Data Protection Commissioner Helen Dixon has provided information to this newspaper showing how her office had continued to publish or release details of payments to third parties, including barristers, even after the introduction of GDPR, in sharp contrast to the position taken by the Department of Finance, writes
It was quite the stinging rebuke from the Dáil’s spending watchdog.
While the wider world and TDs were occupied with all matters RTÉ on Thursday, deep in the bowels of Leinster House, a meeting of the Public Accounts Committee (PAC) was under way.
What normally happens is that, every Thursday morning, before the main meeting with witnesses begins, the committee members go through other business including dealing with correspondence from government agencies.
During this week’s session, the Department of Finance came into focus, and not in glowing terms.
In recent weeks, readers of this newspaper would have seen stories about the decision of the department to refuse to disclose the details of several million euros worth of payments to lawyers acting on its behalf in the €14bn Apple tax bill appeal.
The department, despite publishing the information previously, said itcan no longer do so because of new European-wide data protection laws, or GDPR.
Now, Labour TD Alan Kelly, who began looking for these details several months ago, cut a frustrated figure at the PAC and was seeking the backing of his colleagues to pursue the matter.
“I have been asking questions about this since before last summer, a small little bit of context,” he outlined.
“So, previously, under parliamentary questions, this information was given out. Subsequently, when I look for an update on the continuing costs, this was denied to me under GDPR.
I was absolutely shocked that this information was denied to me. I was further shocked that the attorney general advice was that this information can’t be given out.
"! brought this tot he attention of the Public Accounts Committee because I feel that it was necessary to use this forum to try and get some leverage as regards how we’re going to get this information, because it’s frankly a scandal, the volumes of money that are being paid here, but nobody knows.
"Nobody knows where this money is being spent, to whom it’s been given to. For what? And in what detail?
“Furthermore, it also creates a precedent, a worrying precedent, whereby when people that are being paid, if they’re constituted as individuals, effectively, this precedent set by the Government means that if you constitute yourself as an individual for payment purposes, you don’t have to declare, and it won’t be made public.
“So a sole trader who is giving advice or does anything for the State, we will never know how much you’re paid because GDPR will prevent it. This is insane.”
Kelly then went on to cite work done on this story by three journalists at this newspaper which showed how the Data Protection Commissioner and the Information Commissioner have “completely undermined” the department’s position.
He said Data Protection Commissioner Helen Dixon had provided information to this newspaper showing how they had continued to publish or release details of payments to thirdparties, including barristers, even after the introduction of GDPR, in sharp contrast to the position taken by the Department of Finance.
Kelly said: “Subsequent to that, and I have to thank journalistic sources here in the Examiner, to be fair, to three journalists in the Examiner, Danny McConnell, Fiachra O’Cionnaith, and Elaine Loughlin, who have pursued this matter. They have got the Data Protection Commissioner to effectively say that they don’t understand why thisadvice is been issued in what context. And it’s not justifiable. They ran a story on this earlier on this week.
“So, Chair, we have to pursue this matter in the strongest way possible. These are serious, serious public sums. And this will go on for years. There is also a dangerous precedent being set. But it looks like, and from a data protection or data commissioner sorry point of view, that this is not appropriate.
“We really need to pursue this matter, because frankly speaking, this can’t go on. This is against the public interest. It’s against what GDPR is being used for. And we will not know what people have been paid in this case.”
Kelly was not alone. PAC chairman and Fianna Fáil TD Sean Fleming hada right cut off the department too.
“If it’s intended to interpret GDPR to ensure that no payment to any individual can ever be published again, well that is a total misuse and that’s an abuse of the legislation that was introduced to prevent every payment to every individual never being disclosed,” said Fleming.
It was not intended for that. And I will see what’s happening here. It is the legal profession, both in the employment of the State, and the barristers who are working for the State, working together toprotect each other.
"But this is not the intention of GDPR to protect barristers, it is not the intention, and it is an abuse of the system by the legal profession, full stop.”
PAC member Marc MacSharry said the department’s refusal to disclose the information was at best politically opportunistic.
“I think, at best, what we’re seeing is the politically opportunistic use of legislation. It defines life in a dictatorship disguised as a democracy,” he said. “And I don’t know what actions are open to us as a committee. But I think the system, the system is all-powerful.”
MacSharry’s remark about the system being all-powerful is a perfect description of a government department which has an extremely dubious record about openness and transparency.
The PAC’s criticism of Paschal Donohoe’s department cannot be ignored, as the committee members have correctly spotted the latest attempt to withhold important public information.
As Social Democrats leader Catherine Murphy said at the PAC, the GDPR excuse smacks of being another incarnation of the massively overused “commercially sensitive” defence as a means of withholding information.
Today it is payments to barristers,tomorrow, if this goes unchallenged, all payments to third parties by the State will beyond the reach of the public.
As Murphy said, “you can’t have accountability without transparency” and not only does the Department of Finance find itself in conflict with the PAC again, but it is for the second time in conflict with a finding by the Data Protection Commissioner.
The department has, in response to our story, said it is “considering” the comments made by Helen Dixon’s office but as of now it is continuing to rely on the suspect from the attorney general, which of course has not been published.
So far, the only response publicly from the department has come from officials and Donohoe himself has yet to express his view on the matter.
But while he may want to remain loyal to his officials and the AG, he simply cannot continue to stand over the indefensible.