Merrill Lynch advice to Department of Finance

Via Pearse Doherty comes this result of an FOI request, reported on here:

Merrill Lynch & Co. told the Irish government in 2008 it would cost 16.4 billion euros ($22.8 billion) at most to rescue its banks, a quarter of the eventual bill for bailing out its financial system.

Merrill produced the estimate in a 45-page presentation to the Dublin-based Irish finance ministry on Nov. 18, 2008, according to documents released by the government after a freedom-of-information request by opposition lawmaker Pearse Doherty. Ireland paid the firm 7.3 million euros for banking advice in 2008 and 2009.

Full documents below, OCRd and turned the right way up.

ECB again refuses release of Trichet/Lenihan bailout letter

This morning the EU Ombudsman notified me that the European Central Bank governing council had refused her office’s request to release the November 2010 communication between then ECB President Jean Claude Trichet and then Irish Finance Minister Brian Lenihan, which I sought from the ECB two years ago.

The refusal yet again emphasises the culture of secrecy in which many European institutions operate. Despite the clear public interest in releasing the letter which the Ombudsman acknowledges, the ECB clearly believes it can operate with impunity. The decisions of the ECB, and its communications with the elected governments of Member States, are ones that European citizens should have access to, particularly in this context where Ireland has exited from the bailout and communications are a matter of record. European citizens seem to be powerless in the face of European bureaucracy and an endemic culture of secrecy within it.

Similar communications to Member States have variously come into the public domain, in Italy via a leak to the media and in Spain via a book written by the country’s former premier.

Unfortunately the EU Ombudsman has no power to compel the ECB to release the letter – her office should be empowered in this regard.

Here are the documents in relation to the release of the letter. Mario Draghi’s refusal:

The Ombudsman’s request to release:

An Garda Siochana, transparency and access to information

An Garda Siochana have been subject to some significant public scrutiny of late, in terms of how accountable and transparent the organisation is.

This blog has long held the view that the force should be subject to the Freedom of Information Act. The current FOI bill before the Oireachtas contains provisions that will include the force under the Act for the first time, but only in relation to “administrative” records.

However, like we believe NAMA is subject to the separate Access to Information on the Environment (AIE) Regulations, likewise we believe An Gardai Siochana to also be subject to those regulations.

To that end, last year I sent a request to An Garda Siochana seeking certain environmental information. As the Gardai have no AIE officer (despite having an obligation to have one), I sent my request to their press office. They replied:

Applications for Access to Information on the Environment should be made to:

Information Officer,
Departmental Strategy Unit,
Department of the Environment, Community and Local Government,
Newtown Rd,

This response demonstrates just where we are when it comes to AIE in Ireland (and our international obligations under the Aarhus Convention). The Gardai were telling me to ask the Department of the Environment about information they held, and that they were legally obliged to respond to. I politely responded:

I’ve looked at the Regulations and this matter should should be dealt with by someone at An Garda Siochana, as the Department of Environment is not related to the request.

Perhaps you could point me to the person in charge of AIE requests at An Garda Siochana?

The Department of Environment doesn’t hold the information I’m requesting (it is its own public authority, as are all other the Departments, and authorities like Coillte, the Central Bank, the ESB, Bord Gais etc).

The information you quote is actually only related to AIE requests specifically to the Department of the Environment.

An Garda Siochana is a public authority for the purposes of the Regulations, so it is obliged to answer requests for environmental information (AIE requests). The process is similar in nature to Freedom of Information requests (though I know An Garda Siochana is not yet subject to FOI).

As the authority in question, there is one month for the requested information to be released, or rejected, citing any relevant exemptions under the Regulations.

Kind regards

Precisely one month later, the force responded to my request, and refused access citing “national security” and commercial sensitivity. I immediately appealed to internal review, as is my right under AIE Regulations. The Gardai failed to reply.

On the basis of deemed refusal, I then appealed to the Office of the Commissioner for Environmental Information, which then commenced an investigation into the force’s failure to respond to my request.

Following the commencement of this investigation I was then contacted separately by a member of the force at Garda HQ. On November 26 2013 I received an email stating:

I am directed by Assistant Commissioner Jack Nolan to refer to your request for a review of the decision of the Garda Press Officer following your request for information from An Garda Síochána.

The Commissioner has directed that Assistant Commissioner Nolan conduct this review. I am to advise that Assistant Commissioner Nolan is out of the country until 19 December 2013 but he would welcome an opportunity to discuss the above matter with you. In this regard I would be obliged if you could advise of suitable dates to meet with Assistant Commissioner Nolan.

This request is highly unusual, without the participation of the Information Commissioner’s office. Normally a settlement is reached via negotiation with the OCEI, not independently of it. I therefore saw little benefit to meeting with Assistant Commissioner Nolan, and replied:

Thank you for your email of November 26.

I am a little puzzled! What is the precise purpose of the meeting?

My understanding is that the OCEI has commenced an investigation following An Garda Siochana’s failure to answer an appeal for internal review in relation to an AIE request. As such I’m not sure what assistance, as the requester, I can provide in relation to the OCEI investigation.

Kind regards

To this I received no reply. The investigation is ongoing.

In light of this I then sent a second request, seeking:

1) Any and all information relating to measures carried out by An Garda Siochana to implement its legal obligations under the Access to Information on the Environment (AIE) Regulations 2007/2011. Specifically with reference to Section 5 (1) to (5) of the Regulations, what measures have an Garda Siochana carried out in particular vis-a-vis:

A public authority shall:
(a) inform the public of their rights under these Regulations and the Directive and provide information and guidance on the exercise of those rights, and
(b) make all reasonable efforts to maintain environmental information held by or for it in a form or manner that is readily reproducible and accessible by information technology or by other electronic means.,
(c) ensure that environmental information compiled by or for it, is up-to-date, accurate and comparable,
(d) maintain registers or lists of the environmental information held by the authority and designate an information officer for such purposes or provide an information point to give clear indications of where such information can be found.

Kind regards

I received a reply to this on December 19:

An Garda Síochána have responded to and are currently liaising with the Office of the Commissioner for Environmental Information. This matter is now being dealt with by the Office of the Commissioner for Environmental Information and all queries should be addressed to that office.

Incorrect, I pointed out. This was a new and separate request:

Thank you for your email.

However, this is new and separate request to the one currently under appeal with the OCEI. It was sent on November 4, and no reply was received by December 4.

There is a one month deadline to issue an internal review decision under the Regulations in relation to this request.

Kind regards

Following another month passing by, and time limits being breached, I then received a follow up email:

The formulation of a policy for An Garda Síochána in relation to its obligations under the Access to Information on the Environment (AIE) Regulations 2007/2011 has commenced.

As previously advised, Assistant Commissioner Jack Nolan is willing to meet with you to discuss whatever issues you wish to raise.

Any future correspondence in the matter should be forwarded directly to Assistant Commissioner Nolan

Kind regards,

This response does not answer my original request. And this is where we are now. As far as I can see it is now clear the An Garda Siochana have essentially appointed Assistant Commissioner Nolan as their AIE officer, and all public requests seeking environmental information should be directed to his office.

So goes the current state of Aarhus legal obligations in Ireland. Our own police force is failing to enforce and implement a law from 2007, and amended in 2011. And if this is how they handle AIE requests, to which they’ve been subject to several years – how should we expect FOI to work in relation to them once the new bill passes?

(FYI Irish citizens can now (as of September 2013) complain about the Irish implementation of the Aarhus Convention directly to the Aarhus Convention Compliance Committee (ACCC) in Geneva)

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.

Commissioner rules on 1998 Cabinet level documents

Back in December the Information Commissioner issued a decision in my favour in relation to records pertaining to industrial grants from 1998. The full decision has been published, and it is the first decision of the Commissioner pertaining to Section 19 of the FOI Act – the part that relates to Cabinet documents, and their becoming available after 10 years has passed.

The issue at hand was whether the Department of the Taoiseach (and by extension the Department of Jobs, Enterprise and Innovation) were correct in redacting the names of certain companies that had received industrial grants in 1998. I had an issue with this. When I put the request in back in 2010, it was already 12 years since the events had taken place. Section 26 and Section 27 (Commercial Sensitivity) were cited by the DJEI as reasons not to release. Then late in the process (in 2013) they withdrew the arguments under those sections and instead argued under Section 31 (Financial and Economic Interests of the State and of Public Bodies).

Per the Commissioner, the Department argued:

The basis of the DJEI’s claims for exemption under section 31(1)(a) and (c) is that the State operates in a highly competitive international environment in seeking to attract and maintain direct foreign investment. According to the DJEI, no other competing jurisdiction releases the following type of information relating to industrial grant or other similar investment incentive schemes: the name of the company featured on the Cabinet record; the actual monetary value of the grants, whether employment, capital, or training grants; and the grant cost per job. The DJEI argues in essence that the release of such information would weaken Ireland’s competitive position in making offers relating to industrial development and encourage forum shopping by business operators. The DJEI places great emphasis on the “‘mobile nature’ of industry and its ability to relocate to another jurisdiction at the first sign of perceived breaches of confidence by the State Department with responsibility for industrial development”. It describes the redactions it proposes as “minimal” and “particularly relevant to the issue of protecting Ireland’s ‘bidding strategy’ in a fiercely competitive international playing field”.

They also argued closely to a Queensland FOI case, but the Commissioner gave that short shrift:

This is not Queensland. The records at issue are now over 15 years old. They were created during the heyday of the so-called “Celtic Tiger”. The Irish and world economies have drastically changed since then. I do not doubt that competition for direct foreign investment is as fierce as ever, if not more so. However, industrial grant aid is just one of many factors that determines a multinational company’s foreign investment decisions. It is my understanding, for instance, that Ireland’s low corporate taxes are considered to be a more important factor, as indicated by IDA spokesman Brendan Halpin in any article in The New York Times, dated 3 March 2005, entitled “Dublin withdraws promise of aid to Intel”. I simply do not accept that industrial grant information dating from over 15 years ago is of any relevance in today’s economy.

The companies originally contacted by Mr. Stokes did not object to the release of the information concerned. The Director of the parent company who made submissions in June 2013 indicated that only information of a more detailed nature than what is at issue in this case would be of concern to his company. Thus, the question of a breach of confidence is also not relevant.

I am not satisfied that access to the records concerned could reasonably be expected to have a serious adverse effect on the financial interests of the State or on the ability of the Government to manage the national economy. I am also not satisfied that access to the records concerned could reasonably be expected to result in an unwarranted benefit or loss to a person or class of persons. I find that sections 31(1)(a) and (c) do not apply. In the circumstances, it is not necessary for me to address the matter of the public interest under section 31(3) of the FOI Act.

This is a good decision and should go some way towards obtaining more Cabinet related documents from the late 1990s and early 2000s. The documents in question have now been released to me in full.

Glackin (Interim) Report

Thanks to the Oireachtas library becoming available recently, we now have full digital access to the fascinating Glackin (Interim) Report. While we have previously published the final Glackin report, in some ways the interim report is more interesting. This is mainly down to the detailed appendices.

The report involves such luminaries as now billionaire Dermot Desmond, now billionaire Joe Lewis, now billionaire JP McManus, Larry Goodman, Ansbacher Bankers Ltd, John Magnier, Lochlann Quinn, Michael Smurfit and Noel Smyth, among others.

Document – Flynn's court action against NAMA in New York

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Above is the house at the address (300 Ridgeview Drive, Palm Beach, Florida 33480) given by developer John Flynn as part of his case against the National Asset Management Agency (NAMA), in court documents filed on December 20. NamaWineLake and Paul Williams at the Indo have both mentioned the filing.

The judge in the case is Lewis Kaplan who was previously a judge in high profile Guantanamo and Gambino family cases.

Obviously NAMA and its staff have denied (or will deny) the allegations made, and members of NAMA’s board (including some of the people named in the complaint) made a vociferous defence of the Agency at a Public Accounts Committee hearing the same the day the complaint was filed in New York. No documents have yet been filed by NAMA in relation to this case, but I will post them once they are available.

At the PAC hearing the head of NAMA Brendan McDonagh said there is a:

“carefully orchestrated operation . . . to damage Nama”. “It’s designed to damage Nama and undermine its credibility with taxpayers of this country.”

The full document is below:

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.

For the record…

These are the most recent annual accounts for…

Friends of the Coombe Limited
Friends of St Patrick’s Hospital Limited
Rehab National Lottery Limited