Tag Archives: FOI

From the Office of the Information Commissioner’s annual report for 2016

Today.

Information Commissioner Peter Tyndall released the Office of the Information Commissioner’s annual report for 2016 – a year which saw requests to An Garda Síochána rise from 183 in 2015 to 459 in 2016, representing a 150 per cent increase.

In the report, Mr Tyndall also says:

I am disappointed to report that my office has noted ongoing and, in some cases, increasing examples of some public bodies failing to meet the statutory requirements of the FOI Act.

For example, later in my report I comment on the number of occasions that public bodies have not responded to FOI requests within statutory timeframes and on the fact that my office noted an all-time high of instances where the request was deemed to have been refused by the public body in the absence of a timely decision. I also report on several instances where my office had to issue statutory notices to ensure compliance with the Act.

Specifically.

In regards to the OIC – under Section 45 of the Freedom of Information Act – being able to order a public body to provide it with any information it believes to be relevant for a review.

It issued two such Section 45 notices to TUSLA, the Child and Family Agency.

In relation to this…

Mr Tyndall writes:

TUSLA was requested to provide copies of the subject records for a review, on 14 April 2016. Despite a further telephone reminder the records were not forwarded to my Office. On 4 May 2016, we issued a section 45 notice to the Chief Executive of TUSLA and the records in question were delivered almost three weeks later.

And in relation to the second case, Mr Tyndall writes…

My office wrote to TUSLA on 13 June 2016 and requested copies of the relevant subject records within ten working days. On 27 June an incomplete set of records was received.

On 15 July, my Office issued a section 45 notice to the Chief Executive, again requesting the relevant records. While TUSLA delivered a further set of records on 29 July, they were not the ones requested. As a result, on 8 August, we took the unusual step of issuing a second section 45 notice to the Chief Executive. We received the correct records on 11 August, two months after the original request.

Read the report in full here

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Former Irish swimming coach George Gibney; and journalist Irvin Muchnik

Readers may recall American journalist Irvin Muchnick’s efforts to obtain the US Department of Homeland Security’s immigration file on former Irish swimming coach George Gibney.

Gibney was charged with 27 counts of indecency against young swimmers and of carnal knowledge of girls under the age of 15 in April, 1993 – but sought and won a High Court judicial review in 1994 that quashed all the charges against him.

Mr Muchnick hopes the immigration file will shed light on how Gibney was able to get a visa, and then a green card, to live in the States, given the previous charges against him.

Readers will also recall how some partially redacted documents from the immigration file, previously released to Mr Muchnick, have already showed that Gardaí gave Gibney a certificate of character – issued on January 20, 1992 – to support his application for an American visa.

According to the Murphy Inquiry – which was set up to look at abuse in swimming in 1998 – a parent from a club other than Trojan Swimming Club, where Gibney coached, was told by an assistant coach of Trojan in November 1991 that the gardai and the ISPCC were informed of the allegations in relation to Gibney.

But, later, the ISPCC said it had no record of any such complaint in 1991 or in 1992. And, the Murphy Inquiry states the first record on the Garda file is dated December 15, 1992.

On Friday, Mr Muchnick argued for the release of the documents before Judge Charles Breyer, a Senior United States District Judge of the United States District Court for the Northern District of California.

The hearing followed a May hearing, during which Judge Breyer said he would review in camera (privately) disputed documents from George Gibney’s US Citizenship and Immigration Services file, and render a decision.

Further to this…

Mr Muchnick writes:

At the conclusion of a hearing lasting nearly an hour, United States District Court Senior Judge Charles Breyer said he would shortly issue a “tentative” order in which he will likely require the Department of Homeland Security to release publicly additional portions, at least, of the 20 documents from George Gibney’s immigration records that remain under dispute.

During a spirited discussion with my attorney Roy Gordet and the assistant U.S. attorney James Scharf, Judge Breyer made it clear, without tipping his conclusions, that he has serious reservations regarding some of the privacy exemptions that continue to be claimed in this Freedom of Information Act case.

The judge said he will forward to the government highlighted sections or entire documents that he believes should be disclosed, and will harden his tentative order into a fully enforceable one only if the two sides remain at an impasse over particular details. Counsel agreed that this will be a good penultimate step.

I hesitate to report on or characterize the court’s remarks throughout the hearing, for I do not want to compromise the order that is forthcoming and I do not want to substitute my interpretation of them for the simple and full-context publication of the transcript (which I hope to do shortly).

However, it was clear that Breyer understood the pertinent history and controversy over the sex crime allegations against Gibney. And it was especially clear that the circumstances and disposition of Gibney’s 2010 U.S. citizenship application could have considerable impact on the judge’s upcoming decision with respect to exactly what will be revealed.

Four law student observers — three from the University of California-Berkeley and one from Hastings College of Law in San Francisco — were in attendance.

Early in the hearing, Judge Breyer invited me up to sit at the counsel table with Gordet, and later thanked me for my role in bringing legitimate public curiosity over the Gibney matter to this head. I greatly appreciated both gestures as we await what the court now will order the government to produce.

Federal Judge to Issue ‘Tentative’ Order Signaling Partial Disclosure of George Gibney Immigration Files, As Both Sides Agree to Bring FOIA Case to Resolution (Irvin Muchnick, Concussionnet.inc)

Previously: George Gibney’s Green Card

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A letter sent from former IBRC chairman Alan Dukes to Finance Minister Michael Noonan on February 14, 2013 

You may recall how Mr Justice Brian Cregan was appointed to carry out a Commission of Investigation into IBRC on June 16, 2015.

One of the terms of reference is “whether the Minister for Finance or his Department was kept informed where appropriate in respect of the transactions concerned, and whether he, or officials on his behalf, took appropriate steps in respect of the information provided to them.”

The commission’s establishment followed Social Democrat TD Catherine Murphy asking Finance Minister Michael Noonan questions about the sale of Siteserv to a company owned by Denis O’Brien.

Further to this.

The former chairman of IBRC Alan Dukes sent a letter to Finance Minister Michael Noonan on February 14, 2013 – a week after IBRC went into liquidation.

This letter was obtained from the Department of Finance by Ms Murphy, following a Freedom of Information request.

Readers will note there were three sentences redacted in the letter of February 14, 2013.

Following an appeal to the Information Commissioner, the commissioner annulled the decision of the department to redact these sentences.

It found the manner in which the Department had processed the request “most unsatisfactory” and not in keeping with the statutory provisions of the Freedom of Information Act.

Further to this, Justine McCarthy, in yesterday’s Sunday Times, reported:

The Sunday Times has established that the three missing sentences from Dukes’s letter are:

“1. The Department of Finance has at all times been provided with all papers presented to the board;

2. The Department of Finance has been entitled to have an observer at every meeting of the board;

3. The minutes of all committee meetings were systematically provided to the Department of Finance.”

…The ruling by Stephen Rafferty, an investigator in the information commissioner’s office, was made on February 8 but only made public last Thursday. The department has until March 1 to lodge an appeal to the High Court.

…When told what the redacted portion of Dukes’s letter says, Murphy replied: “It’s strange the department would have redacted that. It obviously gives a clue about something. There seems to be a surprisingly small amount of information [available] about the relationship between the department and the bank, given how bad we know that relationship was.

The information commissioner was quite scathing about the department and the fact they are taking their time about whether they’ll release it or lodge an appeal indicates there is not a culture of openness there.”

Anyone?

Revealed: Hidden claims over IBRC liquidation (Justine McCarthy, Sunday Times)

Appointment
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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

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From top: Julie Sinnamon, CEO of Enterprise Ireland; A Lexus IS300h

Ken Foxe, a freelance journalist and assistant lecturer at Dublin Institute of Technology, has obtained documents under the Freedom of Information Act, which show the CEO of Enterprise Ireland Julie Sinnamon was wrongly given a company car.

The car was a Lexus IS300h – a model which has a starting price of €37,950.

Government policy, since the end of 2011, states that cars should not be provided to CEOs of non-commercial State agencies.

The documents obtained by Mr Foxe also show the Department of Enterprise and Innovation defended the decision to include the provision of the car in Ms Sinnamon’s contract – while admitting it should have sought sanction from the Department of Public Expenditure and Reform – and even asked that Ms Sinnamon be allowed to continue using the car.

The Department of Public Expenditure and Reform refused to sanction the provision of the car and requested that  Ms Sinnamon’s contract be amended to remove the reference to the provision of a car.

In a letter, dated March 4, 2015, Philip Kelly, assistant secretary of EU Affairs, Trade Policy & Corporate Services at the Department of Jobs, Enterprise & Innovation, wrote to  Oonagh Buckley, assistant secretary at the Department of Public Expenditure and Reform, to explain that the situation arose following a ‘breakdown in communication’.

In her reply refusing to sanction the car, Ms Buckley explained that if she was to do so, others would make similar requests.

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Meanwhile, Mr Foxe has also obtained a PowerPoint presentation which was created by Oireachtas staff for the Oireachtas Commission.

It concerned Ireland’s Freedom of Information legislation and how, since amendments were made to the FOI Act last year, there has been a five-fold increase in requests.

The slides show that, following this increase, the Government wants to start publishing details of politicians’ salaries, pensions and expenses, etc., in a manner of its choosing, as opposed to leaving it up to the media.

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As part of the presentation, The Communications Clinic – run by Terry Prone and Anton Savage – was flagged as an example of previous FOI requests received:

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There you go now.

Thanks Ken Foxe

Pic: Business and Leadership and Lexus.ie

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Independent TD Catherine Murphy, top, and Tánaiste Joan Burton in Dáil this morning

This morning, during Order of Business in the Dáil, Kildare North Independent TD Catherine Murphy told Tánaiste and Labour leader Joan Burton that she is experiencing major delays in receiving replys to Freedom of Information requests that she has sent to the Department of Finance.

She also said she received one FOI response two weeks after a newspaper obtained the exact same FOI response – even though they were due to receive them at the same time.

Catherine Murphy: “The programme for Government included a commitment to introduce new Freedom of Information legislation, which it did, and my understanding is that it also, it also allows for a review of that legislation. Tánaiste, I have put in Freedom of Information requests into the Department of Finance and I’ve got to say that I’m really unhappy with the way the legislation is playing out.”

I was due to have responses about the same time as responses to the same questions were given to a journalist. Two weeks later, I got them, the exact same pieces of Freedom of Information. I’ve other material that I’m waiting, that’s overdue by weeks. I’ve gone through the appropriate channels, making the complaints and they’re not being provided to me. I’m not being given an explanation. And I’ve got to say it’s completely unsatisfactory.”

“Will you consider strengthening the legislation, if it’s found not to be working and if there is evidence that this is not working, at an earlier date, will you bring in a review before the term of this government is concluded, thank you.”

Joan Burton: “Well, we’ve just very significantly strengthened and expanded and restored the remit of the Freedom of Information Act and, certainly, I’m not aware of the details of what you’re complaining about – I will certainly refer that to the Minister for Finance for comment and reply to you. But what I think is also important and what this government has, as a policy, is to have a more open information society whereby, rather than having people request information, solely through the Freedom of Information Act, that as much information as possible is actually published. I don’t know about the specific incident you’re referring to, Deputy. So, as I say, I’ll refer it to the Minister for Finance for further comment and reply to you.”

Previously: Redactulous

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Minister for Expenditure and Reform, Brendan Howlin, in the Dáil moments ago.

The Dáil is currently discussing the approval of an order to include Irish Water in the Freedom of Information Act. It will be applied retrospectively, going back to July, 17, 2013, when it was legally established as a subsidiary of Bord Gáis Éireann.

This means questions can be asked about the operations of the body going back to that date.

*rubs hands*

Related: Freedom of Information to cover Irish Water

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