On reform

Back in March 2011, just as the new government came in, I blogged about the programme for government.

…I trust not the words of politicians, but their actions. I will be closely watching how things are done, and indeed if necessary lobbying for greater transparency or changes to proposed legislation where I think such changes are flawed, or do not go far enough.

That scepticism, it turns out, was well placed. Now I take into account that no new government, no matter how well intentioned, can achieve legislative reform within the 14 months since March 2011. But could they have done more? Definitely.

Let’s take one example, which clearly is the focus of this blog, The Freedom of Information Act. The Programme for Government promised:

We will legislate to restore the Freedom of Information Act to what it was before it was undermined 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.

Including:

We will amend the Official Secrets Act, retaining a criminal sanction only for breaches which involve a serious threat to the vital interests of the state.

The first thing the government set about doing was establishing the Department of Public Expenditure and Reform. This Department, headed by Brendan Howlin, would take over responsibility for the FOI Act from the Department of Finance. So let’s focus on the core promises of reform promised by Howlin:

  • We will legislate to restore the Freedom of Information Act to what it was before it was undermined by the outgoing Government
  • We will extend its remit to other public bodies including the administrative side of the Garda Síochána

    • While I understand that some 14 months later the Minister has a Heads of Bill drafted (that he doesn’t seem to have consulted civil society on at all) it seems a bit odd we have waited this long. Now Mr Howlin might retort that he wants to bring substantial reform via an FOI amendment, and that takes time, and he may have a point. But there is also this. Both of the precise reforms he has mentioned, and has mentioned persistently in PQs since March 2011, could be achieved without amendment at all.

    If Howlin wanted to remove the fees and reduce them to zero, all that is required is a signature. Back in 2003 when the fees were introduced it was done using a Statutory Instrument (SI 264/2003). All that is needed is:

    1) Copy and paste SI 264/2003
    2) Where a euro figure is mentioned change it to €0
    3) Sign it

    Job done.

    Next on the prescribed bodies. What about:

    1) Copy and paste any of the dozen or more SIs where the Minister has the power to add bodies as prescribed under the Act
    2) Add a list of bodies such as the NTMA, the Central Bank, etc.
    3) Sign it

    Job done.

    Total time taken, probably less than 10 minutes. Total time it’s taken thus far: 14 months. And of course once the 10 minutes are up, you could spend the next 15 months drafting a new Bill to radically improve FOI overall, or bring in other legislation that was promised, like amending or repealing the Official Secrets Act, or Whistleblowers and Lobbying legislation. (I do appreciate it is a little more complicated than this, but not much).

    DDDA to be shut down and a referendum newsdump

    If you ever wonder how cynically our own government – no matter what party – treats us, then you get a clue today. Traditionally we would see bad news being released on a Friday (a Friday night newsdump), so that the bad news would get killed in the weekend news cycle – but this time the tactic is different.

    The Comptroller and Auditor General was tasked with writing a special report into the scandal ridden Dublin Docklands Development Authority (DDDA). That report was finished and signed off on February 24, 2012 – or three whole months ago. The report would appear to have been missing down the back of a couch somewhere and by some miraculous coincidence, today of all days, it appears.

    So forgive my cynicism when you see that

    1) On a day the country goes to the polls in a referendum and;
    2) The night before newspapers are set to be wholly dominated by coverage of that referendum

    …the report magically appears, and Environment Minister Phil Hogan, whose Department is responsible for the DDDA, (and who has been missing in action during the entirety of the referendum campaign) suddenly appears to comment and confirm that yes, the report is published, and yes the DDDA will be shut down.

    Wonderful media management guys.

    Here is the report:



    Dermot Desmond's letter to Gavin O'Reilly

    Back on March 8 journalist Chris Lowry wrote an article for the Irish Independent about Celtic Football Club. The article was an opinion piece about Rangers and Celtic, and how both need each other to survive. He concluded:

    But actually, without Rangers, the whole house of cards could collapse. Celtic would be the hardest hit. What would point of them if their fans had no pantomime villain to boo?

    What, come to think of it, would be the point of Scottish football?

    Discuss.

    The next day on March 9, IN&M minority shareholder Dermot Desmond (a long friend of this blog) sent a letter to then IN&M chief executive Gavin O’Reilly. In it he complained about the above mentioned article saying:

    I was very disappointed to read the above article in the opinion section of the Irish Independent website yesterday. The high standards of journalism, that the IN&M claim to uphold, were clearly ignored when this article was published. It is frankly a disgusting piece of journalism that does a disservice to the IN&M Group. This type of gutter press is not what I would have expected from a company in which I have invested a substantial sum of money.

    And concludes:

    Mr Lowry’s article is not based on fact. Therefore, any response from you to the effect that “this is ‘fair comment”‘ simply will not stand up. I am calling on you to retract this opinion piece without delay and to issue an apology to both clubs. In the absence of a suitable apology, I will be recommending that Celtic FC make a formal complaint based on incitement to hatred.

    Of course, as Mr Desmond admits, he is a significant shareholder in Celtic FC. After reading of Denis O’Brien’s spokesman James Morrissey’s letter to Karl Brophy, one has to wonder just how often current IN&M shareholders Dermot Desmond and Denis O’Brien (or people acting on their behalf) are sending letters like this to management, or indeed to individual journalists working at Independent Newspapers.

    Thanks to a reader, here is Dermot Desmond’s letter, on the paper of IIU, his investment company:



    Minister for Transport diary 2011

    Part of an ongoing process and via another person’s FOI request. The appointments diary of Transport Minister Leo Varadkar from March 2011 to February 2012:



    Mortgage arrears

    The only way is up.

    Brian Cowen's bank guarantee calls and texts

    Thanks to journalist Vinnie O’Dowd for this one. This is the mobile phone bill breakdown for Brian Cowen for the dates around the bank guarantee in September 2008. The numbers were removed by the Department of the Taoiseach. But the times and durations are interesting. Another piece in the jigsaw.



    NAMA vs OCEI

    It’s not clear whether it will be for mention or hearing (I’m hoping the latter) but tomorrow sees another step in the long process of trying to find out if the National Asset Management Agency is a public authority for the purposes of the Access to Information on the Environment Regulations 2007/2011. (This is not Freedom of Information, but a separate piece of legislation). We began this process on thestory.ie back in February 2010 with simultaneous requests to NAMA and Anglo Irish Bank. It’s listed for Court No 4, Four Courts at 10.45am on May 17.

    The core of the argument comes down to legislative interpretation. Myself and Fred Logue (who has kindly given his free time to give huge help on the matter) have argued that the “and includes” part of the legislation when referring to public authorities really does mean “and includes”. NAMA have argued that it effectively means “may include”.

    The Commissioner for Environmental Information, Emily O’Reilly, agreed last September with our view. She noted:

    The National Asset Management Agency has argued that allowing the word “includes” its ordinary meaning would have the consequence, in the present context, of extending the definition of public authority beyond what is envisaged in the EU Directive. What NAMA proposes is that the plain and ordinary meaning of the word, as used in the Regulations, be set aside in favour of a meaning which implies a restriction rather than an expansion or an inclusion. It is not at all clear that, as Commissioner for Environmental Information, I may abandon the plain language of the Regulations in favour of an interpretation which is arguably more in keeping with the provisions of the Directive. This is particularly the case where the language of the Regulations, in this particular instance, is neither obscure nor ambiguous.

    In any case, I am not persuaded that reliance on the plain meaning of the word “includes”, as used in the definition of “public authority” in the Regulations, gives rise to an outcome which is at odds with the Directive. In fact it is very arguable that the Directive encourages and enables Member States to take an expansive approach to what constitutes a “public authority”. Recital (11) of the Directive refers expressly to an expansive intent in relation to the definition; and Recital (24) expressly permits Member States “to maintain or introduce measures providing for broader access to information than required by this Directive.” Therefore, I do not accept that subparagraphs (a) to (c) of the definition of “public authority” in the Regulations should be interpreted as restrictive criteria where a Member State has apparently chosen to take an expansive approach to the definition.

    NAMA and Anglo disagreed with this view, and appealed to the High Court – leading us to this current situation.

    If we are right, then NAMA becomes a public authority, but *only* for the purposes of the AIE Regulations. By extension, Anglo Irish Bank, as a company wholly owned by the Minister for Finance, would also become a public authority, but *only* for the purposes of the AIE Regulations.

    And by further extension, if we are right, a Minister of the Government, a harbour authority within the meaning of the Harbours Act 1946, a board or other body (but not including a company under the Companies Acts) established by or under statute, a company under the Companies Acts, in which all the shares are held by or on behalf of a Minister of the Government or by directors appointed by a Minister of the Government, would also automatically become de facto public authorities for the purposes of the AIE Regulations.

    It has always been clear to us from the beginning that as a little-known and indeed little-used legislation that cases like this were possible – since it is relatively untested. Ultimately we are seeking legal clarity and trying to push the boundaries of how citizens can access information generally – this is not just about NAMA (though NAMA is an oddly opaque organisation in my view).

    It is worth noting the following:

    Article 10 of the European Convention on Human Rights says:

    Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

    In TÁRSASÁG A SZABADSÁGJOGOKÉRT v. HUNGARY in 2009, the European Court of Human Rights found that there had been a violation of Article 10 when access to information was refused. The court noted “in view of the interest protected by Article 10, the law cannot allow arbitrary restrictions which may become a form of indirect censorship should the authorities create obstacles to the gathering of information. For example, the latter activity is an essential preparatory step in journalism and is an inherent, protected part of press freedom”

    While there are cases where access should be limited to some degree, in general free access to information by citizens should be the default position. Access to information is a human right.

    Environmental information is largely untested in Irish legal waters and unless the boundaries are pushed both in terms of what defines public authorities generally, and what defines environmental information, we cannot progress the right to information agenda generally.