We were interested to see the story in the Sunday Independent today by Danny McConnell that utilised the newly available 5 year rule under the new FOI Act. We have also been attempting to use the new Act to obtain 2008/2009 documents. Below is an outright refusal, which we will be appealing (the decision maker fails to understand the difference between Cabinet statements and Cabinet discussions).
Mary Minihan in the Irish Times has recently been writing about Cabinet documents she obtained under Section 19 of the FOI Act. This little-used provision allows citizens to obtain Cabinet level documents and communications after 10 years has passed. She wrote the stories listed below and has been kind enough to share the documents involved with TheStory.ie.
The little used 10-year rule again (Section 19 of the FOI Act). This time the Cabinet agendas for Cabinet meeting for the first half of 2002. The documents outline what was on the agenda for meetings, including memoranda for government submitted, aide memoires, appointments, grants to industry and more. All of the listed documents are also likely obtainable in future FOIs.
Before the FOI Act these documents would generally only become available after 30 years, at the National Archives.
In light of the Supreme Court decision surrounding information provided by the Department of Children to people via a website and a booklet funded by the taxpayer. “Public funding should not be used in a referendum to espouse a particular point of view” the judges noted. The Supreme Court said “extensive passages in the booklet and on the website” did not conform to the McKenna principles.
But is this the first time? We all remember booklets and websites used in other referendum campaigns, particularly Lisbon 2, when the Department of Foreign Affairs released white papers and booklets, sent to every house in the country using public money.
Cast your mind back to 2002. The second Nice referendum is being proposed and then Taoiseach Bertie Ahern attended a Cabinet meeting on July 10. With him were his briefing papers for the meeting, details of which were released to me by the Department of the Taoiseach through FOI, under the 10 year rule. In the context of the Supreme Court judgment and of how public money is spent this is very interesting:
The most interesting bit:
The M/FA intends to launch the White Paper as soon as possible. The current intention is to circulate the summary Information Guide to households in early September, possibly to coincide with the Oireachtas Debate on the Referendum Bill. A circulation in advance of this date would likely not achieve the desired impact. There appears to be no reason, however, why the Information Guide could not be placed on the ‘Nice Treaty’ page of the Department of Foreign Affairs website in advance of the general circulation in September.
What exactly is the “desired impact”? A ‘Yes’ vote one would assume. But is this not circumventing the McKenna principles? This was done on top of, and in addition to any work by the Referendum Commission, which was established just the day before.
So the Government was tactically sending an Information Guide to households at a certain time for maximum impact, and was planning that just the day after the Referendum Commission for Nice 2 was established. Could it be said that this type of booklet was also a case of public money being used to espouse a particular point of view?
These are the Cabinet agendas for all Cabinet meetings from January to December 1999. Cabinet Agendas (among other Cabinet related documents) become available after 10 years, under Section 19 of the FOI Act (unlike in other countries where they can appear as soon as a few days after).
I’ve published these before but now I’ve combined them into year documents and subjected them to an OCR process. These are the Cabinet agendas for all Cabinet meetings from April to December 1998. Cabinet Agendas become available after 10 years, under Section 19 of the FOI Act (unlike in other countries where they can appear as soon as a few days after).
As part of an ongoing process we are obtaining Cabinet records from 1998, 1999 and 2000. These records became available following the expiry of the 10 year rule under Section 19 of the FOI Act, as amended in 2003 (the amendment lengthened the time for release from 5 to 10 years, first making records available in 2008).
This record contains briefing papers for then Taoiseach Bertie Ahern from late May, June and July 1998. We currently have an appeal pending with the Information Commissioner in relation to how information from 12 years ago is redacted – and whether exemptions, such as commercial sensitivity, could still apply. We expect this decision in the near future.
It is also worth noting that prior to the FOI Act, the following papers would have only become available on January 1, 2029, as per the 30 year rule.
For some time now we have been seeking the Cabinet agendas for meetings from 1998, 1999 and 2000. We now have all agendas from April 1998 to July 2000. These records are available because of the 10-year rule in Section 19 of the FOI Act. This is the first time these documents have appeared in the public domain.
It should be noted that many of the industrial grants in these records have been redacted for commercial sensitivity reasons. I currently have an appeal with the information commissioner pending, arguing that since up to 12 years have passed since these meetings/grants took place, it is unlikely the records remain commercially sensitive.
As part of our look at Cabinet papers now available under Section 19 (3) (b) of the FOI Act, I sought some briefing papers for the Taoiseach for Cabinet meetings in April and May 1998. Some of the redactions refer directly to the Constitutional protection of Cabinet “discussion”. I will publish the schedule of redactions shortly. My favourite bits:
In the briefing papers for April 28, 1998, in reference to the plans for LUAS:
We are anxious to avoid discussion by Government of the proposal in the presence of the consultants lest it lead to a public perception that the consultants are driving the decision process.
Or discussion of the Copyright Amendment Bill:
The matter is urgent because it is an essential part of an arrangement between the Department of Enterprise Trade & Employment and the U.S. Trade Authorities, the object of which was to persuade the U.S. Authorities not to proceed with an infringement action against Ireland in the World Trade Organisation.
In briefing papers for May 12, 1998, in reference to proposed ESB price increases:
Despite the good performance, the ESB still wish to implement the third phase of a price increase which was part of the CCR agreement accepted by the previous Government. The Department are of the view that this is not warranted as it was based on projected profits of £31 m in 1998. Profits will be at least £160m this year without a price increase.