IT WILL NOW no longer be possible for the public to know how much former Taoisigh and ex-government ministers are paid as part of their pensions each year, following a ruling by the Information Commissioner. 

TheJournal.ie‘s investigative platform Noteworthy had sought access to the information via the Freedom of Information Act last year, but this request was refused by the Department of Public Expenditure and Reform.

A review of this decision was requested and the matter was appealed by journalist Ken Foxe, through the campaign group RightToKnow, to the Office of the Information Commissioner.

That office last month ruled in favour of the department in this case, meaning it won’t be possible going forward to see how much ex-ministers earn each year from pensions paid to them by taxpayers.

Speaking to the TheJournal.ie, Sinn Féin’s finance spokesperson Pearse Doherty said that there’s a responsibility on those in public office to be transparent and that it’s “important that people have that transparency” on how much is given to ex-politicians.

“At the end of the day, it’s public money,” he said. 

Pensions

TDs who were elected to the Dáil before 1 April 2004 can qualify for a lump sum and pension from the age of 50. Those elected after that must reach the age of 65 before they’re eligible for the same entitlements.

Politicians who serve as ministers are entitled to a pension paid from the Department of Finance as well as a separate Oireachtas pension for their service as a TD or Senator. When the two are combined, the figure can be in excess of €100,000 each year. 

The details of how much former Taoisigh, presidents and ministers were paid in pensions were routinely published on the Department of Finance website until 2016.

For example, we know that in 2016 former Taoiseach Bertie Ahern was entitled to a ministerial pension of €81,209 which along with his Oireachtas pension of €53,291 brought his total annual payment to over €130,000.

However, this practice ended in 2017 with the department deciding printing them would be a breach of its obligations under the new EU GDPR (General Data Protection Regulation). 

A spokesperson for the Department of Public Expenditure said at the time: “On balance, the decision was taken to discontinue the practice of releasing information on pension payments of individuals.”

In refusing the Freedom of Information request from Noteworthy last year, the department’s decision-maker said the “right to privacy outweighs the public interest in releasing individual names, or in providing an opportunity for individuals to be identified from the full release of the information”.

It instead released an aggregate, or total, figure on the full amount being paid in pensions to all former Taoisigh and ministers. In 2017, 122 former ministers – whose time spent as a minister could vary widely – shared €3.539 million. Across 2017 and 2018, a total of €28 million was paid by the taxpayer in pensions to former TDs, senators and ministers.

Information commissioner case

In cases where a Freedom of Information request has been turned down, if an individual or group wishes to appeal it they can do so through the independent Office of the Information Commissioner. 

Foxe and transparency campaigners RightToKnow took the case to the Information Commissioner.

In its judgement of the case, it essentially said that while work committed during the course of a minister’s duties can be made available via a Freedom of Information request, that must be separated out from that individual’s financial affairs. 

In the case of the former, a great deal of information about the inner workings of government and other public bodies comes into the public domain through such FOI requests. Like here, here and here. 

The Information Commissioner said: “Essentially when considering the exclusion, a distinction must be drawn between the role of a public servant or officeholder and the privacy rights of that same individual regarding his or her private employment and financial affairs.

In my view, the plain language of the FOI Act strikes this balance by excluding work and role related functions from the definition of personal information but including details relating to matters such as personnel files and financial affairs.

Furthermore, it was determined that details of payments to government ministers and ex-Taoisigh “cannot reasonably be described as information relating either to the terms upon and subject to which they held office”. 

Releasing the total figure, i.e. the total amount paid to all ex-ministers ensured the public interest in ensuring transparency and accountability was met to “some degree in this case” according to the Information Commissioner.

The question I must consider is whether the public interest in further enhancing that transparency and accountability outweighs, on balance, the privacy rights of the individuals to whom the information relates. In my view, it does not.

Information about the pension payments is an issue of an “inherently private nature and I consider that its release would involve a significant breach of the privacy rights of the individuals concerned”, the commissioner said.

In essence, in ruling in favour of the department, the Information Commissioner didn’t do so because of the argument the department had given – that it would contravene GDPR. It ruled that details of the ex-government ministers’ pensions shouldn’t be released individually to protect their privacy rights.

Transparency

Foxe told TheJournal.ie that this decision was both disappointing and worrying given a string of recent decisions against the publication of such information. 

He said: “The irony of this decision is that the government ceased publication of details of these political pensions because they were concerned it would be in breach of GDPR when GDPR was introduced.

They had for years been happy to publish the information to their website without anybody ever complaining about their personal details being made available.

The Information Commissioner however, decided that the GDPR consideration was not relevant. Instead, in its decision, the Information Commissioner decided it would be a breach of the privacy of former Taoisigh, presidents, and ministers. He decided that the public interest did not outweigh their right to privacy.

Foxe also believes that this latest decision is indicative of a wider pattern that has emerged in recent years where the release of information into the public domain has been repeatedly blocked.

“Unfortunately, this is part of a pattern of decisions, the overwhelming majority of which have gone in favour of government departments and public bodies,” he said. “We’ve had refusals of expense documents because they were considered private papers, we’ve had refusals of emails sent by special advisers using department email addresses because they were considered private papers.

We had a decision where the Information Commissioner said a department didn’t have to ask a minister if he held records on his mobile phone or in a private email account. We’ve had a number of really damaging court judgments on commercial sensitivity considerations that have ended up having to be appealed.

Some of those judgements on commercial sensitivity have progressed all the way to the Supreme Court. 

Foxe added that there’s been a “steady erosion of our right to information” in recent years, and “every day, it’s getting harder and harder to access public records”. 

“This is an absolute fundamental right that is being chipped away at constantly,” he said. 

In this case, Sinn Féin’s Doherty said to clamp down on the release of information on pension payments to retired senior politicians now is “wrong”.

“You have to remember, as politicians we serve at the pleasure of the people,” he said. “The public have a right to know.”

He contended that there will be ministers and other TDs in the Dáil currently, including some who could claim a pension from age 50 onwards, that will be voting on whether to increase the pension age for regular workers to 67. 

Doherty indicated that he would be tabling questions in the Dáil related to the decision to cease publishing details of ministerial pensions and whether it was the request of a particular minister to do so.

There’s a responsibility on us as politicians to be transparent. I can’t see why they changed [from publishing this information]. They should just publish them.

Under the current government, Foxe said that little has been done to prevent public bodies repeatedly failing to meet their obligations on access to information.

“I would appeal to all of the other political parties to make FOI reform an issue as part of any programme for government that they agree,” he said.

It’s understood that RightToKnow is considering appealing this decision from the Information Commissioner in the High Court.