In 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”.
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.
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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.
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.
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.
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.
[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.
The houses of the Oireachtas continue to be fertile ground for FOI requests, the latest being the Irish Independent report on access to pornography, dating and gambling websites by members and their staff.
Remember that the Oireachtas is a workplace, so these sites are being accessed at work, by elected public representatives and/or their employees, using publicly funded systems and resources.
An Oireachtas spokesperson provided a speculative, potential defence for any member or staffer found to have accessed inappropriate sites.
She suggested some inappropriate sites may have been clicked on accidentally and stressed that some of the websites may stem from ‘pop-ups’, sites which ‘auto-refresh’ if left open, or as a result of computer viruses. Some sites were incorrectly categorised by the system, she added.
I don’t know what the last sentence means. What system is involved? Who incorrectly categorised the sites?
The spokesperson said that staff who are found to have attempted to access pornographic material are dealt with through formal disciplinary procedures but, of course, the Oireachtas is not willing to release details of those procedures on the basis that it is “personal information”.
“It would be the understanding of individuals that such details would remain confidential. Disclosure may prejudice the effectiveness of internal disciplinary inquiries,” she added.
Two things here. The understanding of the individuals is not a reason for refusing the release of documents, particularly given this information was not provided by the individuals to the Oireachtas per se (an exemption does exist for information given in confidence, but this is not that). Neither, to my mind, does the risk of prejudice to disciplinary inquiries stack up as a reason to refuse documents. It might in the case of ongoing inquiries, but not concluded processes.
The Freedom of Information Act exempts from its scope many records concerning parliamentarians but these records would not fall under those exemptions. It also exempts information obtained in confidence but, again, this information does not meet that definition. So, the refusal to release the records is presumably based on section 37 of the 2014 Act:
[A] head shall refuse to grant an FOI request if, in the opinion of the head, access to the record concerned would involve the disclosure of personal information (including personal information relating to a deceased individual).
However, section 37 includes a public interest clause which would permit the release of such information. It must be assumed that the Oireachtas does not believe the public interest in such information being available outweighs the right to privacy of people who have accessed pornography in their workplace. People who might be public representatives, and have been privately reprimanded for such behaviour. It appears that Oireachtas officials, behaving as employers, can know about this and punish members for it, but not voters.
Indeed, the report says that the Oireachtas would not even release details of the number of people reprimanded. It is difficult to see how statistics or anonymised information like that breaches any duty of confidentiality or right to privacy (if such exists in this situation).
The report does not mention whether the Independent has sought a review of the decision to withhold certain records.