New FOI Act added “significant protection” from scrutiny for expense claims by TDs and Senators

Over a year ago now, I submitted an FOI request to the Houses of the Oireachtas as part of a project I was working on in the RTÉ Investigations Unit called No Expenses Spared.

This FOI request was very specific, looking for copies of invoices and receipts submitted by the small group of TDs and Senators who had been selected for the annual random audit for the calendar year 2013.

Every year, 10% of national politicians have their expense claims audited by Mazars, a professional services and accountancy firm.

And each year, Mazars publish a report like this based on those audits with politicians often asked to pay back money that was not claimed correctly.

Ever since the new expenses regime had been introduced after former Ceann Comhairle John O’Donoghue resigned — the Oireachtas had stuck by a flawed notion that these records could not be sought through FOI.

It was a technical argument which at its simplest relates to how FOI legislation talks about public bodies “holding” records and in this case, the Oireachtas believed they never actually physically held these records.

Instead, their argument was that the records only ever passed from the TD or Senator to Mazars and therefore were exempt from FOI.

Based on the much wider definitions of what “holding” a document involved in other similar cases, I thought this was a bit of a nonsense and so on that basis, I sought an internal review.

This basically means that a more senior member of staff in the same organisation — Leinster House in this case — looks at the FOI request anew.

In the new decision, the Oireachtas again decided that I should not be granted access to these records.

However, this time, the rationale for the decision was quite different and the request was refused on the basis that the invoices and receipts were considered “private papers” of the individual TDs and Senators.

That seemed to me to open the door to their release. It seemed clear to me that the Oireachtas were no longer relying as strongly on the idea that they did not hold the records — when the invoices and receipts were so clearly in possession of a contractor that they had employed.

Equally, the idea that the “private papers” argument could really apply to invoices and receipts that had been issued from local newspapers, or other such businesses, seemed a stretch.

Similar material has, as we know, been routinely released under FOI in the past in Ireland, and of course in the United Kingdom.

Solicitor Fred Logue — who worked closely with Gavin Sheridan on a number of high-profile cases over NAMA and the ECB — helped me in putting together a new appeal, this time made to the Information Commissioner.

The case, at least to me, seemed open and shut.

One of the very first big decisions made by the Information Commissioner in a case involving Richard Oakley, now of the Times Ireland, had covered some very similar terrain.

In that case, then Commissioner Kevin Murphy said that he could not accept that expenses of members could come within the term “private papers of its [Oireachtas] members”.

I will let the new Information Commissioner Peter Tyndall come in here with his decision:

“Against this background, it would seem reasonable to conclude that receipts and invoices for expenses incurred by [Oireachtas] members in the course of the performance of their functions would not ordinarily be considered to be private papers of the members. However ….”

That turned into a big however.

Mr Tyndall said that under the Houses of the Oireachtas (Inquiries, Privileges, and Procedures) Act 2013 — these invoices and receipts were clearly “private papers”.

He explained the inconsistency with the decision that had been made by his predecessor Mr Murphy about political expenses by pointing out that the new FOI Act 2014 — in particular Section 42(l) — contained new provisions.

“It is quite broad in nature,” Mr Tyndall said, “and affords a more significant protection for private papers of members of the Houses than previously existed.”

Quick aside – there is only one group of people who can benefit from this new and “significant protection”.

Mr Tyndall continued to say that it could be argued that this “broad protection” was “inconsistent” with requirements of public bodies to achieve greater openness, strengthen accountability, and so on.

He concluded: “Nevertheless, while it might be expected that information relating to expenses of members of the Oireachtas should be fully transparent and subject to public scrutiny under FOI, I must have regard to the prevailing legislation at the time of my decision.”

The decision to refuse access for me — and the broader public — to even a selection of the expense claims of our elected TDs and Senators was upheld.

By the way, this is the expenses system, which we are repeatedly told is “fully vouched”.

Two questions:

Who benefits from this arrangement? About 166 TDs and 60 Senators.

More importantly though, who introduced this significant extra protection for politicians (already benefitting from an incredibly opaque and non-transparent expenses system) when the FOI Act was being drafted?

You can read the decision in full at the link below:

* I am Mr S by the way in case of confusion and would have had no issue whatsoever with my name being included.

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