From top: Information Commissioner Peter Tyndall with President Michael D Higgins and Labour’s Minister for Public Expenditure and Reform Brendan Howlin on the day of his appointment in December 2013; Mr Howlin’s introduction of ‘significant extra protection’ for politicians in the FOI Act 2014

You’ll recall Ken Foxe’s unsuccessful attempts to access copies of invoices and receipts submitted by 22 TDs and Senators, under Freedom of Information requests.

The Oireachtas refused Mr Foxe’s request claiming the documents were the politicians’ ‘private papers’.

He appealed this decision to the Information Commissioner because, in a case in 1999, the then Information Commissioner Kevin Murphy ruled that politicians’ expenses couldn’t be regarded as ‘private papers’.

However, the current Information Commissioner Peter Tyndall – who was nominated to his position by Labour TD and Minister for Public Expenditure and Reform Brendan Howlin – upheld the Oireachtas’s decision not to grant Mr Foxe access to the documents.

Mr Tyndall ruled that Section 42 (1) of the new FOI Act 2014 – introduced by Mr Howlin – contained a new provision which “affords a more significant protection for private papers of members of the Houses than previously existed”.

Further to this…

Mr Foxe, a lecturer in Dublin Institute of Technology, asked Mr Tyndall and Mr Howlin’s department several questions in relation to his decision.

The Department of Public Expenditure and Reform had no comment to make on Mr Tyndall’s findings.

However, these are Mr Foxe’s questions to Mr Tyndall and the answers he received…

Has Mr Tyndall raised concerns with the Dept of Public Expenditure with regard to what appears to have been extra provisions put in place for protection of politicians’ private papers from public scrutiny?

The Constitution provides that the sole and exclusive power of making laws for the State is vested in the Oireachtas and it is the role of the Information Commissioner, in relation to the FOI Act, to implement the legislation passed by the Oireachtas in an independent and impartial manner.

As can be seen from the recent decision in case 150073, the Commissioner considers it reasonable to conclude that receipts and invoices for expenses incurred by members in the course of the performance of their functions would not ordinarily be considered to be private papers of the members. However, for the purpose of his review, he was confined to determining whether the Oireachtas had correctly applied the provisions of the legislation.

While the Commissioner has not raised any specific concerns with the Department, it should be noted that the Central Policy Unit of the Department receives a copy of every decision made. Accordingly, the Department is aware of the Commissioner’s findings and comments in so far as they are set out in the decision.

How can Mr Tyndall balance the very clear decision made by his predecessor that private papers was clearly never meant to apply to receipts, invoices, expenses etc.?

Mr Murphy’s decision in case 99168, taken in 1999, was based on the legislation as it pertained at the time. It is noteworthy that the records at issue, relating to expense payments made to members of the Oireachtas were held by Office of the Houses of the Oireachtas, in accordance with the expense processing arrangements which existed at the time.

In case 150073, The Commissioner was required to consider the provisions of the FOI Act 2014. The Act of 2014 contains a provision which did not exist in 1999.

Furthermore, the records sought in case 150073, namely the receipts and invoices relating to expenses incurred by the members, are held by the members in accordance with the expense processing arrangements currently in place. This is a relevant consideration in determining whether the records relate to private papers of the members, within the meaning of Part 10 of the Houses of the Oireachtas (Inquiries, Privileges, and Procedures) Act 2013 (the 2013 Act).

Does Mr Tyndall believe his decision will have broader implications now, that access to salaries, expenses, pensions, overseas travel and so on relating to TDs and Senators could now be considered “private papers”?

For a record to be excluded from the FOI Act under section 42(l), the record must relate to any private paper or confidential communication within the meaning of Part 10 of the 2013 Act, or official document, within the meaning of Part 11 of that Act. The question of whether a record is captured by the provision is dependent upon a number of factors, including the nature of the record, its contents, who holds the record etc. The question of whether or not a record is a private paper for the purpose of section 42(l) is not determined by the provisions of the FOI Act. Rather, it is determined by the provisions of the 2013 Act.

It is also noteworthy that under section 42(k), the FOI Act does not apply to a record relating to any private papers (within the meaning of Article 15.10 of the Constitution) of a member of either House of the Oireachtas or an official document of either or both of such Houses that is required by the rules or standing orders of either or both of such Houses to be treated as confidential.

Keeping political expenses secret: what the government has to say (No Expenses Spared, Ken Foxe)

Previously: How They Took Back Your Freedom

Pics: OIC and Kildarestreet.com