April 2013 – TheStory.ie

Gamekeepers turned poachers

Here are some internal Dept of Finance documents on the move of a senior civil servant from the Department of Finance to Bank of Ireland.

Michael Torpey, who was employed on a salary of €200,000-plus annually, was transferred to the NTMA for three months and told not to work in his area of expertise – as part of a ‘cooling off period’.

He was asked not to return to his desk after Christmas because he had agreed to take a job in Bank of Ireland and was instead dispatched to the National Treasury Management Agency where, despite being an expert in banking, he was forbidden from working on any matter relating to it. Mr Torpey had been a key figure in the Department of Finance’s work on the restructuring of banks before being poached by Bank of Ireland late last year. He was due to begin work at the bank this month.

Once he announced his intention to leave his job, the Government insisted on a three-month ‘cooling off period’ funded by the taxpayer, according to documents released under Freedom of Information legislation. Mr Torpey’s move to Bank of Ireland caused concern in the Department of Finance, where there were issues raised over a possible conflict of interest.

Sinn Fein’s Pearse Doherty has raised questions over the move pointing out that Fine Gael had committed itself to a two-year cooling off period for senior civil servants moving to the private sector. He explained: ‘Michael Torpey – and I don’t want to cast aspersions on him personally – as head of state shareholder management unit had very sensitive information on all of the banks and now he has a senior appointment with Bank of Ireland.

“He has information on AIB – they are a direct competitor. And now to take up an executive position in a rival bank leads to all sorts of problems and all sorts of issues.”

The Department of Finance had said Mr Torpey would be subject to the provisions of the Official Secrets Act. But as Doherty said: “There is no “Men in Black” style machine to wipe his memory and say forget everything you knew.”

Elaine Byrne has also been looking at this area and published an interesting report on the increasingly frequent nature of such moves.

Documents obtained:

Great Southern Railways Stocks Tribunal Report

This is the Report of the Tribunal of Inquiry into Dealings in Great Southern Railways Stocks between January 1943 and November 1943. With thanks to Conor Ryan of the Irish Examiner for scanning.

Judge cites NAMA's delay as crucial factor in decision not to grant stay

On Friday the High Court refused to grant a stay to NAMA pending its appeal to the Supreme Court against the February decision of the High Court that NAMA is a public authority and therefore subject to the Access to Information on the Environment Regulations.

The power to grant a stay pending an appeal is a discretionary power and the Court set out the test that should be applied when exercising its discretion. The Court was of the view that a balance of convenience-type test is appropriate whereby once there is an arguable appeal the Court must examine the relative prejudices flowing to various parties as a consequence of its decision to grant or refuse a stay. This test was recently enunciated in Danske Bank t/a National Irish Bank -v- McFadden.

The Court also drew support from Okunade -v- The Minister for Justice, Equality and Law Reform, a 2012 Supreme Court decision which considered how courts should approach interlocutory injunctions in public law matters.

In reaching his decision the judge acknowledged that more than 1,000 days had elapsed since the request was made and was critical of NAMA’s behaviour in refusing to deal with the request by sticking firmly to the narrow issue that it was not a public authority. Despite having the resources and means to do so, NAMA decided it was not a public authority and took no further steps to process the request thereby neutralising the whole request and ensuring the process will take further time and result in further appeal to the Information Commissioner. This elongation was, the court found, a direct result of the unnecessarily narrow approach adopted by NAMA.

According to the judgment:

NAMA decided to dismiss Mr. Sheridan’s 2010 request for information on a threshold issue as to whether or not it was a public authority. No other decision has ever been taken by NAMA on his request even though it could have decided whether or not the information he sought comprised environmental information as defined and whether or not any of the mandatory or discretionary grounds for refusal of information were applicable. Thus, by framing its refusal so narrowly, NAMA have effectively neutralised the whole of Mr. Sheridan’s request and have ensured that the process is likely to take further time and result in further appeals to the Information Commissioner. The elongation of the process for deciding Mr. Sheridan’s request seems to be the direct result of the unnecessarily narrow approach adopted by NAMA in determining the request.

NAMA adduced no evidence to show that the processing of the request would be an unreasonable administrative burden nor that irreparable harm would be done should information be released in circumstances where it transpires that it is not a public authority. Since no information would actually be released the balance of prejudice favoured refusing a stay. Furthermore the judge also was of the view that the rights of third parties were amply protected by the mandatory and discretionary grounds for refusal. As the Court noted:

No substantive argument or fact has been put before me which would persuade me that dealing with Mr. Sheridan’s request will cause an undue burden, either administratively or financially to NAMA. If it were the case that dealing with his request would cause such difficulties, such an argument should have been made in detail and possibly by affidavit evidence.

This judgment is a clear signal that it is incumbent upon public bodies who wish to refuse access to information on the basis that they are not public authorities to deal with all issues arising under the request unless it is administratively burdensome to do so. They will receive little sympathy in the courts should a narrow position lead to significant delays in processing a request for information. It also is a signal that public bodies wishing to avail of discretionary court orders which introduce delays will need to show specific evidence of immediate, irreparable harm before a court will make an order that unreasonably prolongs the processing of a request.

This judgment sets an important precedent in relation to how the courts expect to see requests for environmental information handled by public bodies While the Commissioner for Environmental Information’s procedures did not feature in the judgment it is also certain that this judgment will have to be reflected in her office’s procedures.

While TheStory also made arguments in relation to EU and international law, the Court seemed to be satisfied that it had sufficient authority under national law to refuse a stay. It appears that we will have to wait until another time for further judicial consideration of the application of EU and international law to issues arising under the Aarhus Convention.

NAMA stay judgment

This is the judgment given by Judge Colm Mac Eochaidh on Friday morning in relation to NAMA vs the Commissioner for Environmental Information. In it, he refused to grant NAMA a stay on his February 2013 judgment that NAMA was a public authority under the Access to Information on the Environment Regulations 2007. He made the judgment following this blog’s submission to the court, both orally and in writing. The Commissioner took a neutral position on the stay.

In light of this judgment, NAMA sought and was granted a two week continuation of the stay to consider its position. It expires on May 3.

We believe this to be generally a very significant judgment for access to information, and for the Regulations. Fred will have a legal analysis later tonight.

Observations on the NAMA AIE judicial review

The experience in court yesterday highlights the unfairness of the judicial review procedure in relation to High Court appeals by public authorities under the Access to Information on the Environment Regulations.

Gavin as the requester had no automatic right to be a notice party to the proceedings even though his right of access to information formed the subject matter and the decision of the Court to grant of a stay could affect that right adversely.

Luckily the judge asked that Gavin be invited to address the court. He was, in fact, the only party to put arguments against a stay being granted since the Commissioner has decided to remain neutral on this issue.

We already know that in late 2011 the Commissioner was on the point of consenting to an application by NAMA to ask the court to find in its favour and thereby ending the appeal and reversing the Commissioner’s decision. Without being a notice party we do not know why or in what circumstances the Commissioner continued to fight the appeal. Crucially, we did not have the right to make submissions on the issue but rather had to rely on the discretion of the Commissioner to inform us of the position.

It goes without saying that this situation is fundamentally unfair.

Indeed, Article 9 of the Aarhus Convention guarantees applicants a fair, equitable, timely and not prohibitively expensive judicial review process. However serious question marks must be raised concerning how this provision is implemented in Ireland since there is no automatic right for an applicant to be a notice party to judicial review proceedings initiated by a public authority against an administrative decision.

It is not like the State has no experience of this issue. Ireland has already lost a case in similar circumstances when the European Commission took Ireland to the ECJ concerning the non-implementation of the “not prohibitively costly” element of the review obligations. The ECJ found that discretionary practices (in relation to costs) cannot be considered to be a valid implementation of an obligation. Yet here we are today and a requester for environmental information has no automatic right to participate in the appeal procedure initiated by a public authority.

This ECJ decision led to the enactment of Part 2 of the Environment (Miscellaneous Provisions) Act 2011 which means that now costs may not be awarded against plaintiffs in certain judicial review cases relating to environmental law unless there are exceptional circumstances.

Leaving aside costs, the NAMA -v- Commissioner for Environmental Information case has exposed further flaws in the procedures for environmental judicial review where a public authority is the appellant. With a minimum 7 year delay for a final appeal in the Supreme Court the procedures clearly lack the timeliness required under the Aarhus Convention and with no automatic right to be a notice party a fundamental lack of fairness is built in to the structure of the current review procedure.

The High Court, NAMA and a stay

This morning we attended the High Court after being invited by Judge Colm Mac Eochaidh to make a submission to the court in relation to NAMA seeking a stay on his judgment pending an appeal to the Supreme Court. This is the submission I read to the Court. Brian Murray SC, for NAMA, made a number of points about why NAMA had not behaved tactically, and was simply seeking to exercise its right to appeal. They also appeared concerned that if a stay was not granted, they would be subject to a flood of requests for information.

At the end, Judge Mac Eochaidh asked if I wish to respond – and I did on one specific point first – that the Regulations require a public authority to assist a requester and NAMA had not done so (having made an earlier point RE the process of reviewing and releasing information), and an additional final point – that NAMA will be subject to information requests, come what may, given that they will be subject to Freedom of Information Act according to the draft amendment published in 2012.

Overall the point we were making, and which Mr Murray did not address, is that the State has obligations under international treaties, under the Convention, under European law and under Irish law that citizens have timely processes in judicial and access to information procedures. These obligations are not voluntary – that’s why they’re called obligations. The rights of all Irish citizens are being infringed when processes such as this take this long.

Submission read in Court on April 17:

NAMA seeks stay pending Supreme Court appeal

Last week we received word that NAMA intends to seek a continuation of the stay on the judgment of the High Court in relation to National Asset Management Agency -v- Commissioner for Environmental Information [2013] IEHC 86 (that “and includes” means “and includes”), pending an appeal to the Supreme Court.

The continuation of the stay would prevent the judgment from taking effect. This would mean that NAMA would not be subject to AIE requests in the interim.

The judge in the case, Judge Colm Mac Eochaidh, invited myself as the requester, to make a submission to the court, as he was concerned about the impact on my rights in the
event that a stay is put in place.

Appeals to the Supreme Court are taking in the region of four years to be heard in the absence of an application for priority. And even if the case is deemed a priority it could still take at least a year for the matter to be dealt with on appeal.

Counsel for NAMA indicated that it did not intend to make written submissions to the court in relation to the application, but intended to rely on certain authorities (such as Danske Bank v Niall McFadden).

We have formulated a written submission to the Court and intend to make an oral submission to the court in the morning, April 17. It is due to be heard at 10.30am.

We will update as we get news, and publish our submission to the Court tomorrow. You can follow us on Twitter @gavinsblog and @fplogue.

Tomorrow it will be 1,169 days since our AIE request was sent to NAMA. It is estimated that thus far the case has cost the taxpayer €121,350, and any Supreme Court appeal will obviously increase that figure.

Micheal Martin's letter to Mario Draghi

Fianna Fail leader Micheal Martin wrote to ECB president Mario Draghi in January asking for debt relief on the Anglo promissory notes. In a letter released to thestory.ie from the ECB, Martin stressed the importance of Ireland obtaining a deal on the debt, stating:

The people of Ireland fully understand the legal constraints faced by you as President of the European Central Bank in relation to monetary financing of government. In a more flexible system most or all of this debt should simply be absorbed permanently. However, there is no clear legal or economic impediment to a restructuring of the notes on such a basis as to significantly reduce their impact. A longer term and lower cost would make a major contribution to Ireland’s recovery.

Mr President, there are many issues concerning Europe and recovery which divide parties in our country — this is not one of them. You can be assured that the arguments which you hear from Ireland are backed by a broad and deep consensus.

The ECB refused access to other documents relating to the IBRC bill on a number of grounds including:

…some of the documents that you requested contain internal and preparatory views that are also protected under Article 4(3) of Decision (a document containing opinions for internal use as part of deliberations and preliminary consultations within the ECB or with NCBS). The ECB considers that disclosing these documents would undermine the possibility for ECB staff to freely submit uncensored advice to the ECB’s decision-making bodies and that it would thus limit the ECB’s “space to think”. It is therefore in the public interest to protect internal consultations and deliberations. Disclosing the documents would also undermine the possibility of an effective, informal and confidential exchange of views with the Central Bank of Ireland, which is part of the Eurosystem. On the basis of the content of these documents, the ECB notes that there is no overriding public interest that could justify their disclosure, and it is not possible to grant partial access to them without undermining the interest protected.

Full documents:

FOI implementation review panel

Last month we were asked by the Department of Public Expenditure and Reform to participate in a review of the implementation of FOI (NOT related to the legislation, but rather to how the legislation is implemented).

We agreed, in the view that being part of a process of review is better than not – and there is a need for the views of readers and supporters of TheStory.ie to be represented.

Other participants in the review include Tom Felle from the University of Limerick, Colm Keena from the Irish Times, Maeve McDonagh from UCC (for whom I have given guest FOI related lectures, pro bono, to UCC students), Nuala Haughey from Transparency International Ireland, Seamus Dooley from the NUJ, Peter Feeney from RTE, Stephen Rafferty from the Office of the Information Commissioner (OIC), former secretary general of the Department of Community, Equality and Gaeltacht Affairs Gerry Kearney and some FOI managers from the Department including William Beausang, Ronan Fox, Jacinta O’Meara and Ron O’Connor.

As always we will publish details of meetings that TheStory.ie is involved in, included the date, time, duration, purpose and subject matter of the discussions. Previous access to information advocacy meetings are available in this spreadsheet.

We arrange and attend meetings in our spare time, with the sole motivation of serving the public interest for access to information rights. Of course, we *could* be in the pub instead. But we’d rather be acting on your behalf. We often do go to the pub afterwards though. Usually it’s Gavin who is in these meetings.

In somewhat unrelated news we sent an FOI to the same department seeking details of how FOI is implemented over the past two years, details of expenditure by the Department, the diary of the Secretary General of the Department Robert Watt, and other matters. This information was received on April 3 and in paper format. We will publish it as soon as possible, though the information obtained will help inform our views on how FOI policy is handled by public bodies.