Right of access to public data a crucial tool in democracy

After three years of asking, the famous Trichet letter finally saw the light of day, write Gavin Sheridan and Fred Logue.

Right of access to public data a crucial tool in democracy

CORRESPONDENCE that was until recently considered so sensitive that it would have threatened eurozone monetary policy and destabilised the Irish economy has finally been published.

According to the European Central Bank — which resisted requests for publication including the recommendation of the European Ombudsman — the contents of correspondence exchanged between its then president Jean Claude Trichet and former minister for finance Brian Lenihan in the lead-up to the Irish entry into the 2010 bailout had to remain top secret.

It has been long suspected that the ECB threatened Ireland with severe consequences if it didn’t accept a bailout and the necessary austerity measures needed to support a recapitalisation of the Irish banks. The ECB has always maintained that Ireland entered the bailout voluntarily but refused to release the correspondence containing the exchanges between it and the Irish authorities at the time.

While in the end the documents were leaked to The Irish Times in advance of the official release yesterday, the saga of how we tried to obtain the key November 19 letter was a long and onerous one.

It began in late 2011 when we sent requests for information to the Irish Department of Finance and the ECB seeking communications between the ECB and the department, dating from 2010.

One request was under the Irish Freedom of Information Act, the other under the ECB’s own access to documents regulation. We reasoned that we could increase the chances of getting more documents if we utilised different information laws, in different jurisdictions.

In late 2011 we received our first response to the requests we had made. The Department of Finance refused to release the communications on the grounds that it would prejudice international relations with the State. We appealed to a more senior member of staff at the department for reconsideration where our request was once again rejected on the same grounds.

The next stop was the office of the then information commissioner, Emily O’Reilly. Citizens have the right to appeal to the commissioner in the event that a dispute arises on access to information. The process of reviewing that decision in the commissioner’s office began in early 2012 though a decision was not made until December 2013, two years later. Ultimately the appeal failed, and access to the letter was refused.

However, our parallel request to the ECB under its access to documents regulation was also under way, using the website asktheeu.org, a free platform for citizens to publicly make access to information requests to European public bodies.

The ECB responded to the request by releasing one other letter from November 2010, but not the critical November 19 one.

The reason it could not release the letter, it said at the time, was because to do so would “undermine the protection of the public interest as regards the monetary policy of the Union, and as regards the stability of the financial system in a Member State”.

We then appealed this refusal to the ECB in what’s called a “confirmatory application”. The matter had now escalated to the desk of ECB President Mario Draghi himself, who responded to us, again refusing access to the letter.

Once that refusal was received, we then appealed the issue to the European Ombudsman.

Ultimately in March of this year the new ombudsman, former Irish information commissioner Emily O’Reilly, who had refused our access request to the Department of Finance, found that the ECB was justified in refusing access in 2011.

However, O’Reilly, who had seen the letter, recommended that Draghi order its release in the interests of transparency since the threats to the eurozone had receded. However, the ECB held firm maintaining that even in March 2014 release of the letter could undermine eurozone monetary policy and destabilise the Irish economy. As a concession, Draghi agreed to review the matter later in 2014.

It was that three-year process that led directly to the release of the documents yesterday.

So what do we know now? We know that in late 2010, the Irish economy was coming under severe pressure from the imminent collapse of several Irish banks, notably Anglo Irish Bank. In one of the letters released this week dating from November 19, 2010, there is a clear statement that the ECB would not authorise measures to support Irish financial institutions unless certain conditions were met by the Irish Government.

Was that a threat? The ECB says no but the public can now make up their own minds about whether or not the ECB “bounced” Ireland into the bailout, as Brian Lenihan claimed.

The release of these documents shows how important it is for citizens to access information held by public bodies. Without access to information laws, public bodies can dodge accountability through carefully crafted communication strategies. As the “Trichet letter” saga shows, a public right to know gives citizens a powerful tool to find out what is really going on.

Clarification: It was stated above that the Irish Information Commissioner ruled on the issue of the "Trichet letter" in late 2013. An impression may have been given the Commissioner at the time was Emily O'Reilly. It was in fact her successor Peter Tyndall who decided on the issue. 

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