From top: RTÉ Investigations Unit; auditors Mazars
On December 17, 2014, journalist Ken Foxe sought from the Houses of the Oireachtas, under FOI, copies of invoices and receipts submitted by 22 TDs and Senators.
Every year the expense claims of 10% of national politicians are randomly audited by Mazars.
It was these politicians Mr Foxe was focusing on for an RTÉ Investigations Unit project, called No Expenses Spared.
On January 16, 2015, this request was refused with the Oireachtas claiming it never physically held the records. It claimed the records passed from the politicians to Mazars.
On February 9, 2015, Mr Foxe sought an internal review of this refusal.
But, on February 25, 2015, the Oireachtas again refused claiming, under section 42(l) of the FOI Act, that the records Mr Foxe was seeking were considered to be the politicians’ ‘private papers’.
Further to this, Mr Foxe, who lectures at the Dublin Institute of Technology, writes:
That seemed to me to open the door to their release. It seemed clear to me that the Oireachtas were no longer relying as strongly on the idea that they did not hold the records – when the invoices and receipts were so clearly in possession of a contractor that they had employed.
Equally, the idea that the “private papers” argument could really apply to invoices and receipts that had been issued from local newspapers, or other such businesses, seemed a stretch.
Similar material has, as we know, been routinely released under FOI in the past in Ireland, and of course in the United Kingdom.
Solicitor Fred Logue – who worked closely with Gavin Sheridan on a number of high-profile cases over NAMA and the ECB – helped me in putting together a new appeal, this time made to the Information Commissioner.
The case, at least to me, seemed open and shut.
One of the very first big decisions made by the Information Commissioner [in 1999] in a case involving Richard Oakley, now of the Times Ireland, had covered some very similar terrain.
In that case, then Commissioner Kevin Murphy said that he could not accept that expenses of members could come within the term “private papers of its [Oireachtas] members”.
I will let the new Information Commissioner Peter Tyndall come in here with his decision:
“Against this background, it would seem reasonable to conclude that receipts and invoices for expenses incurred by [Oireachtas] members in the course of the performance of their functions would not ordinarily be considered to be private papers of the members. However ….”
That turned into a big however.
Mr Tyndall said that under the Houses of the Oireachtas (Inquiries, Privileges, and Procedures) Act 2013 – these invoices and receipts were clearly “private papers”.
He explained the inconsistency with the decision that had been made by his predecessor Mr Murphy about political expenses by pointing out that the new FOI Act 2014 – in particular Section 42(l) – contained new provisions.
“It is quite broad in nature,” Mr Tyndall said, “and affords a more significant protection for private papers of members of the Houses than previously existed.”
Quick aside – there is only one group of people who can benefit from this new and “significant protection”.
Mr Tyndall continued to say that it could be argued that this “broad protection” was “inconsistent” with requirements of public bodies to achieve greater openness, strengthen accountability, and so on.
“Nevertheless, while it might be expected that information relating to expenses of members of the Oireachtas should be fully transparent and subject to public scrutiny under FOI, I must have regard to the prevailing legislation at the time of my decision.”
The decision to refuse access for me – and the broader public – to even a selection of the expense claims of our elected TDs and Senators was upheld.
By the way, this is the expenses system, which we are repeatedly told is “fully vouched”.
Who benefits from this arrangement?
Answer: About 166 TDs and 60 Senators.
More importantly though, who introduced this significant extra protection for politicians (already benefitting from an incredibly opaque and non-transparent expenses system) when the FOI Act was being drafted?
Read the decision in full here