Last week we got the news that Emily O'Reilly, the Information Commissioner, had decided to rule against The Sunday Times on an important Freedom of Information request. A copy of the decision should be up on the Office of the Information Commissioner's (OIC) website soon but here is the copy I was sent.
We were seeking the release of two documents which detailed what was said at the meetings of September 29/30 2008 which led to the government announcing it was guaranteeing the entire Irish banking system.
This Information Commissioner ruling was disappointing as Sean Garvey, a senior investigator in the OIC, had recommended that the two documents be released, with some exemptions. Our story on this from last weekend is here. I'm putting the preliminary decision from November up here (complete with my scribbles).
Garvey's preliminary finding makes for interesting reading as it gives us a flavour of what's contained in the two memos. But it also shows the Department of Finance's contempt for the FOI process and it's desire to keep the behind-the-scenes details of the bank guarantee as secret as possible, for as long as possible.
Our original request for these documents was made on October 3rd, 2008. Within four weeks Finance had replied with a big bundle of paperwork. Unfortunately the documents released were useless. They consisted of speeches made by Brian Lenihan after the guarantee was announced and a series of PQs answered in the Dail. They basically sent us a load of documents that were already in the public domain. A complete waste of paper.
I instantly sent in the €75 appeal cheque and asked the Department to stop taking the michael. We hadn't asked for public documents created after the guarantee. We wanted the internal notes, memos, emails etc that would shed a little insight in to how the guarantee meetings of September 29/30 came about.
The appeal was rejected by the Department (a month past the deadline) so we went to the Information Commissioner. Finance are usually one of the better departments for handling FOIs so already I was miffed by its attitude on this request. Usually a department will supply a schedule of documents with each response to an FOI request. This allows you to see how many documents were refused outright and what FOI exemptions were used. In this case Finance wouldn't even provide a schedule, citing the sensitivity of the documents, so we didn't even know what kind of documents, or how many, were being refused.
After a few months with the OIC we were told that the Department had finally provided a schedule of records and the OIC was working its way through them to see if they were truly exempt. It was mentioned that all the documents provided by Finance were created after September 30th.
I asked how was this possible? Surely there must be some official record of the celebrated midnight meeting where the top brass in AIB and Bank of Ireland convinced the government to guarantee all bank deposits? No, said the OIC. Not according to Finance anyway.
I asked them to check again. Surely there must be an email or record of a phone call or something? Sure enough, the OIC checked with Finance and the department suddenly found two "hurriedly written" notes which were contemporaneous accounts of what was said at two meetings held that night. Bingo!
Finance (finally) gave these records over to the OIC last May and O'Reilly's office proceeded to go through them. Finance submitted that the records should be withheld from release because of, well, just about every FOI exemption in the act.
Some of the exemptions requested by Finance are hilarious. The OIC dealt with them in an impressive and clinical fashion.
For instance, Finance said that by releasing part of the records of the meetings it would provoke speculation about what was in the withheld parts of the document. Well isn't there speculation about that already and wouldn't that be increased by refusing to release anything?
Another Finance excuse for not releasing the documents was a fear that the banks would no longer give over information if they thought the public might get sight of it at a later date.
Garvey responded that: "Given the scale of State support provided to qualifying banks under the guarantee, I do not accept as a realistic contention that release of the records would result in those banks being less than open and frank in response to any request by the Department to them on behalf of the Minister."
Garvey rejected the majority of Finance's objections and said the two memos should be released. A few things like a direct instruction from Brian Cowen to Brian Lenihan and information from the Central Bank and Finacial Regulator should be exempt and redacted but the documents would be made public.
Finance let it be known that they weren't happy about this and informed the OIC they would proceed to the High Court to prevent the two documents being released to The Sunday Times.
I didn't mind that. Watching Finance go to the High Court to protect these records against the OIC's decision would have been entertaining.
Finance did release other "not contentious" documents (14 months after the request!) related to this FOI two weeks ago. They kindly gave them to other organisations at the same time. See RTE's report on these documents here.
Unfortunately for us O'Reilly then accepted that one of the exemptions that Finance had sought should apply to the two records of the midnight meetings. So now it's The Sunday Times that would need to file a High Court case to get the records released.
O'Reilly has ruled that Section 19(1)(c) applies and these records of the midnight meetings were used to brief the cabinet for its incorporeal meeting which gave the bank guarantee the go-ahead.
In my view she actually doesn't offer any conclusive evidence of this being the case. Garvey said he didn't accept this in his preliminary finding either. If these documents were used to brief this cabinet on the biggest decision it is (likely) ever to make, then surely this vital information wouldn't just have been left hidden in some official's notebook for eight months after, would it?
Whatever is in these two records is a first-hand account of the two meetings which changed the course of the Irish economic history. It would obviously be fascinating to see what people like Patrick Neary, the former Financial Regulator, or David Doyle, the soon-to-be former secretary general in Finance, were saying in response to Eugene Sheehy, the former AIB chief executive.
Unfortunately with the way the bank inquiry has been set up by the government it doesn't look like we'll find out that way. There's a good discussion on this topic on the Irish Economy site. (Neary's advice, as Financial Regulator, would be exempt from FOI under section 33AK of the Central Bank Act anyway. But wouldn't you love the hear what his contribution to this meeting was?)
So maybe we could win a legal challenge but then maybe O'Reilly's interpretation of 19(1)(c) is correct. Any advice on this would be appreciated. I'm hoping to discuss it with our lawyer later this week.