Cork City Council spends €50,000 on California trip

Cork City delegation with the San Francisco Board of Supervisors. Source: San Francisco – Cork Sister City Program Facebook page

A LOCAL authority spent almost €50,000 sending thirteen councillors and staff to California on a five-night “sister city” trip.

Continue reading “Cork City Council spends €50,000 on California trip”

Costs Report: How much Ireland pays to host foreign delegations

The Merrion Hotel on Mount Street Upper, Dublin, Ireland. Src: WikiCommons

A HOTEL suite costing €600-per-night, limousines that cost up to €400 an hour, and private performances of Ulysses and traditional music were among the costs billed to the taxpayer to entertain visiting foreign politicians.

Continue reading “Costs Report: How much Ireland pays to host foreign delegations”

Government warned Sugar Tax could hit low income families hardest, documents reveal

FINANCE minister Paschal Donohoe was warned that revenue from the introduction of a sugar tax would be unreliable and that the impact of its introduction would hit low income families hardest.

He was also told the tax could potentially be “subject to litigation” if it failed EU state aid rules and could cause administrative problems for Revenue in collecting it.

The new levy was subsequently approved by the EU Commission last month who said it did not involve state aid; it was then formally introduced on May 1.

Minister Donohoe was firmly behind plans for the tax, saying the only thing that stood in its way was if the same type of levy was not introduced in Britain and Northern Ireland.

In a note to civil servants, he said: “Yes we will do this … at a rate similar to the UK. Only thing that will stop this is it not happening in UK/NI. Please move ahead with it.”

His comments are contained in a ministerial submission on the sugar tax prepared ahead of Budget 2018. It has only been released now however following an FOI request.

Did the government promise to abolish upfront fees for FOI? Yes it did!

Did the government promise to abolish upfront fees for FOI?

This is an important question but one that seems to have generated confusion. For example:


If the government did promise to abolish upfront fees then its proposed amendment to the Freedom of Information Bill which seeks to maintain upfront fees and to increase fees for initial requests constitutes a complete about turn by the government and a clear breach of its promise to the public when it was elected in 2011.

It is worth recalling that before 2003 upfront fees were not charged for initial FOI requests, internal appeals or for appeals to the Information Commissioner. In 2003, however, the FF/PD administration introduced upfront fees by inserting Section 47(6A) into the Freedom of Information Act. At the time this was considered to represent a significant undermining of the effectiveness of the Freedom of Information regime in Ireland. The Information Commissioner herself pointed out that the introduction of upfront fees led to a significant drop in requests and appeals, particularly from journalists.

So what did the government actually promise in relation to FOI upfront fees?

The programme for government states the following (page 19 emphasis added):

We will radically overhaul the way Irish politics and Government work. The failures of the political system over the past decade were a key contributor to the financial crisis and the system
must now learn those lessons urgently.

Government is too centralised and unaccountable. We believe that there must also be a real shift in power from the State to the citizen.

We will legislate on the issue of cabinet confidentiality.

We will legislate to restore the Freedom of Information Act to what it was before it was underined by the outgoing Government, and we will extend its remit to other public bodies including the administrative side of the Garda Síochána, subject to security exceptions.

We will extend Freedom of Information, and the Ombudsman Act, to ensure that all statutory bodies, and all bodies significantly funded from the public purse, are covered.

So the government promised to restore the FOI Act to what it was before the 2003 amendment. This could not be clearer. It is impossible to read this other than a promise and a commitment by the Irish government to  undo the amendments made in 2003 including the amendment whichh inserted Section 47(6A) and introduced upfront fees for the first time.

It doesn’t matter that we are constrained economically – we were similarly constrained in 2011 when the program for government was published. Similarly it doesn’t matter that the upfront fee is only a small fraction of the costs of FOI administration or that it violates the newly discovered principle of one issue – one fee. The government made an unqualified promise to the people and it should stick to it.


First protective costs order under Aarhus Convention granted by High Court

Hedigan J granted a protective costs order to an applicant wishing to use Section 160 of the Planning and Development Act to prevent alleged unauthorised development at a waste facility close to her home.

Protective costs orders originate from Article 9 of the Aarhus Convention which provides that litigation in certain environmental matters should not be prohibitively expensive. This provision was implemented in Ireland through Part 2 of the Environment (Miscellaneous Provisions) Act 2011 which protects an applicant from having costs awarded against them should they be unsuccessful.

This is the first time in Ireland that such an application has been successful and importantly the Court clarified the information that should be provided to ground a motion for a protective costs order.

The Court referred specifically to Article 9 of the Aarhus Convention as well as the recent ECJ judgment in Edwards -v- Environment Agency (Case C-260/11) which clarified the meaning of prohibitively expensive under European law.

This judgment is significant not just in terms of planning law but also for access to environmental information law since persons appealing to the High Court against decisions of the Commissioner for Environmental Information may also apply for protective costs orders.

Hunter -v- Nurendale Limited t/a Panda Waste

Swords -v- OCEI: Was there ever any doubt over search and retrieval charges for AIE?

The recent appeal decision by the Commissioner for Environmental Information highlights that during the previous five years search and retrieval fees have been wrongly charged by public authorities for requests for access to environmental information. The decision also provides a good opportunity to summarise how the provisions of Directive 2003/4/EC relating to fees have been interpreted in Ireland and the UK.

The impermisibility of charging search and retrieval fees has been clear since an earlier 2008 decision of the Commissioner in Open Focus and Sligo County Council. In that case (which was not appealed) the issue of discretionary fees, although not the main issue, was examined in detail by the Commissioner who found that search and retrieval fees are not permitted:

“Furthermore, in order for a decision maker within the Council to deal with the request for information and form a view as to whether it could be supplied under the Regulations, it would be necessary for the information at issue to be identified and retrieved. There is no provision in the Directive or in the Regulations for the charging of fees for the processing of a request for access to environmental information. Following the assessment of the information and, as in this case, a decision to release it, I consider that it is the next step – the supply of the information to the requester in copy form – that potentially attracts the charge.”

Accordingly since May 2008 public authorities should have been under no doubt that search and retrieval fees were not permitted to be charged. Worryingly the Open Focus decision seems to have been completely ignored by most public authorities including, it must be said, the Department of the Environment which up until this month continued to publish guidelines which explicitly stated that search and retrieval fees could be charged.

Only after the Commissioner decided against the Department of the Environment itself has it finally decided to modify its guidelines to bring them into compliance with the Open Focus decision.

Interestingly the issue had not been subject to a definitive adjudication in the UK until 2011 when the Upper Tier Tribunal in Kirklees Council v Information Commissioner and PALI Ltd [2011] UKUT 104 held that such fees may not be charged for in situ examination and the First Tier Tribunal further held in Leeds City Council -v- Information Commissioner that charges could only be levied for the costs of transferring environmental information (e.g. costs of reproduction) to a requestor who did not wish to examine it in situ. Each of these cases arose from appeals by commercial property searchers (who provide responses to standard Law Society questionnaires as part of conveyancing transactions) against search and retrieval fees charged by local authorities for access to environmental information required by them to fill out the search questionnaires.

The UTT in Kirklees had little doubt on the issue:

“[98] We also disagree with Mr Coppel’s submission that the word “supply” in that sense can be extended to cover the process of locating and retrieving information for examination.  We consider that the proper reading of Article 5(2) of the Directive and Regulation 8(2)(b) of the EIR is to prevent a public authority from charging an applicant for examining in situ the requested information and to permit fees to be imposed only for supplying the information in some different way, e.g.  by provision of a copy of some sort. To put it simply, an authority that makes a charge for going and getting the information to make available for examination in situ, and refuses to make it so available unless the charge is paid, is not making that information available for examination without charge.”

Moreover, the FTT in Leeds City Council  further emphasised the Kirklees decision:

“[78] … Kirklees confirms that a public authority may not impose any charge or recover any cost for making information available for inspection. It would be wrong, in principle and in light of the purpose of the Directive, that a public authority which has not done the work necessary to put in place systems so that the information is in a form in which it can be inspected, free of charge, to be able to pass on to a requester the costs of locating and retrieving the information to put it into a format in which it can be made available.”

and went on to hold that:

[98] … having regard to the provisions and underlying aims of the legislation, the cost of ‘making available’ environmental information should be construed narrowly so as to apply only to the cost associated with the process of supplying (i.e. transferring) the information to an applicant once the requested information has been located, retrieved and put in disclosable form. Any other interpretation would have significant adverse consequences to those wishing to access environmental information.”

While the issue has not been the subject of a definitive decision by the CJEU it seems likely that this court will also follow the rationale of the Irish and UK cases. In fact in case C-217/97 Commission -v- Germany Advocate General Fennelly (as he then was and now a member of the Supreme Court) stated in his opinion at para 23:

“The notion of what is ‘reasonable‘ must in my view be interpreted in the light of the general scheme and purpose of the Directive, and of the context in which it is used. As already noted, the Directive proceeds upon the basis that access to environmental information will ‘improve environmental protection‘. Its primary objective is ‘to ensure freedom of access to … [such] information‘, and it seeks to achieve this end by obliging the Member States to ensure such informationis effectively ‘made available … to any natural or legal person at his request without his having to prove an interest‘. In the light of this objective and the means chosen to achieve it, the question of whether the charges for the supply of the information are ‘reasonable‘ must be judged from the perspective of the member of the public requesting the information, rather than from that of the public authority. While it does not expressly preclude a Member State levying a charge for the time and effort of public officials, such an approach seems to me to be fundamentally incompatible with the principal features of the Directive.”

Ultimately the ECJ (as it then was) did not need to rely on this element of AG Fennelly’s opinion but it seems likely that it would adopt it should the it be required to do so.

It seems that the conclusion to be drawn from these decisions is that there is a greater public interest in access to environmental information when compared to access generally under freedom of information. Accordingly, the question of which charges are permitted should be interpreted narrowly so that the objective of making environmental information available as widely as possible can be achieved. Therefore requesters should not be obliged to pay for the processing of a request, should be able to examine information in situ free of charge and should only pay the disbursements incurred by a public authority where copies of requested information is transmitted to them.

Ironically Mr Swords had to pay €150 to the Commissioner to lodge his appeal against a search and retrieval fee of €146.65 proposed by the Department of the Environment. Following the rationale of the Irish and UK decisions it seems unreasonable that the Commissioner should charge a fee for lodging an appeal since an appeal itself can be rightly viewed as a part of the processing of a request and not of supplying environmental information. Indeed very often an appeal to the Commissioner is necessary before any information is supplied.

At the very least it is now uncertain whether the Commissioner is entitled to levy this fee but we must wait until this issue itself is examined in an administrative tribunal or court before it can be resolved.


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.


All is not well in Galway City Council

Guest post: Enda Cunningham is a news journalist with the Connacht Tribune Newspaper Group in Galway, where he has worked on a freelance and full-time basis since 1997. He is also a regular contributor to several national newspapers and radio stations and while he is an ‘all-rounder’, he has particular interests in the areas of planning, property, business and finance. He can be contacted at ‘enda AT ctribune DOT ie’. We have previously covered his work on this site. – Mark

Environment Minister John Gormley might be wasting his time with the remit of his ‘planning review‘ in Galway County Council, when a probe into their counterparts in Galway City Council could throw up some real gems, as I discovered.

There’s a lot of info in this post, so please bear with me.

When it comes to paying Development Contribution Levies, some builders in Galway City have been a bit lazy, and it’s taking the Council up to three years to chase up some of the debts, such was the leeway being given.

In fact, the Council is currently owed around €5.4m in unpaid development levies, €1.3m of this is being chased up through the District Court and High Court, while the rest is the subject of enforcement orders or is being paid by installment.

The single biggest debt relates to the abandoned Crown Square development in Mervue – headed up by Padraic Rhatigan of JJ Rhatigan and Walter King of GK Developments – where almost €2.1m is owed.

I had a lengthy sift through a couple of dozen Galway City Council planning files which turned up some very interesting information on several of the biggest developers in Galway during the boom years, but the real golden nugget that emerged from my investigation that must surely be a real cause of embarrassment for officials – a typo on a planning condition which could cost the Council €468,389.29.

Basically, where the Council should have sought development levies for all 120 residential units in one particular development, they instead specified ‘apartments’ – of which there are only 28. Continue reading “All is not well in Galway City Council”

"…I'm simply not prepared to sign off on a proposal that provides that a blanket sum is handed out irrespective of whether the sum has been incurred or not."

In the early days of this blog we covered Oireachtas members’ expenses quite a bit. Using documents we’d FOId we calculated the average weekly, daily and hourly claims the top three ‘spenders’ were making. The Sunday Tribune published a double-page spread using the documents, and the Daily Mail mentioned the calculations. It made a bit of an impact.

Mark had promised to publish the same figures for an average TD but, unfortunately never got around to it. Life was hectic, it was simply too time consuming to lay out a spreadsheet in the same way with details for each person who has served in the Oireachtas since 2005. Of course things would have been easier had the Oireachtas sent us the documents in electronic format, as requested… but that’s a blog post for another day.

At the time there was lots of hand-wringing about expenses, Ken Foxe – may the country thank him – was in full flight with his prolonged FOI campaign on the topic, John O’Donoghue’s expenses in particular. Other journos were gradually climbing onto the bandwagon and the Government for various reasons, expenses not least among them, was looking shaky.

There was much talk of “fully vouched”, “transparency”, and “openness”.

This week a revised expenses system was introduced, billed as reform.

It’s disappointing. The Oireachtas members – on all sides – have missed the point. Read the proposal and you’ll see it is focused on numbers. Instead of nine or ten headings under which expenses/allowances can be claimed, there’ll be two. They’ll be able to claim a travel and accommodation allowance and a public representation allowance.

The T&A allowance is the one that’ll be based on members signing into the Houses of the Oireachtas and the distance from their contituency which they must travel to get to the same location. Continue reading “"…I'm simply not prepared to sign off on a proposal that provides that a blanket sum is handed out irrespective of whether the sum has been incurred or not."”