Two problems with the Banking Inquiry report

I’ve been thankfully out of the country for the launch of the Bank Inquiry report, and am only now catching up with the report itself, and the analysis from the media. It’s interesting to watch it from afar – it adds a sense of perspective to the entire exercise.

My conclusion is what it was back when the inquiry began – it is a futile and worthless exercise. But rather than get bogged down in an analysis of this point, let’s focus on just two main conclusions the inquiry reached:

1) The guarantee didn’t just happen the night of the guarantee, it was considered as an option in early 2008.

2) The ECB bounced Ireland into a bailout.

Our analysis would be this: tell us something we didn’t already know.

Back in July 2010 the Oireachtas had its last sitting day on July 8. A week later on July 15 the Public Accounts Committee published a series of documents related to the guarantee. It’s a time when people are winding down for the holidays, including journalists. We noticed the documents, read them, and re-published them the next day on July 16, 2010. We then published an OCRd, consolidated and annotated version on January 19, 2011.

The documents contained a series of important presentations and minutes, including those of the Domestic Standing Group (DSG), setup in 2007 to deal with the global financial crisis. They also included options that were discussed in relation to guaranteeing the banks. These documents were hugely significant and I talked about it again and again, tweeted about it for the best part of a year, and also mentioned it several times the odd time I was on Tonight with Vincent Browne.

So the facts of the guarantee not being an overnight decision was known more than five years ago. There’s nothing new to see here. Yet somehow the inquiry presents it as new. Indeed, by page 15 of the report, they boast:

Findings of the Joint Committee

1. The option of guaranteeing the banks did not arise for the first time on the night of the guarantee meeting on 29 September 2008. The option of introducing a guarantee was first formally noted in January 2008, again in February 2008 and again in June 2008.

No shit. The documents were posted on the PAC website in July 2010. By the time the Dail got back in September, we were on our way to a bailout. But not alone that, the inquiry chair Ciaran Lynch is at pains in his opening statement to point out how the inquiry discovered this:

The “night of the guarantee” has become a thing of myth. The idea of a guarantee was not conceived on a single Monday night in September 2008; Department of Finance documents show that it was considered as part of a range of options as early as January 2008. Decision-makers, however, were forced to decide on a course of action in the absence of accurate information about the underlying health of financial institutions; no independent in-depth ‘deep dive’ investigation of the banks had been commissioned by the authorities before September 2008

But again tell us something we don’t already know. In fact we annotated the entire document five years ago this month, including this bit from early 2008:

And this bit:

I could go on. Even more oddly the press this week have pointed to the guarantee story as an example of how the inquiry succeeded in its work and even presented some of the findings as news. But we’ve known this for more than five years.

Then there’s the ECB threat.

Regular readers of this blog will recall that we were the ones who put simultaneous FOI requests into the the Department of Finance and to the ECB seeking the Trichet letters. We then went through lengthy appeals processes through both regimes – the DoF one ultimately failed following a ruling by then Information Commissioner Emily O’Reilly, as did the same appeal to the European Ombudsman (who shortly thereafter was also Emily O’Reilly).

It was the pressure exerted by our appeals, and then by Ms O’Reilly pressuring the ECB President Mario Draghi – that ultimately led to the Trichet letters being released to the public in November 2014 (though the Department of Finance chose to leak the letters the day before to the Irish Times). Had the Department not already known that the ECB were going to release the letters, it’s very unlikely they would have been leaked at all. So we knew that Trichet threatened us – how did the Banking Inquiry at all help us reach this conclusion?

So what did we learn from the Banking Inquiry?

Not much.

What’s wrong with Ireland?

This is an analysis piece I wrote on March 15 for the Sunday Business Post to go with a story around a PWC report in late 2008 that analysed the loan books of Irish banks:

It’s now more than six years since Ireland made a decision which would have devastating consequences on its people. Yet amazingly after so much time has passed, we still know relatively little about how the crisis came about, and who exactly was responsible.

Today the Sunday Business Post names names around tens of billions of euro lent to a very small but influential group of people during the property bubble.

These names and the exposures they had have, up until now, been rumoured or censored by the state. But citizens have a right to know who they effectively bailed out through guarantees, a bad bank and bailouts.

Whose interests has secrecy served? Certainly not the interests of citizens. And when consultants are hired by Government to find out some of what happened, why do only a small group of people see it, and then let it languish on a shelf thereafter? How many other reports will never see the light of day?

The Banking Inquiry only recently commenced hearing evidence. The process so far has been dismal. With so many members of the inquiry apparently needing their moment in the spotlight, it seems almost impossible for them to ask any probing questions at all. By the time a witness is beginning to say anything interesting, time is up and we move on to another set of often unrelated questions. It often feels like everyone is in a hurry to get the inquiry over with.

It’s also four years since Ireland requested a bailout, which was a direct consequence of the decision made two years earlier. Much of the media focus has been on that and on the guarantee decision itself – and while the circumstances around it are interesting to journalists, and often make for dramatic re-telling – it was not the guarantee decision that really sank the country.

It was the property bubble that preceded it that led us down that path in the first place.

And it is this issue we have yet to seriously tackle. Who benefitted from the largesse of cheap and easy money from the Irish banks? How did so much of the loan books of the banks end up with such a small group of people? In a country this small, how connected are those people to the people who were in power from 1997 to 2011?

What politicians, and civil servants, were responsible for pouring fuel on the fire of an out of control property bubble – the people who made the policy decisions both around property development and banking regulation? How close were bankers to politicians, and in what way? How close were property developers to politicians, and what policy decisions made in their favour?

But if there’s one thing that stands out in efforts to understand the crisis it is this: secrecy.

And this is not just secrecy in Ireland. Between 2011 and 2014 I along with a legal friend, Fred Logue, spent considerable time and effort trying to obtain the so-called Trichet letter, sent to then Finance Minister in November 2010, in which ECB President Jean-Claude Trichet threatened Ireland with consequences if we did not do as we were told.

The letter was ultimately released by the ECB (and leaked to the Irish Times in advance), but only after two appeals processes lasting three years, lengthy submissions as to why it should be released in the public interest, and the intervention of the European Ombudsman to plead with current ECB President Mario Draghi to facilitate its release.

This was not an exercise by the ECB in using transparency to gain public trust, it was an exercise of being embarrassed into it. Not alone that, but the letter in which Lenihan formally sought the bailout was released without issue by the ECB, but its release was categorically refused by the Department of Finance – perhaps they were just too embarrassed by the whole thing – or else it’s that culture of secrecy.

And Ireland is by its nature a secretive country. And secrecy breeds corruption, maladministration and incompetence. We talk endlessly about transparency and accountability, but we very rarely see it. It makes for good sound bites, but countless government, tribunal or consultant reports gathering dust on shelves are testament to our complete inability to act.

If we are to learn anything from the crisis, we must begin throwing up the doors on the past immediately. This must include the public understanding and having copies of every report generated as a result of the crisis, and every document surrounding the decisions made by Cabinet over the preceding decade.

We are the ones paying for the consequences of decisions made at the highest levels of Government, the least we can ask for is why – and for whose benefit – those decisions were made. It is time that the unvarnished truth is allowed to emerge.

On Howlin, FOI reform and facts

We were very interested to read a blog post/speech by Public Expenditure & Reform Minister Brendan Howlin yesterday. It contains some very curious statements, and we assume the blog post was not actually written by Howlin (we’d be happy to find out), but rather by recently appointed press officer(s).

The post refers indirectly to this blog and to me, somewhat unflatteringly.

Indeed, on This Week on RTE Radio at the end of last year, two prominent FOI experts essentially found nothing positive to say about the new Freedom of Information Act in the course of an extended discussion on the Act.

Of course, a propensity to criticise often seems inherent in such opinion formers – given the perfectly understandable need to continue to sustain and promote their causes.

I don’t think anyone in political life – certainly no-one in political life for the length of time I have – would expect plaudits to replace the usual brickbats on such a contentious issue as FOI.

Anyways I’ll keep this brief. But before you start, keep this in mind: In 2011 after coming to power, the Government promised to restore the FOI Act – this would mean abolishing FOI fees altogether. This promise was and is broken. Appeal fees remain.

Anyways: the claim in the speech is centred on this statement:

“…what is disappointing is the degree to which the real story at the heart of the FOI reforms is at risk of being lost… This is a story which even in broad brush strokes exemplifies real democratic reform in action:-“

To which we say: rubbish. Let’s take each point in turn:

Claim 1.The publication of the Government’s policy proposals for consultation and pre-legislative scrutiny which allowed a broad range of stakeholders feed in their views on how the legislation could be strengthened which were an important influence on the subsequent drafting of the Bill.

1. We were one of the stakeholders. We made submissions to the Oireachtas committee, in writing and in person. We also attended some of the hearings, or livetweeted the proceedings. In general the process was pointless. Civil society people came in, submissions were made, the committee wrote a report. I can’t see much of what the committee recommended (and in some places it contradicted itself) actually made it into the Bill. Of course I’d be happy if someone could point this out to me.

Claim 2: The very positive and constructive debate in the Oireachtas largely on a non-partisan and cross-party basis on the detailed provisions of the legislation and the important amendments that flowed from this examination of the Bill.

2. Again. I can’t see much that happened here either. Can you point us to some good examples? The most controversial elements of the Bill – the definition of data, the retention of fees, the definition of public authority, were kept the same throughout.

Claim 3: The establishment of an expert external group involving FOI advocates and FOI experts to advise on the practical measures to improve the operation of our FOI regime. The subsequent Code of Practice for FOI for public bodies drew heavily on this group’s recommendations.

Yea, we were on that external group too. We chatted several times and wrote a report (we didn’t ask for, get or want any money for this work). Whether the actual Code of Practice will be implemented remains to be seen.

Claim 4: The engagement with civil society representatives through the Open Government Partnership (OGP) process on the case for change in relation to fees and the concrete result which followed.

This is an interesting claim and one that requires more explanation.

It glosses over how the fee issue became an issue at all. That an amendment to increase fees was inserted in November 2013 at committee stage, that it was never mentioned for the previous 18 months despite the Department carrying out a survey on the issue in 2012, that it did not appear in the draft heads of bill or in the Bill itself (making a complete mockery of all the vaunted pre-legislative scrutiny processes mentioned earlier). Or that over 3 days that Department and the Minister were ridiculed by civil society (including us) for relying on a) faulty research to justify fees b) subjected to criticism by several international NGOs c) that the premise for fees being retained was false and d) that the fees were probably illegal. And that the Minister was then forced through sheer embarrassment to withdraw the amendment.

No doubt the Department felt that this amendment could be simply added, and it wouldn’t be noticed. The insertion of that amendment paints a truer picture of the real intentions of mandarins than any press statement or speech by Howlin ever could.

That the Government spent 3 days putting out erroneous (if not outright bogus) press statements, and where Ministers, including the Taoiseach, ridiculed us as essentially “crazies” for attacking the increase in fees also represents a more accurate picture of how this really happened.

Is this an example of “real democratic reform in action”, as Howlin claims?

If you count broken promises and underhanded tactics to undermine the Bill entirely by increasing fees, and then u-turning on that issue when it becomes politically difficult, then yes, it is a perfect example of democratic reform in action.

When is a record held under the Freedom of Information Act?

This post is cross posted from my information rights blog.

When is a record held for the purposes of the Freedom of Information Acts 1998 and 2003? That was the question the High Court had to answer in a recent decision of O’Neill J in The Minster for Health -v- The Information Commissioner [2014] IEHC 231.

In his interpretation of which records are held for the purposes of the FOIA O’Neill J adopted a novel definition:

41. In my opinion, for a document to be “held” within the meaning of s. 6(1) of the 1997 Act, it must be either lawfully created by the public body in question or lawfully provided to that public body or lawfully obtained by the public body, in connection with the functions or business of that public body and the document must not be subject to any prior legal prohibition affecting it’s disclosure.

The issue arose in the context of a non-statutory inquiry into practices and procedures at Our Lady of Lourdes Hospital, Drogheda during the period from 1964 to 1995 to protect patients from sexual abuse and to deal with allegations of sexual abuse against Mr Michael Shine. Non-statutory inquiries such as this are often used as a way to scope more formal statutory inquiries under, for example, the Commissions of Investigation Act 2004.

This decision is important since it reveals flaws, at least in this instance, in the way non-statutory inquiries are constituted and a lack of certainty in relation to who controls the documents generated by them. From an information rights point of view the Court adopted a surprisingly restrictive interpretation of the meaning of the word “held” for the purposes of the FOIA arguably placing a large category of records permanently outside the scope of FOI.

The inquiry, known as the Drogheda Review, was conducted by retired High Court judge Thomas C Smyth who was appointed by the Minister for Health on 18 December 2009. In the course of the inquiry Mr Smyth commissioned transcripts of interviews he conducted with a number of individuals. Upon completion of his work Mr Smyth returned several boxes of documents to the Department of Health, including six sealed boxes of documents containing the transcripts of interviews conducted during the inquiry.

These boxes were accompanied by written instructions from Mr Smyth that they should not be opened or disclosed except under a court order on the basis that the information was provided in confidence to the inquiry, Mr Smyth being satisfied that many of the individuals would not have participated in the absence of such an assurance.

In May 2012 one of the individuals who was interviewed by Mr Smyth made a request under FOIA for access to the transcript of his interview.

His request was refused on the basis that the document in question was not under the control of the Department which merely held them on behalf of Mr Smyth for safe keeping. The matter was referred to the Information Commissioner who disagreed and found that the Department held the document and ordered it to deal with the individual’s request.

Under section 6(1) FOIA the public has a right of access to any record held by a public body. Bearing in mind that public bodies may not possess all relevant records, section 2(5) explicitly states that documents controlled by a public body are held and further according to section 6(9) where a person performs a contract for service for a public body records relevant to the contract are deemed to be held by the public body with a contractual obligation implied into the contract obliging the contractor to provide the records to the public body if requested.

While the Information Commissioner argued that mere possession was sufficient to trigger the act – O Neill J adopted a rather different and somewhat novel approach to the issue which depended on the nature of Mr Smyth’s role as independent reviewer and the legal basis for his appointment.

O Neill J emphasised that Mr Smyth was entirely independent in his conduct of the inquiry and despite being paid a fee and performing tasks assigned to him he could not be said to be performing a contract for services since if he was then the FOIA would apply to the inquiry documents, a situation wholly inconsistent with his independence:

49. It is easy to say what the relationship between Mr. Justice Smyth and the Department was not, and in that respect, I am quite satisfied that whilst in a general sense, it could be said that Mr. Justice Smyth was providing a service in consideration of the payment of an agreed fee, the provision of this service cannot be considered as falling within the terms of s. 6(9) because the application of s. 6(9) in the circumstances would be wholly inconsistent with the independent nature of the function discharged by Mr. Justice Smyth.

Despite this statement the Court did not reach a conclusion on the legal basis for Mr Smyth’s appointment. Although it was conceded he was neither an employee nor an agent of the Minister nor was he acting as an office-holder he could still not be considered a contractor under a contract for services.

The decision and its rationale represent a radical departure from what has, up to now, been a liberal definition of which records are held for the purposes of FOI consistent with a general presumption in favour of access to records.

Surprisingly although much was made of analogies with Irish and English approaches to access to documents through discovery, UK  information law jurisprudence was not canvassed in the judgment. This is all the more surprising given a similar set of facts arose in the case of Digby-Cameron -v- Information Commissioner (EA/2008/10) which was decided by the Information Tribunal and concerned a request by a father to access the transcript of a Coroner’s hearing into the death of his son.

The main UK case is British Union for the Abolition of Vivisection -v- The University of Newcastle [2011] UKUT 185 (ACC) where the Upper Tribunal endorsed a common sense approach to the definition of “held” proposed by the First Tier Tribunal at paragraph 23:

 ‘Hold’ is an ordinary English word. In our judgment it is not used in some technical sense in the Act. We do not consider that it is appropriate to define its meaning by reference to concepts such as legal possession or bailment, or by using phrases taken from court rules concerning the obligation to give disclosure of documents in litigation. Sophisticated legal analysis of its meaning is not required or appropriate. However, it is necessary to observe that ‘holding’ is not a purely physical concept, and it has to be understood with the purpose of the Act in mind. Section 3(2)(b) illustrates this: an authority cannot evade the requirements of the Act by having its information held on its behalf by some other person who is not a public authority. Conversely, we consider that s.1 would not apply merely because information is contained in a document that happens to be physically on the authority’s premises: there must be an appropriate connection between the information and the authority, so that it can be properly said that the information is held by the authority. For example, an employee of the authority may have his own personal information on a document in his pocket while at work, or in the drawer of his office desk: that does not mean that the information is held by the authority. A Government Minister might bring some constituency papers into his departmental office: that does not mean that his department holds the information contained in his constituency papers.”

Under UK law where a record is in the possession of a public body to any extent for its purposes it is subject to the FOIA even if it is holding it for someone else. Records will only fall outside FOI where they are held solely for someone else and for no purpose connected with a public body. The UK Information Commissioner has published some useful guidance and analysis.

It now seems that the Irish Courts have diverged from the United Kingdom’s “common sense” and “non technical” approach to the definition of “held” under FOI and at least in the case of non-statutory inquiries have adopted a restrictive inverted approach to the definition which may need to be resolved at some future date by the Supreme Court.

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, 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. 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 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.

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.

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.

International NGOs call on Ireland to #abolishFOIfees

Access Info Europe and the Centre For Law and Democracy have called on the Irish government to abolish FOI fees entirely. In an open letter written to Public Expenditure and Reform Minister Brendan Howlin, Helen Darbishire from Access Info and Toby Mendel from the Centre for Law and Demcoracy wrote:

Various arguments have been put forward to justify charging up-front fees simply for making requests, none of which can be justified by reference to either international standards or comparative law and practice. Charging up-front fees for information requests violates international standards. It is clearly unacceptable to charge people to exercise a fundamental right. This is reflected in the Council of Europe Convention on Access to Official Documents, which expressly prohibits up-front charges for requests (Article 7(1)). Indeed, the drafters of that Convention considered and specifically
rejected a request from Ireland to allow for such charges.

Furthermore, charging up-front fees is out of step with other countries. Ireland is the only country in Europe to have mandatory up front charges for all FOI requests. The only other country which permits such charges is Malta, but these are not routinely applied. Even counting Malta, only 5% of 39 European countries and 16 of 95 countries worldwide (17%) charge fees, something campaigners in many of these countries are working to abolish. The problem is exacerbated by the high level of the Irish fee which, at €15, is higher than the fee charged in any other country that we are aware of.

They continue:

International standards also govern the fees that may be charged for satisfying a request. The UN Human Rights Committee has indicated that in no circumstances may fees be charged which would “constitute an unreasonable impediment to access to information” (2011 General Comment on Article 19, para. 19). The Council of Europe Convention only permits a fee to be charged “for a copy of the official document, which should be reasonable and not exceed the actual costs of reproduction and delivery of the document” (Article 7(2)). In other words, only photocopying and postage charges are permitted.


Arguments justifying the charging of costs other than photocopying and postage charges are flawed on three grounds.

First, information held by public authorities belongs to the public, having been created with taxpayers’ money.

Second, the cost of responding to requests is heavily correlated with the efficiency of public bodies’ record management systems. It is not appropriate to pass this on to members of the public exercising their right to know, which effectively rewards poor record management practices.

Third, charging high fees exerts a significant chilling effect on making requests, and there are strong public interest arguments against this, due to the significant benefits which flow from transparency. These include enabling democratic public oversight over government activity, identifying inefficiency, waste and corruption, contributing to better decision- making, and fostering greater public participation in and ownership of development activities, all of which result in savings to government, even if this is hard to quantify. Opening up government information has also been shown to make an important contribution to economic growth in knowledge-based economies, based on entrepreneurial reuse of public data. There is also the importance in a democracy of the public knowing what its government is doing, something which it is impossible to put a price tag on.

Read the full letter here.

Rabbitte on FOI: "…the information we want you to have – at a price – act"

We understand that in the cut and thrust of politics and public relations, the next stage in this process will be to paint opponents as irrational, crazy people who don’t know what they’re talking about. Such is the PR cycle, and spin is an essential part of what government does. This is precisely what’s happening now.

This blog has long held the view that we believe only what politicians do, not what they say. This is because they often change their minds. We said when the new government was elected in March 2011 that we had some doubts about whether it would proceed with the changes to the FOI Act they promised. That promise included the removal of upfront FOI fees entirely.

Our cynicism was proven correct. The government reneged on that promise. Therefore it would be logical for us now not to believe a single word that Minister Howlin, or any other Minister says, in relation to FOI reform. Only believe what they do.

We also want to remind Minister Pat Rabbitte what he said ten years ago. This was the Pat Rabbitte in opposition, not the Pat Rabbitte in government. Here is what Rabbitte said in 2003 (emphasis ours):

I do not intend to go over that ground again in detail, but I want to pick up on one or two points in the Bill. One of those is the proposed up-front fee for making freedom of information requests, which was brushed off by colleagues on the Government benches as a minor matter. It is not a minor matter. It is abundantly clear that the fee is primarily intended to discourage requests being made in the first instance; that is the point of it. Moreover, it will also alter the practice of providing information outside the Act. There will now be an incentive to tell the citizen to submit a formal request and pay the fee, rather than simply [1442] releasing information which should be in the public domain anyway. The term “freedom of information” will be a hollow one. The Act should, perhaps, be renamed “the information we want you to have, at a price, Act”.

We entirely agree with his position.

So what’s changed? People often refer to the process of saying one thing in opposition, and the opposite when in government, as “going native”. The Minister has claimed decreased resources being a factor. But we’ve nailed that canard already when it comes to upfront fees, so what’s the real reason?

Your guess is as good as ours.

Abolish FOI fees now.