Author: Ken Foxe

Under the Freedom of Information Act 2014, the Data Protection Commissioner was only partially included as part of the new law.

This means that only administrative records from the office can be sought under FOI and that all other records relating to investigations, including high-profile ones like those into Facebook and the Public Services Card, are entirely out of reach of the public.

This document is a submission by the Department of Justice explaining why they believed the Data Protection Commissioner should be protected from the full scope of the FOI Act.

Back in February 2015, Right to Know made a request for access to details of use of what is known as the ministerial air transport service by the President of Ireland.

Little did we know that it would take four years to get a decision.

The case was delayed time and time again with the government claiming at one stage it could impinge on state security or more bizarrely that use of the jet constituted personal information.

This, despite the fact, that such information is published as a matter of course for the Taoiseach, Tánaiste, and all other Ministers: https://www.defence.ie/ministerial-air-transport-service-mats

Ultimately, the Commissioner for Environmental Information ruled that the details were environmental information and that the travel logs should be released.

You can read them below:

MORE than €930,000 has been spent on commemorations and events for the one hundred year anniversary of the first sitting of Dáil Éireann this year.

The expenditure included €16,500 on VIP services at Dublin Airport, almost €20,000 in accommodation at two of Dublin’s finest hotels, €200 for a harpist, and just over €10,000 for 5,000 Dáil branded hats for the event.

Details of the €934,000 spend were released under FOI with the Oireachtas saying the Dáil anniversary had been one of the key commemorative events in the Decade of Centenaries programme.

As part of the celebrations, they invited speakers and chairpersons from all EU member state parliaments and from the United States.

In total, 31 “overseas parliamentarians” along with 44 support staff travelled to Ireland with €7,708 spent on “local transport costs” for car and bus hire.

An accommodation bill of just under €20,000 was run up at the five-star Westin Hotel (€13,030) and the four-star Davenport Hotel (€6,968), according to the records.

Another €16,567 was paid out for “fast track airport reception” and other VIP facilities at Dublin Airport.

Entertainment costs came to just over €9,000 with €200 spent on a harpist to entertain the visiting politicians and €8,898 on catering for a dinner hosted in Leinster House.

An itinerary for their trip shows how the visitors were taken on a tour of Trinity College to see the Book of Kells and the university’s famous library, and also to the Guinness Storehouse.

Another €228 was spent on “Irish confectionary” with a further €228 paid out for photography costs, the records say.

The Oireachtas said significant costs had been incurred in “dressing the round room” of the Mansion House to make it historically authentic for the centenary events.

Six days of venue rental cost €29,970 with another €30,247 spent on lighting for TV production. There was a further €33,000 spent on production design and €17,152 for “room dressing”.

Furniture hire cost €5,250 while music composition, arranging, and music rights cost just under €11,000.

One thousand bound commemorative booklets were also produced for the event with each of them costing €13.50. Another €3,240 was spent on photography while €1,885 was paid out for design of invitations, running order, and booklets.

A total of €35,000 was spent on Dáil 100 merchandise, which included 15,000 tote bags, 5,000 hats, 15,000 pens, 4,000 commemorative pins, and 10,000 badges.

Catering costs, which included public engagement days, a press gallery dinner, a staff reception, and meals for those working, came to €22,742.

As part of the “public engagement experience” that ran as part of the event, €22,000 was paid out to actors for their part in a theatrical performance of centenary-related events.

Another €1,959 was paid out for a fabric pop-up photo booth, while €10,409 was spent on a photography exhibition.

One of the largest projects was the digitisation of historical records, which was done in conjunction with the National Archives, and cost €37,400.

The Oireachtas said there had also been an estimated cost of €15,000 for historian services but that a final invoice was still awaited.

Extra staff costs came to €40,900, according to records with 96 staff brought in for cleaning, usher, and “meet and greet” duties over the course of the events.

A specially designed website was also set up for the commemorations with history articles, photographs, and historic records made available online.

The design cost for the dail100.ie page was €33,075 with another €152,478 spent on the “build cost”.

The Oireachtas said the commemoration had been staged “to give a full and proper context to the formation of the First Dáil as one of the key events in our history as a state”.

They said: “The programme runs all year and includes events from the Centenary sitting in January to the Dáil na nÓg event in November 2019.”

Costs involved in the fit out of the Mansion House were significant because “as a venue, it required a great deal of professional work and services to create the look and feel appropriate to the historic nature of the Centenary occasion”.

They said arrangements for parliamentarians from other counties were “in keeping with normal hospitality” and that additional staff costs covered ten days of duties for civil servants, cleaners, ushers, service officers and catering”.

A statement said: “Some of the expenditure incurred is for products and services which will be used throughout the year such as … merchandise for students and other visitors to Leinster House.”

STAFF from Met Éireann have been advised not to talk “despair” over climate change and use positive language to show people they can make a difference.

An internal communique says using words like “inevitable” could create a feeling that nothing can be done and lead to “inaction” from the public.

The advice is contained in a brand new set of guidelines for Met Éireann staff that issued in January and which was released under FOI.

It suggests: “We can discuss the choice we face between a future with more climate change and larger increases in extreme weather, and one with less. The future is in our hands.”

Met Éireann said the new advice came in response to increased queries about weather and the human influence in climate change.

It suggested using metaphors like “the weather on steroids” or how global warming was “stacking the deck” towards more and more extreme weather events.

The advisory said a member of staff could say something like: “Heat-trapping gases act like steroids in the climate system, increasing the odds of extreme heat, heavy downpours, and some other types of extreme events.”

They said this would communicate that while extreme events do occur naturally, they were now happening more frequently and more intensely.

It explained how staff could also say that global warming was “loading the dice towards more rolls of extreme events”.

The document explained how a large number of studies showed that “human induced global warming” had increased the likelihood of extreme weather events across the planet.

They said that if Ireland experiences a drought or heatwave, as happened last summer, it was correct to point to the increase of such events due to human activities.

It said: “The answer to the question ‘Is this event due to climate change?’ can be framed as ‘events of this type have been made more likely by climate change’.”

They also said it was no longer appropriate to say that a severe weather event was categorically not linked to climate change.

Instead, staff were advised to say these things were “more than likely part of the trend of increasing extreme events”.

The guidance also said to talk about what was known and be careful of talking about “uncertainties” and “caveats”.

One suggestion was to say something like: “Global warming made this heat wave at least four times more likely to occur, or increased the odds of this event by 400%.”

It said it was important to be clear that climate change was “happening now, and is human-caused” even if there was no certainty over blaming it for a particular event.

The guidance also suggested they “reframe poorly posed questions”.

It explained: “Scientists being interviewed are often asked, ‘Did climate change cause this event?’ Reasons for asking such a question can relate to liability, context, planning and more.

“However, it remains a poorly posed question, with no simple yes or no answer, due to the multiple factors involved in all events.”

Staff were advised to turn these questions on their head and identify particular events that were very unlikely to have happened in the absence of human-caused climate change.

Met Éireann workers were also cautioned about using certain scientific terminology that might meet one thing professionally and another to the general public.

It said the word “uncertainty” had a particular meaning for scientists to discuss a range of scenarios or model results.

However, for the public, “’uncertainty’ means we just don’t know” and it would be better to talk about ranges of outcomes instead.

Scientists also sometimes use the phrase “low confidence” for data or modelling but that it didn’t mean there was no trend or projected change as the public might assume.

A statement from Met Éireann said: ‘Staff [here] receive a lot of queries from the media in relation to the weather and climate change.

“This communication was issued to help them effectively communicate the role of climate change in influencing a weather event.”

RYANAIR told the Department of Finance it might have to move its operations out of Ireland because of an anomaly that sees pilots and air crew taxed in two countries.

The warning was included in a submission prepared for Finance Minister Paschal Donohue who was told the low-fares airline would have to consider “the migration of Ryanair’s operations” out of Dublin.

Ryanair’s concerns hinge on the double taxation of pilots and aircrew, who are forced to pay income tax and USC in Ireland and social insurance in their country of residence.

Minister Paschal Donohoe was warned however, that rectifying the problem
could blow a €40 million hole in his plans for Budget 2019.

He opted to do nothing in last year’s budget while Ryanair have gone to court in an attempt to have the problem solved legally.

The aircrew are getting hit on the double because unlike Ireland where income tax rates are high, many EU states have much higher rates of social insurance [the equivalent of PRSI].

In four countries, Hungary, Italy, Poland, and Lithuania, non-Irish based crew have ending up with marginal rates of tax of over 65 percent.

In Romania, it’s even worse with pilots faced with a marginal rate of tax of 83 percent.

There, according to Ryanair figures, a pilot on €150,000 would get €39,000 after tax although it would be possible to later claim relief on the double payments.

A Department of Finance submission said Ryanair, along with Cityjet and Norwegian Air, were affected by the issue and faced a “significant commercial disadvantage”.

It said Ryanair – because of its size – was worst affected with difficulties in competing to recruit pilots against other unaffected airlines.

The submission said: “Ryanair has stated that in the absence of a viable solution … it will be forced to consider alternative operating structures in order to sustain existing operations and the employment of non-Irish resident aircrew.

“This would include the migration of Ryanair’s operations from Ireland.”
It suggested that it was possible the airline – one of the world’s biggest – would look at moving management and “control of relevant sections” to Italy.

This would mean that corporation tax from that part of Ryanair’s business would in future be paid in Italy and lost to Ireland.

However, the cost of rectifying the double taxation anomaly was also very steep, according to the internal memorandum.

Figures provided by Ryanair suggested that €35 million a year in tax revenue could be affected by a change with an estimate of €5 million more for the other airlines involved.

It said that a change to the rules would have “immediate implications for fiscal space available” and would leave a major gap in the public finances.
The submission suggested that Minister Donohoe could “do nothing for the present” and reassess during 2019.

It said any proposed move by Ryanair to another jurisdiction would be complicated by higher rates of corporation tax in other countries.

The submission concluded: “Further sustained representations from Ryanair in particular or other measures from the company in support of its case may be expected.”

In a hand-written note, Mr Donohoe recognised that he was caught in something of a catch-22.

He wrote: “So if I amend [legislation] the Exchequer stands to lose €40 million. On the other hand if I don’t amend, there is a risk of operation movement out of Ireland with a separate tax economic loss.”

He said his “current assessment” was to hold off on doing anything and that they would give “this matter serious consideration”.

In a later submission, he confirmed he would not be making any changes for Budget 2019.

Ironically, the tax anomaly came about because Ryanair had themselves raised concerns that some pilots were in the past able to benefit from “double non-taxation”.

They had approached the Department of Finance in 2010 saying they had become aware that it was possible for employees outside the state to get tax rebates from Ireland.

The submission explained: “Ryanair had become aware that certain employees resident outside the State had lodged claims for, and received, repayment of PAYE income tax deductions from their salaries in respect of employment duties exercised outside the state.”

It said that this had allowed for “double non-taxation” to take place. The submission said: “The matter was brought to your predecessor’s attention by Ryanair who sought the change at the time.”

In a statement, the Department of Finance said Ryanair had lodged a legal challenge to the measure in the High Court in November of last year.

“As this matter is the subject of on-going legal proceedings, we will not be commenting further,” they said.

Ryanair did not respond to a request for comment.

* Quick update on this case. It had been due to start today but has now been postponed until mid-July. We will keep you posted.

The High Court will begin hearing a challenge on February 14 brought by Right to Know against a decision of the Commissioner for Environmental Information to refuse access to an IBEC submission to the Minister for Transport outlining the business lobbyist’s priorities for transport investment and renewable energy measures.

The submission, which was disclosed on the lobbying register, was aimed at convincing Minister Shane Ross to increase transport investment, upgrade road infrastructure, invest in renewable fuel infrastructure, and improve commuter access to Dublin Airport.

In March 2017, Right to Know made a request to the Minister for Transport for a copy of the submission under the Access to Information on the Environment Regulations. The request was ultimately refused and this decision was affirmed by the Commissioner for Environmental Information who said that the submission didn’t contain any substantive content on the transport measures at issue and therefore wasn’t accessible under environmental transparency legislation.

Right to Know brings this challenge because lobbying is an activity which by definition is designed to affect the environment, in this case by increasing investment in transport including road upgrades. In its challenge, it argues that the Commissioner applied the wrong legal test and took too narrow a view of the scope of information that could be accessed by the public.

Gavin Sheridan, managing director of Right to Know, said: “A submission on transport policy by Ireland’s most powerful lobby group is clearly information that the public should have access to. When big business tells a minister their priorities in environmental matters, the public has a right to see what those priorities are.

“It is not for the Commissioner to restrict the information that can be accessed about environmental lobbying. The law says that any information on an activity intended to affect the environment should be accessible to the public irrespective of its content. Often, it is as much about what is not said. For example, the public has a right to know if they agree with IBEC’s priorities. Does IBEC list walking and cycling on its priority list? Are the priorities focussed on road transport or other unsustainable measures? There are strong public interest reasons to have the widest possible transparency over lobbying on environmental matters.”

Mr Sheridan added: “The Commissioner for Environmental Information cannot second-guess how the public will interpret lobbying submissions. His job is to check whether the lobbying can affect the environment. If it can, then he has to ensure the greatest possible transparency in respect of that lobbying.”

Right to Know is taking this challenge in the public interest to make sure that the public has the widest possible access to environmental information. Right to Know is represented by FP Logue Solicitors and barrister David Browne BL.

You can read the original decision here: https://www.ocei.ie/decisions/right-to-know-clg-and-the/

THE government claimed to be under pressure to curb citizenship rights for Irish-born children because of concerns over international terrorism, newly released Cabinet records have revealed.

In 2004, the government held a referendum to end automatic citizenship rights to anyone born in Ireland, a decision that has grown increasingly controversial in recent months.

Cabinet records from the time now explain the precise thinking behind the referendum with the Department of Justice saying it would ease “strains” on hospitals and improve availability of services for “legal residents”.

A secret nine-page memorandum for government said granting citizenship to anybody born in Ireland irrespective of where their parents came from was “unique in the European Union, and unusual world-wide”.

It said it made Ireland an “attractive target destination” for anybody looking for residency in the EU.

The memorandum – released following an FOI request – also said that in the aftermath of the 9/11 attacks, Ireland’s law on citizenship for Irish-born kids were a major risk.

It said: “There are serious concerns that Ireland’s unique situation among EU member states in regard to citizenship could have serious implications for the integrity of our own immigration controls and for national and international security.

“[This] could make Ireland a target destination for those wishing, for whatever reason, to secure residence within the EU.”

In one section, the memo said the Department wanted to “eliminate” the attractiveness of Ireland for migrants.

It said that becoming a parent of an Irish-born child attracts “greater entitlements” than anywhere else in the European Union.

“This will inevitably remain an attraction for non-nationals to come to Ireland to give birth, placing strains on our hospital services, attracting illegal immigration and creating long-term commitments for the State,” it said.

“The Minister [it was then Michael McDowell] is of the view that this attraction must now be eliminated.”

The secret memorandum said that the issue would be better dealt with by a referendum and that any costs involved in holding a national vote were dwarfed by the money being spent on the asylum system.

It said: “The Minister is aware of the huge annual expenditure, currently over €340m, committed by the State to processing of asylum claims and the maintenance of asylum seekers in the State.

“He is especially concerned at the ongoing costs across the State system and in particular, the continuing impact on the health sector.”

The document said pressures were particularly acute in maternity hospitals from people arriving late in pregnancy and that there would be savings in the “short, medium and long term”.

As part of the decision making process, the memorandum had to address what impact would be had on women, employment, cross-border relations, and people in poverty.

It said there had been claims that “non-national women” were being pressurised to give birth in Ireland and that the changes could “alleviate that situation”.

The memo said the change would have no impact on employment and that it could actually help people in poverty.

“The effect of these proposals will reduce the attraction for illegal migration and thereby reduce the number of non-nationals benefiting from State services including accommodation and health services,” it said.

“This will release resources and improve the availability of services to legal residents in the State.”

The referendum has come into renewed focus over recent months as some of the children born in Ireland around the time have faced deportation.

In one high-profile case, Eric Zhi Ying Xue – a nine-year-old from Bray, Co Wicklow – faced removal from the state despite having been here for his entire life.

His case was taken on by Health Minister Simon Harris who said: “The idea that a nine-year-old boy who is as much from Wicklow as I am … would be told that he is ‘going back’ to China, a country he had never been to, was simply ludicrous.”

Asked whether they were considering an amnesty for any of those affected by the citizenship referendum, the Department of Justice said that the EU had said cases would be dealt with on a case-by-case approach as opposed to any “mass regularisation”.

They said that after the 2004 referendum, an Irish Born Child Scheme had been established that allowed 17,000 people to regularise their status in Ireland, based on being parent of an Irish-born child.

They said: “Since 2010, approximately 27,000 children have been granted Irish citizenship through the naturalisation process, the vast majority of whom were born to non-EEA nationals.”

A selection of submissions for Finance Minister Paschal Donohoe ahead of Budget 2018:

Among the most interesting parts:

* The minister was told the “opportune time” had arrived to double betting tax amid ongoing pressure to increase tax on gambling.

Mr Donohoe doubled the rate from one to two percent in this year’s budget and was afterwards met with fierce opposition from the bookmaking industry.

His officials had warned that alternative proposals to tax punters directly or the profits of bookmakers would not be possible this year.

* Minister Donohoe also considered giving a reprieve to smokers in the Budget after seven consecutive years of excise duty increase.

Asked for his views on a tax rise for tobacco, the minister had written: “Not currently minded to implement a further increase.”

However, cigarettes did ultimately take another hit in Budget 2019 with a 50 cent rise in the price of a box of twenty cigarettes and similar rises for other tobacco products.

* For alcohol products, Minister Donohoe heeded the advice of officials who warned Brexit and cross-border shopping could counteract any tax increase.

“I am currently minded to make no changes,” said the minister. “Will review in final days before Budget.”

Officials said there was now a “significant price differential” between how much was paid for booze in Dublin and offers available north of the border in Newry.

* The Department of Finance were forced to play whack-a-mole with wealthy tax avoiders after a new scheme for dodging inheritance tax was uncovered.

Two years ago, the Department shut down a loophole where high-wealth individuals used an exemption to transfer properties tax-free to their children.

However, the Revenue Commissioners have now discovered that a new system was being used for inheriting valuable houses without having to pay any tax.

Those involved used what are known as ‘discretionary trusts’, a system usually set up to manage a person’s assets on behalf of their children.

You can read more in the documents themselves:

THE Department of Finance was worried it couldn’t even publish an anonymised list of pensions for former ministers and officeholders because it would be too easy to identify them.

Each year, the Department had printed a list of former taoisigh, ministers, presidents, along with other ex-officeholders and how much they received in their annual pension.

However, the 2017 list was never published due to concerns over data protection and that even an anonymous list could create a breach.

Internal emails reveal how concerns were first raised early in the summer after their ongoing publication was raised at a GDPR meeting.

The pension details always “attract great media interest”, one email said.

“At a recent GDPR course it was suggested that we shouldn’t actually be doing this as we would be releasing the name and gross amount paid and in breach of GDPR,” wrote an official.

Consideration was given to whether some other form of publishing, either anonymously or in aggregate for groups like former Taoisigh, ministers, presidents, or other officeholders.

In a later email, the Department of Finance data protection officer Colm O’Neill said: “Appreciate if we could have a chat about this publication given that it identifies individuals – I’m not aware of any legal basis for processing this personal data.

“Even if the names of the individuals were anonymised, it wouldn’t be that difficult to identify the former office holders if compared with last year’s publication.”

Mr O’Neill said that the Department of Finance were not even the controller of the pension data and were taking it from their sister department the Department of Public Expenditure.

Discussion between officials also raised the possibility that figures for previous years – which remain on the department website – might have to be deleted too.

In one email, an official said: “My initial view would be that unless someone can identify a lawful basis to publish the data, it shouldn’t be published and anything up already should be removed.”

In later correspondence, the Department said that the introduction of GDPR [the General Data Protection Regulations] in May had changed things dramatically.

“What applied before 25 May and what applies now are two very different things,” said an email.

As the deadline for publishing the Department’s Finance Accounts for 2017 approached in late July, the Department were still unsure what to do about the pension figures.

However, on July 27, it was confirmed that the figures – which had been available online dating back to 2009 – would not be made public.

An email said the information constituted “personal data” and that the ex-politicians and officeholders involved should not be made identifiable in this way.

A message from Helen Codd, the data protection officer of the Department of Public Expenditure, said their legal advice was that publication had to be halted.

“I … would appreciate if the practice of issuing this material with the Finance Accounts as a matter of routine ceases with immediate effect,” she wrote.

The email explained that if the material was subsequently sought under FOI, it would be dealt with “appropriately at that time”.

In a statement, the Department of Public Expenditure said: “Due to the implementation of the General Data Protection Regulations it is our view that the data referenced … [can] no longer be published.”

The Department of Finance said the pension figures were not held by them and it was not for them to release.

FINANCE Minister Paschal Donohoe was on the verge of sanctioning a €10 increase in carbon tax only for a later change of mind, departmental documents show.

A pre-budget submission for Mr Donohoe prepared by his officials reveal that the minister had been preparing to sign off on the tax hike in advance of Budget 2019.

However, the increase never went ahead amid fears over Brexit and how higher costs would impact on people who did not have options to choose renewable or cleaner energy sources.

A copy of the submission includes a note from Mr Donohoe, who wrote: “I am currently minded to implement a €10 increase on Budget Day.”

The €10 increase would have raised around €210 million in Exchequer funding had it proceeded according to the document.

In an executive summary, civil servants told Mr Donohoe that increasing the tax rate would support climate change policy and “send a signal” to the public about government policy.

“In order to meet climate change targets, which currently appears difficult,” it said, “there have been calls for a long term strategy to increase the carbon tax rate to €80 (per tonne CO2) by 2030. The current rate of €20 has been in place since 2012.”

The submission warned that the increase might “disproportionately” hit low income households who were already at risk of fuel poverty.

It also said that businesses with particularly large energy spends would also be hit.

To try and minimise the impact, it was suggested that the Department could increase the rate paid as part of the National Fuel Scheme, an allowance paid for fuel purchases for social welfare recipients and others.

Separately, changes to the diesel rebate scheme could also be used to reduce the impact on hauliers and bus operators.

The submission painted a bleak picture of how Ireland was doing in meeting its climate change targets saying that emissions had actually increased in a number of areas in recent years, including transport and residential homes.

However, it said even advocates for carbon tax accepted that increases could hurt households that were most at risk of “fuel poverty”.

“Households dependent on more carbon intensive fuels such as oil and solid fuels are more likely to experience fuel poverty,” it said.

The submission also said there were “cross border” risks associated with increasing carbon tax particularly if the UK did not follow suit or “sterling continues to weaken”.

It said that so-called “fuel tourism” where motorists cross the border to buy petrol and diesel was a double-edged sword. While one study found drivers from Northern Ireland had helped generate €230 million in transport taxes in the south, this had added 2% to the Republic’s annual greenhouse gas emission levels.

Fuel prices were more or less the same on both sides of the border at the time of the submission.

A greater problem was that significantly higher taxes on solid fuels in the South meant that there was ongoing problems with the “illicit sale of solid fuels”.

“This includes high sulphur coal, which is damaging to public health, jeopardises legitimate business in the South as well as depriving the Exchequer of Revenue,” it said.

The submission also explained how the impact of increased carbon tax would have dramatically different impacts on different households.

This would depend on the BER rating of homes, whether they were on the gas network, and the availability of public transport with rural areas much more likely to be hit hard.

In a statement, the Department said that Brexit had been a key factor in the minister’s change of heart on increasing carbon tax in the budget.

They said: “While some households are in a good positon to reduce their carbon footprints, others may not have such choices available to them, at least not yet.

“Ireland has relatively high fuel tax rates in OECD terms. At current prices, total fuel taxes (including the NORA [oil reserve] levy) is about 60 percent of the retail price on a litre of petrol and 54 percent on a litre of diesel.”

The Department also said fuel prices had increased significantly over the past year, with diesel and petrol prices both up by over 10 percent.