Draft conclusions from Right To Know complaint over systematic delays in access to information on the environment requests are published

Two years ago, Right to Know travelled to Geneva for a hearing with the Aarhus Convention Compliance Committee on foot of a complaint we made in August 2016.

This related to long systematic delays in dealing with requests made by us – and others – under the Access to Information on the Environment (AIE) regulations.

One such case was Right to Know director Gavin Sheridan’s long-standing efforts to have the National Asset Management Agency made subject to AIE requests.

The delays persisted and in many of our cases – including ones relating to Coillte, the Office of the President, the Council of State, the Celtic Roads Group, and a number of government departments – decisions were taking at least a year to be made.

In their draft conclusions, the Aarhus Convention Compliance Committee has found the following.

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It is important to say these are only draft conclusions, and it is open to both Right to Know and the Office of the Commissioner for Environmental Information to make further observations.

You can read the report in full below:

Right to Know takes case over access to lobbying record from business group Ibec

A case taken by Right to Know opened in the High Court earlier this week.

The case concerns access to a submission made to the Department of Transport by the business group Ibec.

Our application had been refused by the Commissioner for Environmental Information on the basis that the record was not environmental information.

Right to Know believes it is. You can read more about it in this article from the Irish Examiner.

Right to Know wins case over access to fees paid as part of the Apple tax case

The Department of Finance has released full details of €8.4 million in payments to lawyers and consultancy firms involved in the Apple tax case.

The release came on foot of advice from the Attorney General and following an FOI request by Right to Know.

The Department ceased publishing details of these payments in April 2019 because of concerns they had that it was in breach of GDPR.

Following our request, the Department sought further legal advice with the Attorney General confirming the information could be published in the interests of transparency and accountability.

You can see the record on DocumentCloud.

Information Commissioner rules that release of pensions paid to former Ministers, Taoisigh, and Presidents would be “significant breach” of privacy

The Information Commissioner has decided that release of the individual details of pensions paid to former Ministers, Taoisigh, and Presidents would involve a “significant breach” of their privacy.

The details had been published as a matter of routine by the Department of Finance for many years.

However, they ceased this practice in 2016 believing it was no longer possible following the introduction of GDPR.

Right to Know sought the information under FOI, and appealed the case to the Information Commissioner.

The Office of the Information Commissioner upheld the decision however, resulting in a reversal of more than a decade of transparency surrounding these pension payments.

You can read the decision in full at the following link.

Right To Know and Public.Resource.Org initiate legal action against the European Commission

Today, Right To Know – in collaboration with US access to information NGO Public.Resource.Org (“Public Resource”) – announced they have initiated legal action against the European Commission at the Court of Justice of the European Union (CJEU).

Right To Know and Public Resource are seeking from the European Commission access to descriptions of certain technical standards agreed by the European Committee for Standardisation (Comité Européen de Normalisation) or “CEN“.

We sought technical public safety standards with the force of law that include the safety of toys, including children’s chemical sets and and those relating to the chemicals present in products such as finger paint.

Late last year, we sought access to these standards via a request under Regulation 1049/2001 (containing Aarhus Convention related amendments). The European Commission refused access to these standards at both the first juncture and after a confirmatory appeal.

Our legal action at the General Court seeks to annul this decision of the Commission to refuse access to these standards.

It is the view of both Right To Know and Public Resource that harmonised technical standards form part of EU law and should therefore be available to any EU citizen – without restriction.

We rely in particular on the decision of the Court of Justice in James Elliott Construction (C-613/14) that “a harmonised standard … and the references to which have been published in the Official Journal of the European Union, forms part of EU law”.

Right To Know Director Gavin Sheridan said: “We believe all EU citizens have a right to access and read all EU law. EU law includes harmonised technical standards – and those technical standards include the safety of toys.”

“We are pleased to be working with Public Resource and its founder Carl Malamud who has a very long and admirable record in working on access to information rights globally.”

“We are both perplexed as to why EU citizens – including parents – are unable to read the standards imposed on toy manufacturers concerning the levels of chemicals to which their children might be exposed. It seems odd to us that EU citizens must currently pay for access to this information – it should be available for free and without restriction on re-use, or dissemination.”

Public Resource and Right To Know are represented by Morrison Foerster in Berlin, Germany and by FP Logue solicitors in Dublin, Ireland.  

Public Resource is a not-for-profit public charity established in the United States to make government information more broadly available to citizens and to help make governments use the Internet more effectively.

Right To Know is a not-for-profit company established in Ireland that seeks to vindicate the rights of citizens to access information, as part of their fundamental rights to freedom of expression.

A Renewed Mission: What’s next for Right To Know

 

When TheStory.ie came into this world nearly ten years ago now, it began as an experimental blog run by journalists on a volunteer basis.

It was an attempt to bring together investigative journalism, the right to freedom of information (FOI), and transparency advocacy, to see what would come out.

Through the use of systematic FOI requests, legal appeals, data journalism, and the online archiving of every government document released to us, what came out wasn’t half-bad.

In 2013 we vigorously campaigned against the introduction of upfront fees for FOI requests, sounding the alarm when we saw that there was an attempt to introduce them via a Committee Stage amendment to the drafting of the 2014 FOI bill.

In 2014 the infamous “Trichet Letters” were released, detailing the immense pressure brought to bear on the Irish state by the European Central Bank (ECB) in 2010, following a three-year appeals process which we initiated via the EU ombudsman.
We were also the first to publish the letter which Ireland sent formally seeking a bailout.

In 2015 NAMA were defeated in the Supreme Court on an issue directly related to its transparency and accountability, based on a request we sent in February 2010, and on a lengthy submission made by us (with the enormous work of lawyer Fred Logue advising pro bono).

In 2016 then, we finally took the plunge and started Right to Know (RTK), the non-profit NGO focused on transparency and access-to-information advocacy which now publishes TheStory.ie.
In summer of this year, we won a case against An Taoiseach in relation to accessing records of Cabinet discussions, which you can read about below.

This was all informed by the strong belief that the right to the
freedom of expression depends critically on the right to be informed: the right to information.

Since these are clearly times when an independent free-press has never been more vital, we’re taking things one step further, developing into a fully-fledged, if lean,
non-profit investigative journalism newsroom.

We’ve expanded our team, and in addition to continuing to push for greater transparency and accountability, we’ve got some very exciting projects in the works:

  • We’ll be publishing this monthly newsletter, giving a roundup of what we’re working on and what other journalists in Ireland have been publishing using access to information legislation.
  • We’re launching a podcast, where we’ll be discussing the state of public information journalism, and talking to some of the best hands around about how they go about their work.
  • We’re initiating several special projects, where we’ll be routinely collecting and publicly uploading Ministerial Diaries, Local Authority annual financial returns and asset registries, departmental reports, declared donations, and more…
  • We’ve already begun targeted in-depth investigations based on Freedom of Information requests
  • We’re offering FOI Training sessions and seminars

That’s where we need your help.

We are dedicated to building a sustainable independent public-interest news organisation that can push for greater accountability and transparency, without paywalls or advertising.

That means we need the support of people who think that it’s worthwhile having such an organisation around. We recognise that our appeal is slightly narrow in its focus, but part of our ultimate goal is to build a community of people who share our belief that being informed is a key part of civic and public life, and this kind of work requires public support to operate. We’re also committed to total transparency in releasing our own accounts, and showing our supporters where their donations go, and how they are directly contributing to independent public-interest journalism.

Please consider becoming a donor if you think you can, but if not, stay tuned anyway because it’s all kicking off from here.

 

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You can also keep up to date with our work by following our campaigning work here on the blog as well as Twitter and Facebook.

To see the stories that come FOI-sourced investigative work, go to TheStory.ie  and follow TheStory.ie’s Twitter.

Right To Know wins case against An Taoiseach

Today Right to Know CLG won its case against An Taoiseach in relation to access to records of Cabinet discussions. The unapproved judgment is here and is subject to correction.

We believe this to be a significant victory for access to information rights generally, and for the applicability of EU law when there is conflict with national law, including the Constitution. It is open to An Taoiseach to appeal this decision, but we believe such an effort would not ultimately be successful. The public has a right to know how our Cabinet is discussing Climate Change, and what measures are being taken to mitigate its affects. We also should know if what is being said at Cabinet reflects what is being said in public.

Right To Know will continue to seek to vindicate the rights of citizens to access information, whether it be under national or EU law, including FOI, AIE, GDPR or rPSI.

We would like to thank all of our members for their support. We would also like to thank our awesome legal team: FPLogue Solicitors, Noel Travers SC and Gary Fitzgerald BL.

Why does the IDA want lower income taxes?

Earlier this year a newspaper report indicated that the IDA was lobbying against higher income taxes claiming that high income tax was making it difficult to attract foreign investment and was hitting job creation.

In August last year we submitted an FOI request looking for the analysis to back up these claims and all records of any lobbying in respect of income tax and social security rates in Ireland.

The IDA said that it continually analyses personal taxation and social security and how it influences FDI in Ireland and pointed to various methods including a 2015 survey by KPMG, a report from the Tax Institute and engagements with stakeholders, clients and staff. Specifically IDA undertook research in 2016 to identify reasons why some companies who considered Ireland chose to go elsewhere. According to the IDA, personal tax was among the reasons why they did not choose Ireland.

However, none of the underlying records were identified or released.

All IDA provided were redacted copies of 2017 pre-budget submissions calling on the government to reduce the top rate of income tax from 52% to below 50% and to set out a road map of income tax reductions up to 2020.

Tax rates are a big public interest issue. Taxes are used to fund public services (including the IDA it must be noted). With lower tax rates there must be an objective analysis of the trade-offs that are being made. While nobody necessarily wants to pay more tax – a public body such as the IDA would be expected to be sensitive to the bigger issues at play when it calls for tax cuts. In particular there must be a clear public benefit based on objective analysis so that the IDA position is substantially more than mere lobbying on behalf of big business.

We believe that the IDA must disclose its tax analysis and identify the interests that are driving it to intervene in the public debate over tax rates. To that end we are not satisfied that so much information has been withheld and have now filed an application with the Information Commissioner to review the IDA’s decision to keep the bulk of its information supporting its position on lower taxes from public scrutiny.

The Information Commissioner has invited us to make a submission in early January and we expect him to make a decision shortly after that.

We will keep you posted.

Here is IDA’s response:

Information Commissioner orders UCC to answer questions about Apple relationship

Apple is one of the largest employers in Ireland and certainly the largest employer in Cork.

The US company is at the centre of one of the most significant European State aid cases of all time. This year the European Commission ruled that Ireland’s tax arrangements with Apple were illegal. The result is that Ireland must recover over €13 billion from the American electronics giant in illegally foregone taxes. While the case is now set to be appealed, the finding is considered to be an attack on Ireland’s tax system which is designed to attract foreign direct investment.

Given the importance of the Apple State aid case we were interested in finding out what supports, either financial or otherwise Apple was providing to UCC. Such supports are rarely controversial, large companies often sponsor research and cooperate with universities with a view to attracting graduates. Sometimes a large corporation wants to give something back and will contribute philanthropic money to educational establishments.

Universities and academics are considered to be experts in many areas of technology, economics, and policy, and their views are often reported as independent and objective and reported as such without question.

To maintain that reputation transparency in respect of private funding is important so that the public can know what interests are at play.

While there is absolutely no indication whatsoever that Apple exerts influence on UCC we felt that it was important that any financial or other support that Apple gives to UCC is known given the public controversy over its operations in Ireland.

In September we filed an FOI request with the university looking for full details of the support it received from Apple since 2011. UCC chose not to respond to our request including our request for an internal review. In the end it only responded once an appeal was lodged with the Information Commissioner.

In its response, UCC made contradictory claims. It said its accounting system does not record the identity of persons making payments to it and without offering any assistance it said that the volume of records would be too large for it to handle.

The Information Commissioner has now found that UCC’s justification was inadequate and ordered it to answer the request.

Lobbying the Data Protection Commissioner

Should the Data Protection Commissioner be transparent about lobbying communications she receives?

That is a question we are asking the Information Commissioner to answer in an application we filed last week for a review of a decision of the Office of the Data Protection Commissioner to refuse to grant access to records relating to communications with lobbyists representing large multinational companies and trade associations.

Since May 2015 lobbyists must register and provide information about activities where they communicate with certain public officials – including the Data Protection Commissioner – in relation to development of public policy, preparation of amendment of legislation and award of financial supports involving public funds. The legislation is not intended to prevent or inhibit lobbying, which is an essential part of the democratic process, but to make it more transparent.

We noticed that the Data Protection Commissioner has been lobbied on quite a few occasions by companies such as Microsoft, Yahoo and Accenture and trade bodies such as IBEC and the American Chamber of Commerce. In one instance the lobbying took place in the Irish Embassy in Washington DC and another purported to be “To ensure Ireland remains the global location of choice for US investment”.

Wanting to learn more about this lobbying we filed an FOI request with the Data Protection Commissioner’s Office on 2 September 2016 looking for comprehensive information about each of eight separate lobbying activities.

It is worth recalling that to protect the confidentiality of the Data Protection Commissioner’s statutory functions her office is not fully subject to FOI. Only records relating to the “general administration” of the office are accessible.

Our request was refused on the basis that it did not relate to the general administration of the office since the Commissioner was lobbied about data protection matters. We stressed that communication with a person because she holds public office is not necessarily the same as communications with her pursuant to a statutory functions of that office.

We take the view that, by definition, communications with the Data Protection Commissioner exercising her statutory functions is not lobbying and conversely communications disclosed on the lobbying register must be within scope of FOI.

The Data Protection Commissioner sees it differently. She thinks that lobbying communications – no matter the circumstances – come within her statutory functions and therefore must be protected with such a high degree of confidentiality that the right of access under FOI cannot apply.

The Irish Data Protection Commissioner, as the single European regulator of many of the world’s largest internet companies, plays a pivotal and crucial role in the supervision of the processing of personal information in the European Union. As a matter of principle we believe that lobbying communications between her and vested interests should be transparent to members of the public.

We have asked the Information Commissioner to rule that records of lobbying communication with the Data Protection Commissioner are accessible under FOI and to order her to process our request.

We will update readers on the case as it progresses.

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