on the Friday from Trichet. The ECB were getting very hostile about the amount of money that it was having to lend to Ireland’s banks. The ECB demanded something be done about it and it mentioned Ireland going into the bailout. They were keen to get Ireland into the programme.”

He added:

“Lenihan rang Trichet that day, and they agreed officials would meet the following day in Brussels. When they met, the ECB put huge pressure on Ireland to go into the programme.”

Ahearne said Lenihan was now at the centre of international chaos and Ireland’s future hung in the balance.

“The following Tuesday, Lenihan went to the eurozone meeting, and I remember him coming back and describing it as a total circus.”

So why would the ECB and the Department of Finance deny records of communications on November 12? And why would an apparently contentious letter be sent after the bailout had been implicitly agreed, surely it would have been sent before?

Would an earlier communication prove that pressure for Ireland to accept a bailout came from the ECB long before the bailout had been implicitly agreed would take place as Patrick Honohan said on radio on November 18?

Is it credible that the ECB made no written communication to the Department of Finance between November 4 and November 18, when ECB officials were already in the Central Bank on Dame Street on November 18?

Is it credible that the ECB sent a contentious letter to Ireland on the 19th as they claim, when ECB officials were already meeting with our Central Bank governor, the IMF and European Commission representatives in Dublin the day before?

(For FOI nerds the issue is the existence, or not, of a record of communication, under Section 10 of the Irish FOI Act)

We await answers with interest.