The Department of Finance has again refused to release details of how much it has paid lawyers involved in the Apple tax case and the €14bn tax fund that they manage.
Access to the detail has been refused under Freedom of Information legislation after the department ceased publication of the data last summer, saying it believed it would be a breach of data protection legislation.
It had been hoped that a request using FOI could be used to get a full breakdown of the more than €7m spend and circumvent concerns about GDPR.
However, the department has said it is still “seeking clarification on the interaction between the FOI Act and the GDPR” (General Data Protection Regulation) from the Attorney General.
In its decision, it said said it was “constrained” in what it could publish while it was still consulting with the Attorney General.
“The department continues to be committed to transparency and has not changed its policy in relation to the release of this information,” it said.
It is intended to return to our preferred practice of providing this information at an individual level if we are not legally prohibited from doing so.
Public Accounts Committee (PAC”_ member and Labour TD Alan Kelly has been highly critical of the Department of Finance decision to withhold details of the payments.
The Data Protection Commissioner has also said there appears to be legal grounds for publication of the information and said it was a longstanding practice.
Fred Logue, a solicitor who specialises in information law, said: “I see no difficulty in releasing this information under an FOI request.
“Processing of personal data is lawful if it is necessary for compliance with a legal obligation, for example an obligation to grant access to records under the FOI Act.
“In fact, Section 44 of the Data Protection Act makes it clear that personal data may be disclosed where an FOI request has been made for records containing that information.”
Release of the information was refused on four grounds, not just the fact that the department considers it personal information. That decision is now being appealed.
The Department of Finance said it had received legal advice that “the release of such information would be in breach of the GDPR”.
A letter from the Department of Finance said: “At this point in the process, the department does not have legal advices stating that it is permissible for the Department to release this information. On that basis, it is necessary for [us] to refuse the release of this record until such legal clarification is received.”
It said any release of the information would be “premature” before legal advice is received.
Its letter said: “It is [our] view that releasing this information in response to an FOI at this point would contaminate the future decision-making process in respect of release of this information to the Oireachtas and would not allow the due process already underway to be completed.”
It said also that release would “hamper the inquiry process” and that it “would undermine the accountability mechanism” of the Oireachtas and the PAC, which has been pushing for publication as well.
The department also said the public interest in “preserving the privacy of the third parties involved” outweighed the public interest in releasing the record.