Gavin Sheridan – Right To Know

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.

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:

Right To Know granted leave to bring judicial review proceedings against An Taoiseach

Good afternoon. Right To Know CLG was today granted leave to seek a judicial review of a decision by the Department of An Taoiseach to refuse access to certain documents. We are seeking a Judicial Review of an internal review decision by the Department of An Taoiseach made under the Access to Information on the Environment (AIE) Regulations 2007 – 2014.

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Timeline

On 8th March 2016 we instructed Right To Know’s solicitors to make a request to the Department under the AIE Regulations for access to all documents which show Cabinet discussions related to Ireland’s greenhouse gas emissions from 2002 to 2016.

The Department sought to extend the deadline to reply on 24 March 2016 under Article 7(2)(b) of the AIE Regulations. On 5 May 2016 the Department issued a decision listing 31 relevant documents but refusing access to all of them apparently on the grounds of cabinet confidentiality based on Articles 8(b) and 10(2) of the AIE Regulations. The Department also referred to the previous High Court case of An Taoiseach v Commissioner for Environmental Information [2010] IEHC 241.

We then sought an internal review of this decision and on 10 June 2016 we submitted a detailed document supporting our view that the request should be granted in full. The submission noted that the clear scheme of the EU legal order, as set out in a series of seminal judgments of the Court of Justice of the European Union (the “CJEU”), meant that, where there was a conflict between directly effective EU law and national law, EU law took precedence.

The submission also pointed out that this means that a national decision-maker, including an administrative decision-maker, must disapply national law which conflicts with EU law, no matter the source of the national law in question. Therefore, our request needed to be considered as a matter of EU law first. This was not done by the Department.

The submission also outlined how Article 28.4.3 of the Constitution and certain parts of the judgment of the High Court in An Taoiseach v the Commissioner for Environmental Information were incompatible with EU law and could not be applied during the internal review.

We received an extremely short ‘Internal Review Decision’ dated 27 June 2016 from the Department upholding the original refusal.

In the ordinary course of events this would be where the requester would appeal to the Commissioner for Environmental Information. On this occasion we decided not to do so. We do not think that an appeal to the Commissioner could give us a remedy. The central issue in this case is the jurisdiction of administrative bodies to disapply national law when there is a conflicting EU law. As far we are concerned the principles flowing from the case-law of the CJEU oblige all administrative decision-makers in the European Union, including the Department, to disapply national law in such instances. This was not accepted by the High Court in An Taoiseach v Commissioner for Environmental Information.

In that case, the Commissioner for Environmental Information initially appealed that finding to the Supreme Court but then withdrew that appeal in early 2014. It is clear, therefore, that the Commissioner feels that he is bound by the High Court’s decision.

Therefore it is highly likely that the Commissioner would not have been able to grant us access to the documents, but would have had to refuse access on the very same grounds that it was refused on two occasions by the Department, necessitating either a statutory appeal on a point of law of that refusal under the AIE Regulations, or a judicial review.

This case raises fundamental issues in relation to the relationship between national law and EU law, in addition to fundamental issues about transparency of Irish Government decision-making in relation to environmental matters.

We sought leave to appeal last month and after reserving judgment Mr Justice Fullam today granted our application for leave to bring a judicial review, seeking:

An order quashing the internal review decision of the Department
A declaration that the decision did not contain any or any adequate reasons but merely stated the conclusions of the internal review
A declaration that the Minister for the Environment when transposing the AIE Directive wrongly excluded an entire class of documents, namely records of Cabinet discussions, from the scope of the right of access.
A declaration that the Minister for the Environment was not entitled to narrow the scope of the broad right of access to information on emissions into the environment.

The judge found that we met the standard for judicial review, that we had an arguable case and that if we were ultimately to succeed we must overturn the decision by Mr Justice O’Neill in An Taoiseach v Commissioner for Environmental Information. The judge also found explicitly that we had chosen the right course of action, and that judicial review is the appropriate remedy in our case.

Right To Know CLG is represented by:

Noel Travers S.C.
Gary Fitzgerald B.L.
FPLogue Solicitors

FAQ

What’s this all about?

Ireland has a long tradition of secrecy in relation to discussions at Cabinet. Article 28.4.3 of the Constitution makes all discussions at Cabinet secret. However it’s well established that in the case of conflict between national and EU law, EU law overrides domestic law, including the Constitution. Under the EU law that implements the information provisions of the Aarhus Convention, there are no specific exemptions for government discussions, however when Ireland transposed the Directive into Irish law we added a specific provision for excluding records of Cabinet discussions.

This issue arose before. In a previous case the High Court ruled that Cabinet discussions were exempt – we disagree with this view. Right To Know takes the view that it’s not possible to make this exclusion, and in any event, public bodies are obliged to apply EU law directly where there’s a conflict with domestic law – including the Constitution or decisions of the courts.

We sought Cabinet records related to discussion concerning carbon emissions over a certain time period. We made the argument that the State was obliged to release this information.

What’s this got to do with FOI?

Nothing.

FOI, or Freedom of Information, relates to a specific Irish law called the Freedom of Information Act 2014. This case does not involve that law at all, but rather refers to a separate law that stems from a European Directive, which itself stems from the Aarhus Convention. This law is called the Access to Information on the Environment Regulations 2007-2014.

Why is this issue important?

There’s a few inter-related issues that will be raised in the coming proceedings. Some relate directly to environmental issues, while others have broader implications:

What are the obligations on public authorities to directly apply EU law, in the case of conflicts with domestic law?
Is Cabinet confidentiality a ground for refusing access to environmental information?
Does Cabinet confidentiality narrow the broader right of access to information on emissions into the environment?
What are the obligations on public authorities to state reasons?
What are the obligations on public authorities to apply a public interest balancing tests on all decisions where an exemption is engaged?

How long will the proceedings take?

We don’t know. But we believe the process *should*, by law, be timely – per Article 9 (4) of the Aarhus Convention.

What’s the next step?

We will back in court on November 21st, 2016. And we will update everyone then. In the meantime follow our Twitter and Facebook accounts.

Are you making court documents available?

We want to be as open and transparent as possible about this process. Once documents are opened in court we will make them available as soon as possible on this website. We want to inform everyone about not just their rights, but also how we are seeking to vindicate those rights.

What can we do to help?

We need your support, as ever. We are seeking 50 new supporters (at €50/year) to help us in all of our efforts, including this case.

Please go here and sign up.

Right To Know complaint to Aarhus compliance committee

Last month Right To Know instructed FPLogue solicitors to write a complaint to the Aarhus Convention Compliance Committee (ACCC) in Geneva – the UN body empowered to oversee implementation of the Aarhus Convention. The complaint forms part of Right To Know’s objective to push for greater public rights to access information.

The complaint concerns the overwhelming decision-making delays both from the Office of the Commissioner for Environmental Information (OCEI) and from judicial processes in Ireland in relation to requests for access to environmental information, and any appeals that result from those requests. These lengthy delays are, we believe, a breach of the Aarhus Convention which Ireland ratified in June 2012.

You can read our complaint here.

If you support our work, please subscribe.

What is the Aarhus Convention?

The Aarhus Convention is pretty radical – which is why we like it. We strongly encourage people to read the Convention in full. The Wikipedia definition is good:

The UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, usually known as the Aarhus Convention, was signed on 25 June 1998 in the Danish city of Aarhus. It entered into force on 30 October 2001. As of March 2014, it has 47 parties—46 states and the European Union.^[1] All of the ratifying states are in Europe and Central Asia…

The Aarhus Convention grants the public rights regarding access to information, public participation and access to justice, in governmental decision-making processes on matters concerning the local, national and transboundary environment. It focuses on interactions between the public and public authorities.

What is the ACCC?

Under Article 15 of the Convention, the Meeting of the Parties (ie countries party to the Convention), established a compliance committee which among other things accepts complaints from members of the public or NGOs concerning non-compliance by States with the terms of the convention.

The ACCC is composed of independent lawyers acting on a pro-bono basis. They make recommendations on compliance or non-compliance based on the complaints they receive, or on their own initiative. As the UN guidance states:

The compliance mechanism of the Aarhus Convention is unique in international environmental law, as it allows members of the public to communicate their concerns about a Party’s compliance directly to a board of independent experts, the Compliance Committee, who have the mandate to examine the merits of the case. However, the Committee cannot issue binding decisions, but rather may make recommendations either to the MoP, or, in certain circumstances, directly to individual Parties.

The committee makes recommendations to the MoP, and in turn the MoP can enforce the Convention through mechanisms, such as:

a) Provide advice and facilitate assistance to individual Parties regarding the implementation of the Convention;

b) Make recommendations to the Party concerned;

c) Request the Party concerned to submit a strategy, including a time schedule, to the Compliance Committee regarding the achievement of compliance with the Convention and to report on the implementation of this strategy;

d) In cases of communications from the public, make recommendations to the Party concerned on specific measures to address the matter raised by the member of the public;

e) Issue declarations of non-compliance;

f) Issue cautions;

g) Suspend, in accordance with the applicable rules of international law concerning the suspension of the operation of a treaty, the special rights and privileges accorded to the Party concerned under the Convention;

h) Take other non-confrontational, non-judicial and consultative measures as may be appropriate.

What is the issue you are complaining about?

Delays. As we state in our submission, there are lengthy delays in getting decisions from appeals bodies in Ireland. In the case involving us and NAMA, it took more than 5 years for a final decision to be issued, and even then it was still only a preliminary matter. We believe this to be a breach of Ireland’s obligations under international law – Article 9 mandates that parties to the Convention must:

… provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive. Decisions under this article shall be given or recorded in writing. Decisions of courts, and whenever possible of other bodies, shall be publicly accessible.

We believe Ireland to be in breach of the “timely” component of the Convention – the focus of our complaint. We believe Ireland is obliged to remedy this lack of timeliness in appeals processes related to environmental matters.

Why is this important?

Time is extremely important when it comes to accessing information, and specifically information in relation to the environment. Delays in appeals have knock-on affects on how civic society understands environmental issues, or acts on environmental issues that are time sensitive (think pollution or emissions for example).

What will happen now?

The ACCC has accepted our communication (2016/141) and we will participate in the upcoming process. The communication will now be reviewed for admissibility by the Compliance Committee at its 54th meeting to be held in Geneva between 27 and 30 September and if it is found to be admissible, the Committee will invite comments from Ireland and others and will investigate the allegations of non-compliance.

Shifting gear – we need your help

With the 2016 Election over, we believe that people who did or indeed did not exercise their franchise may want to see if we can build something to keep an eye on the decisions of those who were just elected. All too often democracy is seen through the lens of voting, and not on the five years in between.

Back in 2009, TheStory.ie was founded as an experiment, by myself (Gavin Sheridan) and by journalist Mark Coughlan (who now works at RTE’s Primetime).

It was around the time of the MPs expenses scandal in the UK, and we took a specific interest in a few areas which were quite nascent at the time: Systematic FOI requests, FOI advocacy, data journalism, data vizualisation, document conversion, document management and legal appeals processes.

TheStory.ie ran on a simple principle – that with some good will, and some hard work, we could move the needle on improving the state of FOI, transparency and of investigative journalism in Ireland. Since 2009 it has run as an entirely pro bono site, working on the efforts of a few who worked entirely without compensation. At the very beginning, you, our audience asked if you could help our efforts – and to that end you donated funds on and off over the years.

For a site run entirely by volunteers (at various times, Gavin Sheridan, lawyer Fred Logue, Mark Coughlan, Ken Foxe) we haven’t done too badly:

1) NAMA were defeated in the Supreme Court in 2015 on an issue directly related to its transparency and accountability, based on a request we sent in February 2010, and on lengthy submissions made by us (with the enormous work of lawyer Fred Logue advising pro bono). NAMA also lost two cases in the High Court, one of which was solely based on our direct submissions to the court.

2) The “Trichet Letters” to Brian Lenihan were ultimately released by the ECB following a three-year long appeals process initiated and pursued by us, via the ECB and the EU Ombudsman. We also were first to publish the letter Ireland sent formally seeking a bailout.

3) We were the first to obtain large datasets under FOI, starting with the expenses database of the Department of Tourism, followed by multiple expenses and expenditure databases. These databases contain line item details in the billion of euros, never before seen in publicly available data. Others have since replicated these techniques.

4) We pursued other appeals via the Information Commissioner – achieving results on the definition of personal information, and on the definition of environmental information.

5) We vigorously argued against FOI fees, in particular the upfront €15 fee. We made submissions to the Oireachtas committee during the drafting of the FOI Bill 2014, and rang the alarm when we noticed the Government trying to increase fees via a Committee Stage amendment. The Government later removed the upfront fee altogether, an important step in the right direction.

6) We scanned and published legacy reports and investigations into malfeasance and corruption, including the Beef Tribunal report, which had up to then never been available online.

We have also tried to assist many, many people on their requests – though we often have limited time ourselves. Some might say we have earned a certain amount of notoriety for many of these activities, and if that’s the case then we are doing something right.

Over that time many people have contributed documents to us, many people have tipped us off on things to check or to FOI, and journalists at most Irish newspapers have sent us copies of FOI releases for publication, once they had their own stories complete. This all contributed to building a community of people interested in their rights to access information, in data journalism, and in the principles of good journalism.

But a website like this, run entirely on good will by volunteers in their spare time can only last so long. We have therefore decided that rather than shut it down and get on with our lives – we will try and move the needle even further.

But to do so we need your help.

Our proposal is this: start an organisation on a not-for-profit basis, which is both a media outlet and a transparency organisation. We are calling it Right To Know.

TheStory.ie will continue, but will become the publishing arm of Right To Know. And for the first time since we started doing this work, we will very deliberately be asking you for support – on a membership basis, initially per year.

Clearly, the more members we have the more ambitious we can be – but our objective is to build a self sustaining organisation, without ads, without paywalls, funded entirely by its supporters. And the mission? To act as a watchdog, an advocate, an investigator, a trainer, and a partner to other NGOs and the media.

We are inspired by the good people at The Ferret in Scotland, Dossier in Austria, Correctiv in Germany, De Correspondent in The Netherlands, Access-Info in Spain, Digital Rights Ireland, The Detail in Northern Ireland, ProPublica in the United States – and indeed we have met many of the people behind those organisations over the years.

We believe we can do the same and more for Ireland – through a combination of member support and occasional fundraising around specific efforts. If philanthropic funds are available, we will pursue that too. So with your membership support, what could we do? Well with almost no overheads besides possible staff in the future, we think we could do quite a lot:

100 people donating €50 a year? €5,000 can help us get established and organise. And this is where we want to start.

So here is the question: are you with us? We have an initial group of people – some of the best journalists we know to help us get started, and we will be adding to this list over the coming months. Gavin Sheridan and journalist Malachy Browne are directors, and journalists Ken Foxe, Karrie Kehoe and Tom Lyons are helping us get off the ground.

If we are completely transparent about how the funds are spent (and we certainly will be), and come to escalate our efforts, could we get to 1,000 people, or higher? By way of comparison 13,064 people gave their first preference to Michael Lowry in the recent election. Can a similar number of people “vote” for watchdogs?

If you want to support us, you can join on a yearly basis. In the future we will likely fundraise around specific issues, but our priority is to build a loyal membership who support our work.

Right To Know is represented by FP Logue Solicitors.

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[Cross posted to TheStory.ie]