GDPR used to keep the public in dark on spending

GDPR should not be used as an obstacle to public information, writes Daniel McConnell.

Labour’s Alan Kelly hit a brick wall when he sought to find details of payments to barristers involved in the €14bn Apple state aid appeal. Picture: Collins
Labour’s Alan Kelly hit a brick wall when he sought to find details of payments to barristers involved in the €14bn Apple state aid appeal. Picture: Collins

NOBODY likes paying tax.

Defined as a compulsory financial charge or some other type of levy imposed upon a taxpayer by a governmental organisation in order to fund various public expenditures, the deal is that a proportion of your salary is taken away at source and in return, you get access to and the benefit of a range of public services.

The quid pro quo of it is that the wider public charge a small group of people, the Government and the civil service, to run the country on our behalf and in return we have a right to know how our taxes are spent.

That is how it has always been since time immemorial. Well, that is up until now.

Events in recent times have revealed that the Department of Finance apparently feels that you and I, the taxpaying public, are no longer entitled to be told how our money is being spent.

A big row kicked off at the Dail’s Public Accounts Committee (PAC) this week after Labour’s Alan Kelly hit a brick wall when he sought to find details of payments to barristers involved in the €14bn Apple appeal.

As reported by my colleagues Elaine Loughlin and Fiachra Ó Cionnaith, the Government has set a “seriously dangerous precedent” in using GDPR to hide the spending of taxpayers’ money.

Introduced by the EU in 2018, GDPR or the General Data Protection Regulation is proving to be the greatest weapon for officials in high office seeking to shut out the public from information which by rights should be in the public domain.

The PAC, on Thursday, heard that it is “shocking” and “a joke” that vital information is now being kept from the public.

The Department of Finance stood by a previous ruling not to release the details of barristers who have been paid more than €2.8m to fight the European Commission’s state aid Apple ruling.

Kelly previously contested the decision of Finance Minister Paschal Donohoe who said he was unable to disclose the identities of legal council which the State has paid for the Apple legal case citing GDPR.

This is despite the fact that Mr Donohoe was able to provide the then up-to-date individual payments to named barristers to Mr Kelly in May 2018, before GDPR was introduced.

Paschal Donohoe
Paschal Donohoe

The PAC then got involved when it wrote to the department about the fees paid to barristers involved in the State’s Apple case.

In response, Department of Finance secretary-general Derek Moran claimed releasing the amount given to individual barristers would be “disproportionate and ultimately potentially unlawful”, we reported.

Moran, in his letter to the PAC, said advice was sought from the Attorney General’s Office as to whether it was possible to release the names of personal data including the names of such counsel in a response to a parliamentary question from Kelly.

“The advices received from the office is that the disclosure of information relating to professional fees paid to named barristers on foot of a parliamentary question is likely to be in breach of the GDPR and the Data Protection Act,” the letter stated.

On the other hand, Moran wrote that the AG advised that it should be possible to provide anonymised or aggregated information regarding counsels’ fees — provided that this is done in such a way as to protect the identity of the individual barristers.

“This approach was adopted and information provided in that format in the response to Deputy Kelly’s parliamentary question and is also updated and provided above. Prior to the receipt of such advice, the names and costs related to specific counsel were released in response to parliamentary questions, but following receipt of this legal advice the release of such information is no longer considered possible,” his letter stated.

Rightly so, all hell broke loose at the PAC.

Kelly said the latest ruling sets a “seriously dangerous precedent” and he will be pursuing it further.

I find this astonishing. The volume of money being spent by the taxpayer and we are being told that we can’t get information on who is being paid. Is this the real purpose of GDPR?

Kelly added: “It creates an extremely dangerous scenario whereby the Government can hide publicly spent money.”

PAC chair and Fianna Fáil TD Seán Fleming hit out at how vital information is being hidden from the public.

“There’s shocking stuff in this. It’s a disgrace if GDPR prevents the taxpayer from knowing how its money was spent,” he said.

Sinn Féin TD David Cullinane said it is “extraordinary” that the public cannot be told how much an individual is earning for taking part in public work.

Fianna Fáil TD Marc MacSharry said the lack of transparency on the costs “makes a mockery of the right of the public to know where its money is spent.

He added that the decision has “implications as anybody who’s a contractor can now claim GDPR as a reason for hiding costs”, before claiming: “As normal, the house always wins.”

The “house always wins” and we the people lose.

This was not the first instance of this.

A year ago, I reported that the same Department of Finance cited GDPR for saying it would no longer release details of pension payments to former senior office holders, like former taoisigh and former presidents.

I confirmed that the Department of Finance is refusing to publish new details of pension payments to former taoisigh such as Bertie Ahern and Brian Cowen this year, despite doing so for decades.

In 2017, the finance accounts showed Mr Ahern and Mr Cowen were both paid €81,209 in ministerial pension payments. The details of pension payments to former ministers and other senior office holders are being withheld because of new GDPR rules, the department has stated.

Kelly and Fleming are correct that this is a very dangerous development.

This is public spending and we absolutely have a right to know how it is being spent.

But the permanent civil service who at the same time want massive pay hikes of up to €105,000 for their top people are arguing that the public is no longer entitled to know how our taxes are being spent.

This was never the intended purpose of GDPR and it is quickly descending into a farce which could have, if left unchallenged, serious and profound negative consequences for the working of our democracy.

This clamping down on the release of public information comes at a time when the Freedom of Information Act has been all but sandbagged by officials who spent their time circumventing it or blatantly acting against the spirit of the law.

On top of all this, Irish media have to operate under one of the most restrictive defamation regimes in the western world.

Limiting the access to information benefits only the establishment which, as we know in this country, has caused and continues to inflict such misery on individual citizens time and time again.

Today they say they can’t release payments to barristers acting on behalf of the State, tomorrow it’s any payment to any individual.

This curse has to be stopped and reversed or we will all ultimately pay the price.

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