Killing Freedom of Information in Ireland

We’ve had sight of new amendments to the FOI Bill 2013 proposed by the Department of Public Expenditure and Reform.

We will be blunt: if passed, Freedom of Information is dead. will, in all likelihood, cease all FOI requests. And we will not seek funding from the public to support an immoral, cynical, unjustified and probably illegal FOI fee regime. We will not pay for information that the public already pays for. We will not support a system that perpetuates an outrageous infringement of citizen rights. The legislation was gutted in 2003 and it is being gutted again. More generally the number of requests from journalists from all news organisations in Ireland will fall as a result of these amendments, and the resulting efforts to shine a light on the administration of the State will certainly deteriorate. And secrecy will prevail.

Minister Howlin will likely say “but we’re bringing more bodies than ever before into the FOI regime”. Great Minister, but we won’t have the ability or resources to FOI them. But then I think you already know that. If Mr Howlin was being honest in his so-called reform, he would simply repeal the legislation entirely and be done with it. Open data will be plugged – but open data regimes only release information the Government wants to release.

This blog was started 4 years ago with the pro bono objective of maximising the rights of citizens and journalists to access information from official sources. Within our rights to access information we used the now well known FOI Act 1997/2003, the Access to Information on the Environment Regulations 2007/2011, the UK FOI act, the United States FOIA 5 USC § 552, and the EU’s Regulation 1049/2001.

During that time we submitted over 200 access to information requests, funded by you to the tune of thousands of euro, while also arguing that the fee regime was wrong. As time went on we developed new techniques for seeking data rather than paper, techniques to obtain large amounts of information with a single request, included billions of euro of previously undisclosed public expenditure. We became known for the techniques we were using, and have trained journalists in Ireland on using those techniques, along with training journalists in Serbia, Croatia, Hungary and Spain. The data and documents we obtained made headlines in almost every Irish newspaper, often in many newspapers at the same time. When you see documents like Ireland’s application for a bailout, it was this blog that got it.

We also scanned and made publicly available for the first time historic but important documents. These included the Beef Tribunal Report (almost 1,000 pages), the Glackin Report, and many others.

We appealed decisions successfully, including important precedents on the balancing of the right to privacy with the public interest.

We sought information from Anglo Irish Bank and NAMA in 2010 under the AIE Regulations, and succeeded in arguing that both were public authorities under those Regulations with the Commissioner. (Gavin Sheridan and Anglo Irish Bank / Gavin Sheridan and the National Asset Management Agency).

When those bodies appealed to the High Court we made lengthy submissions throughout the process arguing that they were in fact public authorities. We created legal precedent around the implementation of the AIE Regulations in National Asset Management Agency -v- Commissioner for Environmental Information [2013] IEHC 86, when the High Court agreed that NAMA was in fact a public authority. When NAMA sought a stay on that judgment pending a Supreme Court appeal, we argued (among other things) before the court that such a stay if granted would be a breach of the State’s obligations under the Aarhus Convention by breaching our right to a timely judicial process. The court agreed, and NAMA appealed that to the Supreme Court. Just three weeks ago we asked the Supreme Court for an expedited listing in the case, which was also granted.

All efforts on this case were those of just two citizens, Fred Logue and me, acting in our spare time to try and vindicate ours – and the public’s – right to access information. These are rights we believe are enshrined in our rights to freedom of expression via the European Convention on Human Rights.

Back in July we promised you we would keep an eye on the passage of the FOI Bill 2013. Before that, we made detailed submissions to the Oireachtas Finance committee, both in person and in writing about the original FOI heads of bill. We also participated with the Department of Public Expenditure and Reform (DPER) in an external working group in an effort to make the FOI process (not the law itself) better.

Today we had a look at new amendments DPER proposes to make to the Bill. They are nothing short of staggering. In some ways we are going so far back that we might as well not have an FOI Act in the first place.

First is the changes to Section 12:

This provision kills all requests containing a request for more than one record from more than one division within a public authority. It’s also a proxy fee increase. If you ask for four things from different divisions of the same body, your request fee jumps from €15 to €60. This would kill most requests this blog has ever sent. It would also kill most requests by journalists who are trying to maximise the amount of information they can get for the unjustified €15 fee in the first place. The €15 fee created multifaceted requests.

This provision basically means that you can be charged anything for, well, anything. It gives discretion to officials to charge for moving a mouse or typing on a keyboard. If a public body wishes it, this will kill most FOI requests.

Is this the end of FOI in Ireland, should these amendments pass? Effectively, yes.

And why, you might ask, are all these new and significant amendments appearing now, just before Committee Stage? A cynic would suggest these changes were well considered in advance and are being introduced at the end of the process in order to sneak them in. But we’re not cynical, are we?

Here’s the full list of proposed amendments from DPER:

Tracking is a pretty difficult website to navigate. As government-type websites go, it probably has more information than you might expect. There is lots of room for improvement though. Apparently, in line with guidance from the Data Protection Commissioner, blocks Google from indexing its website. This relates to the so-called “right to be forgotten”.

However, access to information rights are not limited to access to government documents via FOI or AIE, they also extend to courts documents. In Ireland the system is positively Victorian.

A quick examination of the Courts Robots.txt file tells us how the indexing works. Robots.txt is the file that tells search engines what they can and can’t index. Here’s the Courts one:

User-agent: *
Disallow: /legaldiary.nsf/

User-agent: *
Disallow: /judgments.nsf/

User-agent: *
Disallow: /LegalDiary.NSF/

Which basically tells Google to feck off from the legal diary and judgments. The text that appears in these pages won’t appear on Google search results. This makes tracking all the more difficult, but also all the more essential, particularly for journalists.

For example:

Screen Shot 2013-10-22 at 20.47.45

These cases, filed on October 21, apparently involving IBRC (formerly Anglo Irish Bank) board members Alan Dukes and Mike Aynsley vs Independent News & Media, look to be of some news interest.

Tracking court filings is one of the basics of journalism, it’s a shame the Courts website doesn’t make it easier.

Supreme Court grants expedited listing in NAMA case

In another turn of events relevant to Aarhus Convention and access to information nerds, today Chief Justice Susan Denham granted an expedited listing for NAMA vs Office of the Commissioner for Environmental Information (OCEI).

The AIE request in the matter was sent by me in early 2010, and 44 months later the issue at hand – whether NAMA is a public authority for the purposes of the Regulations – is still not answered. We argued that such a delay was at odds with the Aarhus Convention’s requirement for a timely judicial process. For its part, counsel for NAMA Brian Murray SC made similar arguments, saying that NAMA had a significant interest in the case and the timeliness of the process was at issue. NAMA applied for an expedited listing – in a slight change of tack from previous hearings. In a submission made in the Supreme Court case earlier this year, we put it to the court that NAMA had in fact frustrated the process by taking a narrow view of the initial request (as the High Court had determined) and had acted in bad faith.

Chief Justice Denham said that the case would be heard in this term (before Christmas) if a date became available, but failing that it would be early in the new term – most likely January or February of 2014. Increasingly the Aarhus Convention is being noted in Irish court cases, and we emphasised in our submission that the Aarhus Convention was essentially being breached due to the delays in this case.

This is the submission we handed to the Chief Justice this morning outlining arguments in relation to delays relevant to Aarhus cases.

Is this IBRC's Statement of Affairs?

This comes from an anonymous Twitter account – @QuinnAnglo – so all the usual provisos apply.

The tweeter in question claims this document to be the Statement of Affairs of IBRC before the liquidation of the company in February 2013. It includes a list of creditors (though not depositors – as Noonan intervened on that one).

The Statement of Affairs was handed over to the Department of Finance recently and took some 8 months to produce. Some hedge funds are investigating if the bank’s insolvency was contrived and are considering taking legal action.

The account has been mentioning it to various journalists on Twitter:

The list of creditors is hard to read but contains some interesting names.

Of course that’s on the basis that the document is real. I asked the anonymous Twitter account if the document is real and got this reply:

Here is the document:

Was the guarantee a panicked decision?

It has been a common narrative since 2008 that the decision to guarantee the banks was a late night decision, taken perhaps in the heat of the moment for fear of the entire banking system collapsing if we did nothing (or acted on a set of alternative proposals provided by Merrill Lynch).

However in another tape released by Tom Lyons and me yesterday in the Sunday Independent this narrative is somewhat dented. In the days prior to the guarantee, and in a phonecall likely made between September 24-26, 2008, John Bowe from Anglo spoke to a senior official in the Central Bank.

Bowe: …[The Regulator has been asking]’So when are you going to run out of money’? And this is our best guess as to how these things unfold.
Official: Right.
Bowe: Making assumptions obviously contractual stuff is rolling off and then we’ve made assumptions around the customer stuff. And that, that if you like gives us a point of time which is, which is Monday.
Official: That, that by Monday you will be out of collateral?
Bowe: By Monday, we would, yeah, exactly.
Official: Ok, em.
Bowe: We will be out of cash and collateral.

Anglo were projecting they would run out of money on Monday, September 29, 2008, and if they survived Monday via money market funding they said they would certainly be in trouble on Tuesday September 30, 2008. How well prepared was the Department of Finance for this eventuality? How did they factor this news in, if at all? How panicked was the decision to guarantee?

This information is by no means a smoking gun, but it does add to our understanding of events that week.

1 Grand Canal Quay

1 Grand Canal Street

This is 1 Grand Canal Quay, where Denis O’Brien’s Communicorp Ltd is headquartered. The building is owned by Mr O’Brien personally, with a registered address at 77 Wellington Road, Dublin 4. I walk by it every morning on the way to work so I was curious about it.

A mortgage charge on the property was registered with Anglo Irish Bank in 2001, 2009 and 2011. Each of these have since been cancelled. The most recent charge from Anglo Irish Bank was cancelled on October 19, 2011.

A new mortgage charge was registered 5 months later with Bank of Ireland on February 29, 2012.

This is the full folio:

There are a number of active and former companies registered for the sixth floor at 1 Grand Canal Quay, some of which are connected to Mr O’Brien’s wide ranging business interests. They include:

Communicorp Group Ltd
Barathea Ltd
Digicable Ltd
Partenay Ltd
98 FM Classic Hits Ltd
Brigadoon Media Ltd
Communicorp Investments Ltd
Metro Radio International Ltd
The Haven Community Foundation Ltd
Trinity Property Golf Ltd
European Radio Corporation Ltd
Fieldsville Ltd
Island Capital Ltd
Island Capital Services Ltd
R-Tel Ltd
Radio Two Thousand Ltd
Spin South West Ltd
Web Radio Ltd

Mr O’Brien’s stake in Siteserv is via an Isle of Man company called Millington Ltd.

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

FAS internal bulletin board to be released

It’s a long time coming.

Readers may recall that back in 2010, FAS closed their internal bulletin board after staff had been “posting nasty messages on the internal notice board about Rody Molloy, the deposed director-general”, according to then Senator Shane Ross.

In the article, Ross noted:

At least one fun-loving outsider tried to break into the staff intranet board. According to FAS, “an external internet blog posted the internal address of the bulletin board pages and sought access”. FAS proudly declares that it became aware of the attempted breach and stopped the rot.

This was not entirely true. What had actually happened was that this blog was being discussed, and linked to, from the FAS internal bulletin board. We saw it in our referral traffic, as this blog post outlines. We never attempted to “break into” it.

Of course what we actually did was request from FAS a copy of the bulletin board under FOI. Our request was phrased thusly:

1) All briefing documents related to the appearance by FAS staff, or their representatives, at the Public Accounts Committee hearings of February 2010.

2) A ‘datadump’ (MySQL export) of the entirety of the internal PHP bulletin board located at this address:

3) A screengrab of the entire thread at This will likely be in .jpeg format, or multiple jpegs, depending on the length of the thread.

4) A ‘datadump’ of the entirety of the Agency’s CORE database inasmuch as such data relates to expenses claimed.

FAS refused our request citing various sections including the not oft used ‘frivolous/vexatious’ component of Section 10. In their refusal to release the database, FAS used some rather spurious reasoning. They made an odd distinction between records and “official” records (no such distinction exists) and even accused us of not having the public interest at heart. Bless. In fact it’s worth reading the ‘rationale’, if you could call it that, in full:

My view is that this request has been made in order to undermine the work of FÁS and its staff and to add fuel to the ongoing media attention that FÁS have found itself in. It is reasonable to expect that FÁS staff have many views on the events that have taken place and it is also reasonable that FÁS staff should have some facility in which to air their views. This facility is the FÁS bulletin board. I do not consider it is unreasonable that such a facility be in place. Staff should be able to use this facility to express those views. The bulletin board is a very important communications tool for colleagues to assist each other with queries of a work nature in an informal environment. It provides instant access to answers that might otherwise take time, all done in an effort to provide an efficient and effective service to FÁS clients. Questions are raised and answered informally as this is the purpose of the bulletin board. It is also a communications tool for colleagues to debate issues among each other, work related and otherwise.

My opinion is that this request has not been made with the best interests of the public at heart. The rights provided by the FOI Act must not be abused by public bodies and in turn must not be abused by members of the public. I am satisfied that the request amounts to an abuse of the right of access and that it is made for a purpose other than to obtain access. In my opinion, all internal staff bulletin boards will cease to exist if it is widely known that they are available under the FOI act, an act that was set up to ensure transparency in public bodies relating to official information. I do not consider that it is necessary to show transparency in this area as the information cannot be deemed ‘official information’. There is no public interest in releasing this bulletin board. I do understand that the bulletin board might be ‘of interest’ to the public but there is a clear distinction between ‘of interest’ to the public and ‘in the public interest’ and it is very important not to confuse the two. In my opinion there is no public interest in the release of comments attributed to FÁS staff in relation to a variety of topics other than a general curiosity. The release of the comments would not assist the public in their understanding of the processes of government in any way.

The release and publication of the FÁS bulletin board would have many effects, that is to undermine the staff of the public body, to cause undue attention to FÁS and to highlight FÁS in a negative way for the amusement or entertainment of others. None of this is consistent with the ‘spirit’ of the FOI Act. I am therefore of the firm belief that this request is frivolous and vexatious.

The case was then appealed to the Information Commissioner, who thanks to a large backlog, has just issued a decision (in full below). The decision of FAS has been annulled and the Commissioner has directed the release of most of the data, bar some small exemptions. The sections of the Act tackled were Section 10 (1) (e), Section 26 (1) (a) (Information obtained in confidence) and Section 28 (Personal Information). In relation to the vexatious section, the Commissioner noted:

Helpfully, the Commissioner has provided some guidance on how purported vexatious requests should be handled:

It was found that my request was not even close to the above:

Here is the full decision:

'€300,000 from autism fund spent in Reilly’s heartland'

Back in June, Paul Cullen at the Irish Times wrote a couple of stories about how autism services funds were being spent.

No posts unfilled in area that got autism funds
All €300,000 from autism fund spent in Reilly’s heartland

Money quote:

All the money so far provided from a funding boost for autism services announced by Minister for Health James Reilly last year has been spent on cutting waiting lists for children with the condition in his political heartland in north Dublin…

The documents used for this FOI, related to emails about autism services are published here:

1989 US Dublin Embassy cables

On Saturday and today the Irish Times published a series of stories, by me, Stephen Collins, Miriam Lord, Dan Keenan and Steven Carroll based on cables this blog obtained under US FOIA legislation. Below are the documents on which the story was based – 1989 State Department documents related to Charles Haughey most of which come from US Embassy Dublin, but some of which come from other embassies.

US dismissive about summit between Haughey and Gorbachev
Cables express surprise at excitement over first Irish-Soviet summit
“Gorbomania” has swept the country
US urged Haughey to take tough line with Nicaraguan president Ortega
Key Irish-American congressman got red-carpet welcome for work on extra visas
Donnelly warned of possible erosion of support for the International Fund for Ireland
‘I hope when you see Gorbachev at Shannon you will urge him to support efforts to bring peace to the region’
‘I very much appreciated our exchange of views’
Serious illness made Haughey look for place in ‘history’
Haughey seen by US as deftly negotiating PD coalition in 1989
Haughey sought ‘preferential treatment’ for Ireland from US on tax
Ambassador’s view of leading Irish figures
Cables provide a remarkable insight into a dramatic year in Irish politics
Access to foreign state papers only real way to look at Ireland’s sealed years of 1984-1998