Stay tuned!

After months of neglect I hope to have updates here soon, in particular:

  1. Three FOI requests have been lodged this morning on a variety of issues.
  2. A subject access request under the Data Protection Acts following on from the RTÉ Big Big Movie FOI.
  3. Most importantly, Episode 3 is in pre-production (which is to say that the subject has agreed to participate).

The guest for Episode 3 is someone who is using FOI cleverly, with results, and who also has a strong interest in privacy. The episode will cover the exciting opportunities presented by FOI & data protection but also, perhaps more so, its challenges.

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Stay tuned!

McDonalds, RTÉ & McSecrecy

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Jack Chambers TD is in the news today criticising RTÉ for having McDonalds as sponsor of its Big Big Movie.

Mr Chambers said the national broadcaster could be in breach of its standards, adding that the sponsorship could encourage unhealthy eating habits among children.

“It is remarkable that RTE are allowing McDonald’s to sponsor this slot, despite the ban on high-fat, salt and sugary foods during children’s programming,” he said.

“As their own website details, this programme slot has a quarter-of-a-million viewers including a 31pc average share of viewing for kids.

“Sponsorship can reach 85pc of households with children.

Now, some are already complaining that only a Nanny State would prohibit such sponsorship but it is remarkable for a State owned broadcaster to sell the sponsorship of one of the main child/family television slots in the week to McDonalds.

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What has interested me about the story is RTÉ’s approach to freedom of information when dealing with the issue. A few months ago, I was watching the Big Big Movie and was surprised to see McDonalds as sponsor.

I suspected it was not allowed. I was interested to see what I could find out about the arrangement so I submitted an FOI request. Here’s the sequence.

  1. On 4 April 2016 I requested a copy of all records “relating to the arrangement between RTÉ and McDonalds involving the sponsorship by the latter of the “Big Big Movie” screened by RTÉ on Saturdays weekly”.
  2. On 6 April 2016 an acknowledgement letter was sent by RTÉ by email. Strangely, I got that email but it did not appear in my inbox at the time which may have been due to an issue with Gmail. At any rate, it immediately sought an extension to 1 June 2016 on the basis of general workload issues.
  3. Without the extension I should have received a response by 2 May 2016. I hadn’t read the extension letter and heard nothing more from RTÉ. The Freedom of Information Act says that if you do not receive a decision from an FOI body your request is deemed to have been refused, and you can seek an internal review.
  4. I wrote to RTÉ on 11 May 2016 seeking an internal review. I received no response.
  5. I submitted an application for review (an appeal) to the Information Commissioner on 15 June 2016. The Commissioner’s office essentially treated the application as an opportunity to prod RTÉ, who then issued a decision letter (months late) refusing my request in full.

RTÉ’s decision letter provided no schedule or description of the documents they hold (which is standard in FOI decisions). RTÉ decided that every single document they hold relating to the McDonalds sponsorship is exempt from release under FOI because (a) it includes information given in confidence and/or (b) it is commercially sensitive.

It is difficult to see how the “information received in confidence” exemption could apply to this situation. Commercial sensitivity is a frequent basis for refusals and is widely abused by FOI bodies but it is unsurprising to see it invoked by RTÉ. Their reasoning, however, is that their competitors don’t have to release commercially sensitive information so they should not. By applying it to every record held though, RTÉ has effectively carved itself out of the FOI legislation.

For now, despite RTÉ failing to deal with the initial request and ignoring it until prodded by the Information Commissioner, I have to again seek an internal review and will be doing so. RTÉ bought themselves at least two months by failing to issue a decision on the request within the statutory timeframe.

Whatever one’s views about Nanny States and McDonalds, the level of secrecy RTÉ is attaching to the issue is itself a story.

McDonalds, RTÉ & McSecrecy

Episode 2: The Right to Know

GavinIn the second episode of Adventures in Information, I talk to Gavin Sheridan.

Gavin is a journalist whose adventure in information has taken him from using freedom of information as part of the day job to setting up TheStory.ie, which broke stories using FOI, and on to being director of innovation at Storyful.

More recently Gavin has set up Right To Know, an NGO which has an interesting mission to make FOI requests and deal with reviews and appeals itself but also to assist individuals, organisations and journalists in dealing with FOI.

Gavin shares his experience and views on FOI and also explores the need for a high-level view on access to information – why freedom of information is important, and how information “needs to be liberated”.


Episode Links

Episode 2: The Right to Know

Episode 1: The POD

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In this first episode of Adventures in Information, I talk to Simon McGarr, a solicitor and part-time data activist about a new government mega-database that received surprisingly little attention – from those that created it, and from almost everyone else.

This is about freedom of information, but also children, education, database creation, data protection and even child abuse claims.

You might be surprised to learn what information about our children the Department of Education wants to keep, how long it wants to keep it for and, maybe, why.

See below for links to things discussed in the podcast, and please leave any thoughts, questions or further links you might have in the comments.

Please also subscribe to the podcast in iTunes or using this RSS feed. And if you have listened, feedback is welcome with your rating and comment on the iTunes page.

Episode links

Episode 1: The POD

Insurance industry talking points for government minister

The Irish insurance industry has been working hard in recent months to pin the blame for premium increases primarily on legal and compensation costs, rather than the other many industry-specific issues it faces.

I made an FOI request to the Department for Transport, Tourism and Sport on lobbying by the industry on premiums and costs. An email was released from a public relations company to the Department, suggesting what the Minister might address in his remarks at an industry event.

The industry’s representative body is Insurance Ireland, represented by Q4 Public Relations. Last year, Insurance Ireland were organising a dinner to be held on 29 September 2015 at the Merrion Hotel, with Minister for Transport, Tourism and Sport an invited guest and speaker. The email concerned the structure of the event but also indicated what the industry would like the Minister to talk about.

Q4 email

Department officials prepared a briefing note for the Minister which outlined the industry’s concerns and included other commentary, including the view of the Injuries Board, which has repeatedly called for the insurance industry to share the information underpinning their claims.

ib comments

In the Minister’s prepared speech, he addresses the issue of increased premiums and calls on the industry to establish a database of insured drivers and other matters. He does not directly address the issue of compensation levels or legal costs. No record was released of any note of the informal discussions that might have taken place.

Initially the Department sought that this FOI request be withdrawn on the basis that the Department has a limited role in the area of motor insurance. This is despite, for example, the Minister being party to the Mibi agreement that covers claims involving uninsured or untraced drivers.

Eventually the request was processed and documents were released. From the decision letter, it appears that all documents held have been released. However, no documents were released concerning two recent entries on the Lobbying Register involving the AA (informal meeting; communication with Department following press release). In addition, given recent court judgments involving the Mibi and the Setanta liquidation it is surprising that no records have been released about that case.

Insurance industry talking points for government minister

Why would the State take such “convoluted steps” to conceal the operation of evidential breath testing systems?

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Top secret

The Supreme Court decision in Oates v. District Judge Browne yesterday is primarily about the right of someone accused of drink driving to inspect the specific machine used to take their breath alcohol sample. But Mr Justice Hardiman’s judgment has many interesting things to say about the State and its attitude to freedom of information.

Hardiman J was concerned about the right of a defendant to a trial in due course of law.

[N]ot only is there no right to inspect or see relevant documentation [about the operation of evidential breath testing machines] provided in the Irish Statutes but the system of analysis, of approval of apparatus for analysis, and documents and records relating to such apparatus and analysis have been deliberately and, it seems, conclusively, excluded from the category of document and item to which a citizen is entitled to have access, even if he has been charged with a criminal offence using the breath specimen procedure.

He goes on to outline a remarkable episode in Irish freedom of information. In 2008 a Mr H was being prosecuted for drink driving and made a request under the then Freedom of Information Acts to the Medical Bureau of Road Safety for all documentation pertaining to the receipt, analysis and certification of urine samples provided by him to the Gardaí. The MBRS refused this request on the basis that the documentation “could be the subject of litigation in alleged criminal offences before the court”.

The Information Commissioner did not accept the MBRS’ reasons for refusing access and directed that the documentation sought be released to Mr H. The Commissioner was influenced by the fact that a court cannot make a disclosure order against the MBRS in criminal proceedings.

[W]ithout FOI, the MBRS would be generally unaccountable either to the courts or to the public with respect to its functions under the Road Traffic Acts and … there would be no legal recourse to records relating to its forensic investigative role even in the event of suspected irregularities.

Crucially, the Commissioner determined that the MBRS had not established what harm would result from releasing the documents.

I see nothing in the contents that could reasonably be expected to prejudice or impair any of the law enforcement and public safety measures variously protected under [the relevant exemptions in [the FOI Acts]. For instance, the records do not involve any risk of witness intimidation or reveal any sensitive information regarding investigative methods. On the contrary, the records merely show the manner in which the applicant’s urine specimen was handled and analysed. I do not think that I would be revealing exempt information in violation of the FOI Act by observing that page 7 of the records includes a note in the margin initialled by an analyst. However, the significance, if any, of the note has not been identified by the MBRS in any of its submissions.

In yesterday’s judgment, Hardiman J referred to the Commissioner’s decision in Mr H. It is notable that his comments about FOI are headed: Nothing available on FOI.

The effect of [the decision in Mr H] was negatived by statute with extraordinary and unusual speed. The Commissioner’s decision was given on the 15th July, 2010. The State then proceeded to promulgate the Road Traffic Act 2010, which came into operation on the 9th August 2010, twenty-five days later, during a Parliamentary vacation. The effect of this was partially to exclude the Bureau from the FOI Acts.

He describes the current position on FOI requests to the MBRS as one “governed in an opaque and convoluted way” – in particular by the manner in which the Freedom of Information Act 2014 is drafted to deal with the MBRS.

[T]he Bureau is in fact exempted from Freedom of Information by a process so contrary to transparency and to the ordinary use of language as almost to defeat non-professional enquiry.

His journey through the relevant provisions in the Act is interesting and is an entertaining discourse on bad legislative drafting.

The difficulty in establishing the liability or otherwise of the Bureau under the FOI Acts arises from the use of multiple exceptions and of double negatives on which the draftsman would have to be congratulated if it were his object to make the provision opaque and inaccessible. But the effect of it is that the Bureau is outside the scope of s.6 “insofar” as the matters specified are concerned. The matters specified include anything that might be of the remotest interest to a person charged with [a drink driving offence], who was concerned to “contest” the Bureau’s analysis, or analysis of apparatus approved by it …  It is not clear to me why, assuming the legislature to be confident in the operation of the [evidential breath testing] system, such convoluted steps have been taken to conceal its operation even from a person directly affected by it.

Hardiman J agreed with the Information Commissioner’s comments in Mr H, but to no avail given that the Commissioner’s decision was overruled by the Road Traffic Act 2010 (and repeated in the Freedom of Information Act 2014).

So, the MBRS remains outside of the scope of FOI in so far as access to evidential records is concerned. With yesterday’s Supreme Court decision in Oates someone accused of drink driving still has the right to seek inspection of the machine used to carry out a breath alcohol test but the Court could do nothing about the FOI legislation.

Why would the State take such “convoluted steps” to “conceal” the operation of the evidential breath testing system? Obviously, we cannot know. But Hardiman J does, elsewhere in the judgment, point to the fact that evidential testing is not always reliable. As he suggests: if the breath alcohol testing system is reliable, why refuse access to records generated by it?

If it is not reliable, the State is preventing defendants in criminal prosecutions, along with journalists and members of the public, from finding out.

Why would the State take such “convoluted steps” to conceal the operation of evidential breath testing systems?