Daniel McConnell: The right to know how public money is spent

Daniel McConnell: The right to know how public money is spent
14/05/2020 Independent TD Denis Naughten at Leinster House on Kildare Street, Dublin. Photo:Gareth Chaney/Collins

Do you want to know how your taxes are being spent?

Well, tough. You can’t.

At least, not in certain key areas where the State has decided you no longer have a right to know.

What am I talking about?

For more than a decade, we, the taxpayer, were given the amounts of money former officeholders, former TDs and Senators were being paid by way of pensions.

We were able to find out because they were being paid out of the public purse.

But this week, with the country's thoughts occupied elsewhere, the powers-that-be have decided that the public is no longer entitled to know the pension pay-outs to former TDs and Senators.

The bosses in Leinster House have seized upon a decision made by the Information Commissioner restricting publication of pension payments to former Taoisigh, Presidents, and Ministers, saying it should now apply to TDs and Senators.

As journalist and Freedom of Information advocate, Ken Foxe, noted, this “fundamentally reverses over a decade of transparency and is the latest salvo in the slow evisceration of our Freedom of Information Act by the State".

As Foxe lamented, the ability to reveal that Bertie Ahern was paid €726,000 in pension payments between 2011 and 2015 and that Mary Harney received €649,000 during the same time has now been removed.

Defending their decision, Leinster House has said that the public interest in knowing how/where public money is spent does not outweigh the privacy rights of former public representatives, even though this has never caused an issue for more than 10 years.

To be clear, for more than a decade the individual pay-outs were routinely published but now such a practice is in grave doubt, if the Oireachtas get its way.

The Oireachtas has said it will now only provide figures in aggregate. So we can know €838,710 was paid out in pensions in March but not to whom.

Also, the bosses say we are allowed to know that €1.56 million in lump sums were paid out this year but not who received them.

“We are now left in a perverse scenario where decisions of the Information Commissioner [mission statement: supporting the right to information!] are stripping away what access we, the public, had to records of how our money is spent,” Foxe says.

In its decision about the payments to former officeholders, the Information Commissioner’s Senior Investigator, Stephen Rafferty, concluded that the right to privacy of former office holders outweighs the public interest.

“The question I must consider is whether the public interest in further enhancing that transparency and accountability outweighs, on balance, the privacy rights of the individuals to whom the information relates. In my view, it does not. The information at issue is of an inherently private nature and I consider that its release would involve a significant breach of the privacy rights of the individuals concerned. I find, therefore, that the public interest in granting the request does not, on balance, outweigh the privacy rights of the individuals concerned,” he concluded.

It was an extraordinary decision.

Quite simply, the Information Commissioner has made a bags of this and has set back, quite severely, the cause of transparency and accountability. As Foxe rightly asserted, the shocking decision has blown a gaping hole in the application of the 2014 Freedom of Information act.

It has been perfectly right and proper to know how much former politicians have been getting paid by way of pensions and the decision to end that practice is highly suspect and contrary to the public good.

For those people who would argue that I am overreacting, let me say this.

This episode is merely the latest example of how the State, using the cover of the 2018 data protection legislation known as GDPR, is throwing a cloak of secrecy over the operations of government.

For example, this newspaper as well as the Labour leader, Alan Kelly, campaigned for many months against the Department of Finance’s decision use of GDPR to not to reveal the names and payments paid to lawyers working on its behalf in the Apple Case.

Even when the Information Commissioner and the Data Protection Commissioner concluded such a stance was not in keeping with GDPR legislation, Paschal Donohoe and his officials were not for turning.

“I have emphatic advice from the Attorney General,” was Donohoe’s response to my questions on the matter. When we sought the specific advice, we were told we couldn’t have it.

Only recently, on foot of Foxe’s relentless efforts did the department climbdown and release the details, which were duly published.

But the danger is that the cold hand of GDPR is extending and where will it end?

Even benign requests by TDs are now being shot down because of this hyper-sensitive application of the GDPR rules.

Last week, Sean Haughey, Fianna Fail’s foreign affairs spokesman sought “the names of observers appointed to the most recent election observer roster; if the Data Protection Commission has been consulted regarding this matter having regard to the general data protection regulation; the advice received from the Data Protection Commission".

What he got back from junior foreign affairs minister Ciaran Cannon was contemptible: “The Department of Foreign Affairs and Trade administers and maintains a roster of suitably skilled individuals who are available to deploy on international election observation missions organised, in the main, by the European Union (EU) and the Office of Democratic Institutions and Human Rights of Organisation for Security and Cooperation in Europe (OSCE-ODIHR). For as long as the Department has maintained the roster, the names of roster members have formed part of the public record. This has been done to demonstrate accountability and transparency in the administration of the roster."

“As the 2019-2023 roster exists within the framework of the EU General Data Protection Regulation (GDPR), the Department has given detailed consideration to the legal basis for publishing the names,” he said.

“The list contains the names of persons who volunteered to join a roster without any guarantee of selection for an overseas election observation mission. While it remains my intention that this list is published, this will only happen when I am satisfied that doing so is in compliance with the GDPR and other legal obligations,” Cannon concluded.

This was not the third secret of Fatima being sought, but it illustrates very clearly how dangerously the GDPR legislation is being interpreted by officials and incumbent ministers as a means of frustrating the need for accountability and transparency.

Increasing restrictions in what is publicly available might make the job of civil servants easier, but it also increases the high risk of major mistakes being made and abuses of power taking place.

Independent TD Denis Naughten gave voice to this scourge in his speech when he sought to become Ceann Comhairle back in February: “We now face a greater threat. The general data protection regulation, GDPR, a tool to protect all citizens, is being used to avoid answering legitimate questions from Deputies. This has far-reaching implications for public policy and for the Dáil. Protections for citizens cannot be deployed as barricades against elected representatives doing essential parliamentary work on behalf of the same people."

This week’s decision is not in the public interest, must be overturned and I wish Ken Foxe well in his appeal. Hopefully, the Information Commissioner will actually live up to its mandate and ensure this information remains where it belongs in plain sight for us all to see.

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