Data Protection Commissioner wanted to provide “guarantee of absolute confidentiality” to technology giants

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.

Details of presidential use of government jets and Air Corps helicopters released after four-year battle

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:

Right To Know and Public.Resource.Org initiate legal action against the European Commission

Today, Right To Know – in collaboration with US access to information NGO Public.Resource.Org (“Public Resource”) – announced they have initiated legal action against the European Commission at the Court of Justice of the European Union (CJEU).

Right To Know and Public Resource are seeking from the European Commission access to descriptions of certain technical standards agreed by the European Committee for Standardisation (Comité Européen de Normalisation) or “CEN“.

We sought technical public safety standards with the force of law that include the safety of toys, including children’s chemical sets and and those relating to the chemicals present in products such as finger paint.

Late last year, we sought access to these standards via a request under Regulation 1049/2001 (containing Aarhus Convention related amendments). The European Commission refused access to these standards at both the first juncture and after a confirmatory appeal.

Our legal action at the General Court seeks to annul this decision of the Commission to refuse access to these standards.

It is the view of both Right To Know and Public Resource that harmonised technical standards form part of EU law and should therefore be available to any EU citizen – without restriction.

We rely in particular on the decision of the Court of Justice in James Elliott Construction (C-613/14) that “a harmonised standard … and the references to which have been published in the Official Journal of the European Union, forms part of EU law”.

Right To Know Director Gavin Sheridan said: “We believe all EU citizens have a right to access and read all EU law. EU law includes harmonised technical standards – and those technical standards include the safety of toys.”

“We are pleased to be working with Public Resource and its founder Carl Malamud who has a very long and admirable record in working on access to information rights globally.”

“We are both perplexed as to why EU citizens – including parents – are unable to read the standards imposed on toy manufacturers concerning the levels of chemicals to which their children might be exposed. It seems odd to us that EU citizens must currently pay for access to this information – it should be available for free and without restriction on re-use, or dissemination.”

Public Resource and Right To Know are represented by Morrison Forrester in Berlin, Germany and by FP Logue solicitors in Dublin, Ireland.  

Public Resource is a not-for-profit public charity established in the United States to make government information more broadly available to citizens and to help make governments use the Internet more effectively.

Right To Know is a not-for-profit company established in Ireland that seeks to vindicate the rights of citizens to access information, as part of their fundamental rights to freedom of expression.

An airport VIP bill of €16,500, a near €20,000 luxury accommodation bill, and €200 for a harpist – full details of spending on Dáil 100 commemorations

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.”

Met Éireann guidance for staff on what to say when asked about climate change

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 warned government it might have to move operations out of Ireland because of double taxation of air crew

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.

Right to Know brings High Court challenge to increase transparency around lobbying

* 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/

Government claimed ending citizenship rights for Irish-born children was needed because of fears over international terrorism

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.”