Tag Archives: Information Commissioner

Journalist Ken Foxe, former Minister for Justice Frances Fitzgerald and PR advisor Terry Prone, of the Communications Clinic

The Information Commissioner Peter Tyndall yesterday quashed a previous decision by the Department of Justice to refuse to release correspondence sent between the former Minister for Justice Frances Fitzgerald and her officials and Terry Prone and her PR company the Communications Clinic.

The department made this decision on the basis that there was no such correspondence.

However, Mr Tyndall’s office, in reviewing the department’s decision, found there is such correspondence.

He concluded the department did not take “all reasonable steps to ascertain the whereabouts of further records”; and he has requested that the department ask Ms Fitzgerald to check her personal email accounts for any other records.

On March 11, 2017, journalist, Dublin Institute of Technology lecturer and director at Right To Know Ken Foxe made a request for “copies of all correspondence, both written and electronic” between Fine Gael TD Frances Fitzgerald and/or her private office and Terry Prone and her PR company the Communications Clinic – from the time Ms Fitzgerald was made Minister for Justice to the date of his request.

This meant Mr Foxe’s request covered correspondence between May 8, 2014 and March 11, 2017.

[Ms Fitzgerald stepped down as Minister for Justice on June 14, 2017]

The department wrote back to Mr Foxe two days after receiving his request, saying it was seeking four more weeks (on top of the initial four weeks provided for) to make a decision on the matter, without any explanation for why they needed the extra time.

On May 15, 2017, Mr Foxe sought an internal review as, by then, Mr Foxe deemed his request was refused.

On June 8, 2017, the department decided to refuse the request because, it said, there were no such records.

But it’s on public record Ms Fitzgerald paid the Communications Clinic, via a special secretarial allowance, more than €11,000 between the date she became minister and the end of 2016.

Those present at Disclosures Tribunal earlier this year also saw written/email communications between Ms Prone and Ms Fitzgerald during the relevant time of Mr Foxe’s request.

In the same month, June 2017, Mr Foxe appealed the department’s decision to the Information Commissioner Peter Tyndall – believing that there had not been a thorough search of Ms Fitzgerald’s professional and personal emails and messages.

In turn, an investigator with the Information Commissioner’s office asked the Department of Justice about the steps it took to search for records relevant to Mr Foxe’s request.

The department then discovered 74 records which had not been considered relevant previously.

In his decision regarding Mr Foxe’s appeal, Mr Tyndall wrote:

“It seems that in late January 2018, following concerns expressed by my investigative staff that further records could be held, the Department searched archived email accounts.

My Office identified 68 records that fall within the scope of the applicant’s request and advised the Department of this. The remaining six records were created after the FOI request was made and are not therefore within the scope of the review.”

Mr Tyndall also wrote that some of the records finally located by the department were related to speeches given by Ms Fitzgerald.

He also wrote:

“in response to the query about whether it [the department] had considered
records held in personal email accounts, the department stated that it ‘has no access to or control over such accounts, particularly in respect of persons no longer working in the Department’.”

Mr Tyndall, in his decision, explained that the Department of Justice said it wouldn’t be appropriate for it to ask Ms Fitzgerald whether she has records of correspondence with Ms Prone or the Communications Clinic in her personal email accounts “that might fall within the scope of the request”, and that the department “does not feel it is in a position to go outside of the scope of the FOI Act and seek such information from [Ms Fitzgerald] in an attempt to respond to an FOI request”.

However, Mr Tyndall said he couldn’t accept this position.

Specifically, Mr Tyndall said:

It appears from the records retrieved by the Department and dealt with above that the former Minister and some of her staff used gmail addresses in correspondence with the company [the Communications Clinic] about official functions and activities of the Department.

“To the extent that a gmail or other account may have been used in this way, I do not accept that such content could reasonably be characterised as “private”. I do not believe that it is particularly relevant that the former Minister is no longer working in the Department.”

Yesterday Mr Tyndall made the following decision:

“I hereby annul the department’s decision to effectively refuse access to records identified during the course of this review and I direct it to undertake a fresh decision making process on those records.

“I direct the department to ask the former minister whether she holds additional records within the scope of the applicant’s FOI request and if she does, to retrieve them and furnish them to the department so that it can make a decision on them in accordance with the provisions of the FOI Act.

“The fresh decision making process should be carried out and decisions on both elements above notified to the applicant in accordance with section 8 of the FOI Act.

“For clarity, I specify that subject to sections 24 and 26 of the Act, the statutory time limit for making a decision begins within five working days of the expiration of the four week period for the bringing of a High Court appeal.”

There you go now.

Previously: ‘Records Do In Fact Exist’

Norin’s Prone Position

Thanks Ken

UPDATE:

Appointment
howlin-1024x437

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

molloyFr Niall Molloy who was killed in Clara, Co. Offaly in July 1985

You may recall how the Sunday Times reported on November 30, 2014, that senior counsel Dominic McGinn’s examination of the Senior Crime Review Team’s report relating to the death of Fr Niall Molloy concluded that there was no evidence to support allegations of a cover-up.

The Senior Crime Review Team’s report was carried out on foot of the work by former Irish Independent journalist Gemma O’Doherty and Fr Molloy’s family.

Mr McGinn’s report into the SCRT report has yet to be published and, only last week, Justice Minister Frances Fitzgerald told the Dáil, again, that she is still in consultations with the Attorney General about whether to realease it or not.

Further to this, the Roscommon Herald reports this week that relatives of Fr Niall Molloy are to take a case to the Information Commissioner seeking Department of Justice records.

This move comes after previous requests for access to any records held by the Department of Justice in relation to Fr Molloy, under the Freedom of Information Act, only yielded records from 2010 onwards.

The records that were released were released on appeal.

The Roscommon Herald reports:

A nephew of Fr Molloy, Henry McCourt, who requested access to Department records, said the family was left with no other option. “We feel that unnecessary obstacles are being put in our way. Some of the information that we received on appeal should have been given to us in the first instance as it related to family correspondence,” Mr McCourt said.

“We’re not being given access to records before 2010 and at this stage we feel we’ve no other option but to go to the Information Commissioner,” he added.

Previously: Death, Cover-Up And Martin Cahill

Not Going Away