Subsequent to my last post about the controversial decision to keep secret the invoices and receipts submitted by TDs and Senators for repayment from the public purse, I submitted several questions to the Information Commissioner about the decision.

I asked them firstly if they had raised the point with government that the new FOI Act now appeared to have extra protections built in to it for the “private papers” of politicians.

I also asked them about the apparent inconsistency between this decision and another taken many years ago by the previous Information Commissioner … which had come down in favour of public release of political expenses.

That older decision was incredibly important for many reasons, not least because it is one of the most frequently used by journalists when appealing decisions.

I also asked the Department of Public Expenditure and Reform, who were responsible for sneaking through putting in place these extra protections, for their comment on the decision.

They, unsurprisingly, had no comment to make on the Information Commissioner’s findings.

You can make what you will of the rest of their “response”. I had asked them why these additional protections for politicians were needed.

“The Freedom of Information Act 2014, Section 43(3) states that the Commissioner shall be independent in the performance of his or her functions and as such the Department of Public Expenditure and Reform (DPER) has no comment to make in relation to the functions and/or activities or decisions of the Information Commissioner’s Office.

“Any paper in the possession or control of the member in relation to his or her political (including party political) role or in his or her capacity as a member falls within the definition of a “private paper”. The protection afforded by Section 42(l) is one that is constitutionally recognised as being for a category of documents (private papers of members) outside the scope of disclosure. This has been a long standing principle that has only recently been codified in legislation by the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act, 2013 and therefore included in the FOI Act 2014.”

These are the questions from me to the Information Commissioner and the responses that cae back:

Q: Has Mr Tyndall raised concerns with the Dept of Public Expenditure with regard to what appear to have been extra provisions put in place for protection of politician’s private papers from public scrutiny?

A: The Constitution provides that the sole and exclusive power of making laws for the State is vested in the Oireachtas and it is the role of the Information Commissioner, in relation to the FOI Act, to implement the legislation passed by the Oireachtas in an independent and impartial manner.

As can be seen from the recent decision in case 150073, the Commissioner considers it reasonable to conclude that receipts and invoices for expenses incurred by members in the course of the performance of their functions would not ordinarily be considered to be private papers of the members. However, for the purpose of his review, he was confined to determining whether the Oireachtas had correctly applied the provisions of the legislation.

While the Commissioner has not raised any specific concerns with the Department, it should be noted that the Central Policy Unit of the Department receives a copy of every decision made. Accordingly, the Department is aware of the Commissioner’s findings and comments in so far as they are set out in the decision.

Q: How can Mr Tyndall balance the very clear decision made by his predecessor that private papers was clearly never meant to apply to receipts, invoices, expenses etc.?

A: Mr Murphy’s decision in case 99168, taken in 1999, was based on the legislation as it pertained at the time. It is noteworthy that the records at issue, relating to expense payments made to members of the Oireachtas were held by Office of the Houses of the Oireachtas, in accordance with the expense processing arrangements which existed at the time.

In case 150073, The Commissioner was required to consider the provisions of the FOI Act 2014. The Act of 2014 contains a provision which did not exist in 1999.

Furthermore, the records sought in case 150073, namely the receipts and invoices relating to expenses incurred by the members, are held by the members in accordance with the expense processing arrangements currently in place. This is a relevant consideration in determining whether the records relate to private papers of the members, within the meaning of Part 10 of the Houses of the Oireachtas (Inquiries, Privileges, and Procedures) Act 2013 (the 2013 Act).

Q: Does Mr Tyndall believe his decision will have broader implications now, that access to salaries, expenses, pensions, overseas travel and so on relating to TDs and Senators could now be considered “private papers”?

A: For a record to be excluded from the FOI Act under section 42(l), the record must relate to any private paper or confidential communication within the meaning of Part 10 of the 2013 Act, or official document, within the meaning of Part 11 of that Act. The question of whether a record is captured by the provision is dependent upon a number of factors, including the nature of the record, its contents, who holds the record etc. The question of whether or not a record is a private paper for the purpose of section 42(l) is not determined by the provisions of the FOI Act. Rather, it is determined by the provisions of the 2013 Act.

It is also noteworthy that under section 42(k), the FOI Act does not apply to a record relating to any private papers (within the meaning of Article 15.10 of the Constitution) of a member of either House of the Oireachtas or an official document of either or both of such Houses that is required by the rules or standing orders of either or both of such Houses to be treated as confidential.