Category: FOI

Earlier this year a newspaper report indicated that the IDA was lobbying against higher income taxes claiming that high income tax was making it difficult to attract foreign investment and was hitting job creation.

In August last year we submitted an FOI request looking for the analysis to back up these claims and all records of any lobbying in respect of income tax and social security rates in Ireland.

The IDA said that it continually analyses personal taxation and social security and how it influences FDI in Ireland and pointed to various methods including a 2015 survey by KPMG, a report from the Tax Institute and engagements with stakeholders, clients and staff. Specifically IDA undertook research in 2016 to identify reasons why some companies who considered Ireland chose to go elsewhere. According to the IDA, personal tax was among the reasons why they did not choose Ireland.

However, none of the underlying records were identified or released.

All IDA provided were redacted copies of 2017 pre-budget submissions calling on the government to reduce the top rate of income tax from 52% to below 50% and to set out a road map of income tax reductions up to 2020.

Tax rates are a big public interest issue. Taxes are used to fund public services (including the IDA it must be noted). With lower tax rates there must be an objective analysis of the trade-offs that are being made. While nobody necessarily wants to pay more tax – a public body such as the IDA would be expected to be sensitive to the bigger issues at play when it calls for tax cuts. In particular there must be a clear public benefit based on objective analysis so that the IDA position is substantially more than mere lobbying on behalf of big business.

We believe that the IDA must disclose its tax analysis and identify the interests that are driving it to intervene in the public debate over tax rates. To that end we are not satisfied that so much information has been withheld and have now filed an application with the Information Commissioner to review the IDA’s decision to keep the bulk of its information supporting its position on lower taxes from public scrutiny.

The Information Commissioner has invited us to make a submission in early January and we expect him to make a decision shortly after that.

We will keep you posted.

Here is IDA’s response:

Apple is one of the largest employers in Ireland and certainly the largest employer in Cork.

The US company is at the centre of one of the most significant European State aid cases of all time. This year the European Commission ruled that Ireland’s tax arrangements with Apple were illegal. The result is that Ireland must recover over €13 billion from the American electronics giant in illegally foregone taxes. While the case is now set to be appealed, the finding is considered to be an attack on Ireland’s tax system which is designed to attract foreign direct investment.

Given the importance of the Apple State aid case we were interested in finding out what supports, either financial or otherwise Apple was providing to UCC. Such supports are rarely controversial, large companies often sponsor research and cooperate with universities with a view to attracting graduates. Sometimes a large corporation wants to give something back and will contribute philanthropic money to educational establishments.

Universities and academics are considered to be experts in many areas of technology, economics, and policy, and their views are often reported as independent and objective and reported as such without question.

To maintain that reputation transparency in respect of private funding is important so that the public can know what interests are at play.

While there is absolutely no indication whatsoever that Apple exerts influence on UCC we felt that it was important that any financial or other support that Apple gives to UCC is known given the public controversy over its operations in Ireland.

In September we filed an FOI request with the university looking for full details of the support it received from Apple since 2011. UCC chose not to respond to our request including our request for an internal review. In the end it only responded once an appeal was lodged with the Information Commissioner.

In its response, UCC made contradictory claims. It said its accounting system does not record the identity of persons making payments to it and without offering any assistance it said that the volume of records would be too large for it to handle.

The Information Commissioner has now found that UCC’s justification was inadequate and ordered it to answer the request.

Should the Data Protection Commissioner be transparent about lobbying communications she receives?

That is a question we are asking the Information Commissioner to answer in an application we filed last week for a review of a decision of the Office of the Data Protection Commissioner to refuse to grant access to records relating to communications with lobbyists representing large multinational companies and trade associations.

Since May 2015 lobbyists must register and provide information about activities where they communicate with certain public officials – including the Data Protection Commissioner – in relation to development of public policy, preparation of amendment of legislation and award of financial supports involving public funds. The legislation is not intended to prevent or inhibit lobbying, which is an essential part of the democratic process, but to make it more transparent.

We noticed that the Data Protection Commissioner has been lobbied on quite a few occasions by companies such as Microsoft, Yahoo and Accenture and trade bodies such as IBEC and the American Chamber of Commerce. In one instance the lobbying took place in the Irish Embassy in Washington DC and another purported to be “To ensure Ireland remains the global location of choice for US investment”.

Wanting to learn more about this lobbying we filed an FOI request with the Data Protection Commissioner’s Office on 2 September 2016 looking for comprehensive information about each of eight separate lobbying activities.

It is worth recalling that to protect the confidentiality of the Data Protection Commissioner’s statutory functions her office is not fully subject to FOI. Only records relating to the “general administration” of the office are accessible.

Our request was refused on the basis that it did not relate to the general administration of the office since the Commissioner was lobbied about data protection matters. We stressed that communication with a person because she holds public office is not necessarily the same as communications with her pursuant to a statutory functions of that office.

We take the view that, by definition, communications with the Data Protection Commissioner exercising her statutory functions is not lobbying and conversely communications disclosed on the lobbying register must be within scope of FOI.

The Data Protection Commissioner sees it differently. She thinks that lobbying communications – no matter the circumstances – come within her statutory functions and therefore must be protected with such a high degree of confidentiality that the right of access under FOI cannot apply.

The Irish Data Protection Commissioner, as the single European regulator of many of the world’s largest internet companies, plays a pivotal and crucial role in the supervision of the processing of personal information in the European Union. As a matter of principle we believe that lobbying communications between her and vested interests should be transparent to members of the public.

We have asked the Information Commissioner to rule that records of lobbying communication with the Data Protection Commissioner are accessible under FOI and to order her to process our request.

We will update readers on the case as it progresses.

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