Confidentiality FOI Requests

Going Forward

FOI request applicants are not being afforded confidentiality:

Nick Webb:
http://www.transport.ie/uploads/documents/feature/FOI%202012%200120%20SG%20Diary.pdf


http://www.dttas.ie/uploads/documents/feature/FOI%202012%200045%20Part%201.pdf
Another:
http://www.transport.ie/uploads/documents/feature/FOI%202012%200049%20Records%20of%20documented%20complaints%20received%20by%20the%20IAA%20and%20DTTAS%20from%20residents%20in%20Coolegrean%20Hill%20concerning%20and%20aircraft%20incident.pdf
Another, Mr. F this time:
http://www.transport.ie/uploads/documents/feature/FOI%202012%200046%20Staff%20Allowances.pdf

A "Ms. L's" request's for information is here:
http://www.dttas.ie/uploads/documents/feature/FOI_2012_0011_Decision.pdf

There are a number of these faintly "identity blanked out" requests and responses from various departments on government websites online.

Take from it what you will, a little reminder that FOI requests are not really wanted, or simply that the marker is just a bit faded...................

Its also interesting to note some of the correspondence from departments is photocopied, thereby rendering word searches etc. impossible.

Jawgap

Is there not an irony in FoI requesters seeking or expecting anonymity?

We should be trying to inject as much transparency into government and the operation of the state - not less....as the American judge Louis Brandeis said....

"Publicity is justly commended as a remedy for social and industrial
diseases. Sunlight is said to be the best of disinfectants; electric light the
most efficient policeman."

Manach

I've no issue in the openness of those seeking information under the FoI act, with minor exceptions for sensitive personal requests. But that the initial request is 15e and it can then spiral beyond that if appeals are included does seem to negate the spirit of the act.

Going Forward

Jawgap wrote: »

Is there not an irony in FoI requesters seeking or expecting anonymity?

We should be trying to inject as much transparency into government and the operation of the state - not less....as the American judge Louis Brandeis said....

Private citizens are entitled to and are assured of their privacy and confidentiality when dealing with government departments.

Jawgap

Going Forward wrote: »

Private citizens are entitled to and are assured of their privacy and confidentiality when dealing with government departments.

That is true - but the implied right to privacy for citizens relates to dealings with the state regarding their own personal interests, not every interaction with the state.

There is a significant difference between privacy and confidentiality, neither of which is an entitlement or a fundamental right in the constitution- they ebb and flow depending on the legislation and the 'relationship' at issue between the state and the citizen. In some circumstances (for example your medical information) you have a right to a high degree of both, in others (conviction on indictment) less so.

As manach pointed out - sensitive, personal information (as defined by the Act) should be kept private and confidential, but the examples you posted up do not relate to personal information - they strike me more as fishing expeditions and people should encouraged to submit FoI requests and I've no problem with fishing expeditions. In that regard I'd agree fees should go.

But to be of maximum benefit I think it's important the requests and the response are given a full airing as they may be of interest to other citizens.

Cody Pomeray

Jawgap wrote: »

That is true - but the implied right to privacy for citizens relates to dealings with the state regarding their own personal interests, not every interaction with the state.

You miss the point.

Clearly, officials of the Department in question formed the opinion that it has been appropriate to redact the name of some of those individuals who made FOI applications.

Whether or not they should have formed that opinion is temporarily irrelevant.The point is that after they formed that opinion, they failed to carry out a task which they themselves deemed appropriate. We can clearly read the names of the applicants through the redactions, they are identifiable.

At best, this is incompetence. At worst, it (i) raises questions of the legal and constitutional rights to privacy, and (ii) it risks discouraging people from making legitimate personal enquiries of the State, lest their application itself be broadcast.

Jawgap

Cody Pomeray wrote: »

You miss the point.

Clearly, officials of the Department in question formed the opinion that it has been appropriate to redact the name of some of those individuals who made FOI applications.

Whether or not they should have formed that opinion is temporarily irrelevant.The point is that after they formed that opinion, they failed to carry out a task which they themselves deemed appropriate. We can clearly read the names of the applicants through the redactions, they are identifiable.

At best, this is incompetence. At worst, it (i) raises questions of the legal and constitutional rights to privacy, and (ii) it risks discouraging people from making legitimate personal enquiries of the State, lest their application itself be broadcast.

If it was a 'personal enquiry' it would be confidential. Just because these people ask for the information doesn't make it theirs - it belongs to everyone.

They lodged a request and that request itself is now information that may or may not be of interest to another citizen - subject to the appropriate controls on personal information - there's no reason why this shouldn't be published.

The EPA and ABP routinely publish the full details of all submissions they receive.

there's no constitutional right to privacy - it's an unenumerated residual right at best.

It would also help deal with the vexatious and frivolous requests that clog up the system and help encourage departments and agencies to publish more information of their own volition.

Cody Pomeray

Jawgap wrote: »

If it was a 'personal enquiry' it would be confidential. Just because these people ask for the information doesn't make it theirs - it belongs to everyone.

Clearly the Department did not share this opinion.

The fact is that the Department formed the opinion that it was appropriate to maintain confidentiality.

there's no constitutional right to privacy - it's an unenumerated residual right at best.

Unenumerated residual right?
What the hell is that supposed to mean? That is a meaningless attempt at jargon.

There is a constitutional right to privacy. It's well covered in case law, and has been deemed, in Kennedy v Ireland, to be one of the fundamental personal rights. As such, if we were to rank constitutional rights, privacy is one of the higher ranked constitutional rights. The fact that it is an unenumerated right is irrelevant to its rank or importance.

Jawgap

Cody Pomeray wrote: »

Clearly the Department did not share this opinion.

The fact is that the Department formed the opinion that it was appropriate to maintain confidentiality.



Unenumerated residual right?
What the hell is that supposed to mean? That is a meaningless attempt at jargon.

There is a constitutional right to privacy. It's well covered in case law, and has been deemed, in Kennedy v Ireland, to be one of the fundamental personal rights. As such, if we were to rank constitutional rights, privacy is one of the higher ranked constitutional rights. The fact that it is an unenumerated right is irrelevant to its rank or importance.

Unless you work for DoT I don't know how you could hold forth on how they formed an opinion.

Residual rights are those rights which the legislature or the people, through Constitution, have chosen not to deprive us of. Unenumerated rights are implied rights, not specifically spelled out anywhere but may be inferred before given effect to in the judgment of the courts.

I look forward to you posting a link to my "constitutional right to privacy" - which article of the constitution says specifically I, or any other citizen, has a right (conditional or otherwise) to privacy?

Cody Pomeray

Jawgap wrote: »

Unless you work for DoT I don't know how you could hold forth on how they formed an opinion.

I am not suggesting why they might have formed a specific opinion.

It is enough that they did form this opinion.

The Department have seen it as appropriate to redact certain identities - and they didn't quite manage it.

I look forward to you posting a link to my "constitutional right to privacy" - which article of the constitution says specifically I, or any other citizen, has a right (conditional or otherwise) to privacy?

This is just bizarre. The constitutional right to privacy flows from the Preamble and from Article 5, whereupon it enters Article 40.3, and indeed the upper echelons of constitutional rights.

Being an unenumerated right it is actually irrelevant. Don't you get this?

Jawgap

you said.....

Cody Pomeray wrote: »

There is a constitutional right to privacy......

I asked for a link and now you're saying

Cody Pomeray wrote: »

IThe constitutional right to privacy flows from the Preamble and from Article 5, whereupon it enters Article 40.3, and indeed the upper echelons of constitutional rights.

Being an unenumerated right it is actually irrelevant. Don't you get this?

So I take it you can't post a link to an article in the Constitution that guarantees me as a citizen a constitutional right to privacy?

you quote Kennedy and Arnold v. Ireland - that case is about intrusion and protection therefrom, it does not guarantee privacy in situations where the individual 'comes' to the state, rather than the other way around, nor does it guarantee privacy unless there is a reasonable expectation of same.

To quote from Judge Hamilton with my emphasis added.....

The right to privacy is not in issue, the issue is the extent of that right or the extent of the right to be let alone'. Though not specifically guaranteed by the Constitution, the right of privacy is one of the fundamental personal rights of the citizen which flow from the Christian and democratic nature of the State.

It is not an unqualified right. Its exercise may be restricted by the constitutional rights of others, by the requirements of the common good and it is subject to the requirements of public order and morality... The nature of the right to privacy must be such as to ensure the dignity and freedom of an individual in the type of society envisaged by the Constitution, namely, a sovereign, independent and democratic society.

The dignity and freedom of an individual in a democratic society cannot be ensured if his communications of a private nature, be they written or telephonic, are deliberately, consciously and unjustifiably intruded upon and interfered with. I emphasise the words "deliberately, consciously and unjustifiably", because an individual must accept the risk of accidental interference with his communications and the fact that in certain circumstances the exigencies of the common good may require and justify such intrusion and interference.

FoI requests unless they relate to personal information, are not communications of a private nature, and it's arguable that publishing that such requests have been made (along with the response provided) is in the common good.

Btw, if your think their Constitutional right has been so egregiously breached I presume you'll be contacting them about seeking appropriate relief through the courts.......

Cody Pomeray

Jawgap wrote: »

So I take it you can't post a link to an article in the Constitution that guarantees me as a citizen a constitutional right to privacy?

This is just ridiculous. Do the constitution a favour and leave it alone, or try to understand how it works. Constitutional provisions are deduced from the spirit of the constitution and from its natural implications. There is a Constitutional right to privacy, affirmed by the superior Courts in more cases than can possibly be recounted here, and that is undeniable.

I'm not trying to make a statement as to whether or not the constitutional right to privacy was offended in this instance. I am simply responding to your erroneous, uninformed statement :

There is a significant difference between privacy and confidentiality, neither of which is an entitlement or a fundamental right in the constitution

That's completely false.

The courts have held that there is a constitutional right to privacy, further that it is a fundamental, personal constitutional right, which tend to sit near the top in the hierarchy of constitutional rights.

Jawgap

Cody Pomeray wrote: »

This is just ridiculous. Do the constitution a favour and leave it alone, or try to understand how it works. Constitutional provisions are deduced from the spirit of the constitution and from its natural implications. There is a Constitutional right to privacy, affirmed by the superior Courts in more cases than can possibly be recounted here, and that is undeniable.

I'm not trying to make a statement as to whether or not the constitutional right to privacy was offended in this instance. I am simply responding to your erroneous, uninformed statement :



That's completely false.

The courts have held that there is a constitutional right to privacy, further that it is a fundamental, personal constitutional right, which tend to sit near the top in the hierarchy of constitutional rights.

It's not in the constitution and it's therefore prone to being eroded by a more conservatively minded judiciary.

As it is the courts view privacy and the expectation of it as being very narrow, to quote Judge Hanna, who was quoting another judge....

A very high level of protection is given to the individual's intimate personal sphere of life and the maintenance of its basic preconditions and there is a final untouchable sphere of human freedom that is beyond interference from any public authority. So much so that, in regard to this most intimate core of privacy, no justifiable limitation thereof can take place. But this most intimate core is narrowly construed. This inviolable core is left behind once an individual enters into relationships with persons outside this closest intimate sphere; the individual's activities then acquire a social dimension and the right to privacy in this context becomes subject to limitation"

In short there is nothing to suggest the people who made these requests had any expectation of privacy much less a 'right' to it.

And you'll be delighted to know that I'm and FoI decisionmaker - your privacy is safe with me........

Cody Pomeray

Jawgap wrote: »

It's not in the constitution and it's therefore prone to being eroded by a more conservatively minded judiciary.

This is ridiculous. Even rights which are stated explicitly to be in the constitution can be temporarily with-held, or with-held at the expense of another right, especially if that latter right is one of those most important set of rights: the fundamental, personal rights (such as the right to privacy).

Why did you say there is no constitutional right to privacy?

There is. Why did you say it is not a fundamental right?

It is. This is the position of the Supreme Court.

Saying that the Supreme Court might overturn itself at some point in the future is pointless: there is no reason to believe that to be the case, the constitution includes a fundamental right to privacy. You are quite simply wrong.

As it is the courts view privacy and the expectation of it as being very narrow, to quote Judge Hanna, who was quoting another judge....

Are you just googling random privacy cases there or something?

I love how of all the cases, you picked Caldwell v. Mahon.

Caldwell confirmed that the constitutional right to privacy does extend to business affairs. It's hard to imagine someone picking a worse case for their argument. Let me know when you're ready to put down your shovel.

And again, the Department in question clearly felt, and indeed agreed, that it was appropriate to redact some of the names in question. You don't have a valid point here.

Manach

From some research I did previously, at a sub-constitutional level as per the ECHR, there is a right from that treaty for privacy but subject to the needs of a democratic society with any exceptions being proportionate to that aim: key cases Von Hannover v Germany & in Ireland DPP v Murphy, where it was suggested that Irish law adhered to this.

Jawgap

Cody Pomeray wrote: »

This is ridiculous. Even rights which are stated explicitly to be in the constitution can be temporarily with-held, or with-held at the expense of another right, especially if that latter right is one of those most important set of rights: the fundamental, personal rights (such as the right to privacy).

Why did you say there is no constitutional right to privacy?

There is. Why did you say it is not a fundamental right?

It is. This is the position of the Supreme Court.

Saying that the Supreme Court might overturn itself at some point in the future is pointless: there is no reason to believe that to be the case, the constitution includes a fundamental right to privacy. You are quite simply wrong.

Are you just googling random privacy cases there or something?

I love how of all the cases, you picked Caldwell v. Mahon.

Caldwell confirmed that the constitutional right to privacy does extend to business affairs. It's hard to imagine someone picking a worse case for their argument. Let me know when you're ready to put down your shovel.

And again, the Department in question clearly felt, and indeed agreed, that it was appropriate to redact some of the names in question. You don't have a valid point here.

No, I cited a quote - a well regarded quote - to illustrate how narrowly the right to privacy is construed, how "slippery" it is.

If I wanted to use Caldwell -v- McMahon, I would've cited Caldwell -v- McMahon.

Please read the posts as they are written, not how you wish they were written.

@manach -there's a similar line of cases in the UK that have been commented on favourably in our courts.

Cody Pomeray

Jawgap wrote: »

No, I cited a quote - a well regarded quote - to illustrate how narrowly the right to privacy is construed, how "slippery" it is.

I feel like I've interrupted a transition year legal debate here.

There is no immediate relevance to the Bernstein v. Bester judgement, which is a South African judgement, to privacy per se. It is only relevant in light of the fact that it was looked over by Judge Hanna in the Irish High Court in determining a case that centred on proportionality and the right to privacy in an Irish case.

You cannot have regard to South African case law without stating how and whether its various facets enjoy legal authority in this jurisdiction.

In Bernstein, the Sourth African court was trying a case involving the statutory examination of a corporate body, and whether a company's right to privacy was contravened, and if so whether it was justifiably contravened.

The similarities to Caldwell v. Mahon, in this jurisdiction, are tenuous but extant.

What is less certain is the relevance of Bernstein to the State publishing the names of those who enter into correspondence with it, either through their business interests, personal interests, or indeed at the level of journalistic investigation, which enjoys an even higher plane of constitutional protection.

The fact of the matter, jawgap, is that your original proposition, and that which has been my sole intention to answer, has been answered.

There does exist a constitutional right to privacy in this jurisdiction. It has been held by the courts of this jurisdiction to apply to individuals going about their personal lives, interacting with the state, and pursuing business interests. It may be qualified with respect to proportionality.

But at this stage, before i try to aim for your movable goal posts, I will instead re-confirm that the original point you made as to the existence of this fundamental, personal, constitutional right is both unsupported, and un-informed.

Jawgap

Going Forward wrote: »

FOI request applicants are not being afforded confidentiality:

Nick Webb:
http://www.transport.ie/uploads/documents/feature/FOI%202012%200120%20SG%20Diary.pdf[/url.........

I take it that's Nick Webb the journalist?

Going Forward

Jawgap wrote: »

I take it that's Nick Webb the journalist?

Well his blanked out address is the Sunday Independent........... Can you not make it out?

Jawgap

Going Forward wrote: »

Well his blanked out address is the Sunday Independent........... Can you not make it out?

Not on this screen