Private Papers update: Information Commissioner refuses to re-examine his decision on keeping political expenses secret

The saga of politicians, their expenses and whether they should be considered “private papers” has been rumbling on for almost two years now.

Unfortunately, the battle to have the receipts and invoices of TDs and Senators made public has hit another brick wall and the Information Commissioner has said he will not reconsider his original decision.

Despite what we thought was a strong case put together by myself and with enormous assistance from Fred Logue, the case has been “discontinued”.

The decision also comes despite the Information Commissioner Peter Tyndall’s own personal concerns about the perils of keeping political expenses secret.

In a letter explaining why they were discontinuing the case, the Office of the Information Commissioner said none of the arguments we made “would result in [them] … reversing [their original] decision”.

That now leaves realistically two options: a judicial review, or the possibility that politicians might reform the system themselves.

With the chances of politicians fixing something that benefits only themselves so remote, that leaves only a judicial review.

And that obviously is under consideration … with the reality that it would have to be paid for somehow.

For those who are interested in such things, a copy of the letter of discontinuation from the Office of the Information Commissioner, the original letter seeking review, and a copy of the final email pleading not to discontinue (with some personal details removed) are below.

I would urge all readers again to support Right to Know and the work we are trying to do to pursue transparency in our unnecessarily secretive country.

You can read more about the “private papers” saga here, here and here

Dear Sir,

I wish to make a submission to the Office of the Information Commissioner regarding the decision, which has been made to discontinue the review (Ref. 160177).

You have explained that this decision has been made because the matter to which the application relates has been the subject of another review.

I am opposed to this on a number of grounds:

– The records sought are not the same set of records sought under a previous request and relate to a different year.

– The grounds for refusing access to these records by the Oireachtas are much different to the original grounds for refusal, and include an important new rationale. This rationale is explained in detail in their decision letter and has not been examined yet by the Office of the Information Commissioner.

– The standing orders underpinning the refusal have been amended since the original decision was made by the Office of the Information Commissioner. This also needs to be considered as part of any decision on these records.

– The matter is of significant public importance as acknowledged by the Information Commissioner in remarks made at publication of your annual report. Discontinuation of this appeal means it will be impossible to pursue this matter any further.

– The question has not been addressed as to whether it is within the powers of the Information Commissioner to make a determination of what constitutes “private papers”.

I do not believe Section 22(9)(a)(iii) is a strong enough reason for discontinuation when so many facts have changed since the original request.

Although the request is being made by the same person, the records are not the same, the same reasons for refusal are not being relied upon, and significant changes have been made to the standing orders underpinning that original refusal.

The Information Commissioner has already stated publicly that his decision in this case was made very “reluctantly”.

He has gone as far as to say that the Oireachtas should reconsider whether the decision was justified and consider releasing the records concerned.

Given his remarks, it is clear that this matter is one of significant public interest, and given he has asked the Oireachtas to reconsider their position, I would ask that he reconsider his own position on this matter.

I believe that the Information Commissioner should reconsider this matter, and if necessary state a case to the High Court on the matter.

Yours Sincerely,

Ken Foxe