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We asked for copies of the ECB’s letters to Brian Lenihan. Here’s what happened

With the letters back in the news today, we thought we’d publish the response to a request we made in April 2011.

The Department of Finance has so far refused any requests to release the ECB's letters under the Freedom of Information Act.
The Department of Finance has so far refused any requests to release the ECB's letters under the Freedom of Information Act.
Image: Peter Morrison/AP

WITH MICHAEL NOONAN having said he would favour the publication of letters between the ECB and Brian Lenihan in the run-up to Ireland’s bailout, today we thought we would show what happened when we attempted to obtain them.

In April 2010 TheJournal.ie lodged a Freedom of Information request with the Department of Finance, hoping to publish the letters sent between Ireland and the Troika in advance of the negotiations on Ireland’s funding package.

Specifically, we asked for:

Copies of any correspondence between Minister for Finance and any officers or officials from the European Central Bank, European Commission, International Monetary Fund or Her Majesty’s Treasury, for the month of November 2010.

We received a response on June 2011 (the usual four-week response time was extended due to a request for extra fees to cover the search for documents), which – given how the matter has returned to the news – we are publishing today.

The response catalogues the documents which could have fallen under the scope of our request, and lists on a case-by-case basis the reasons why each letter would be released (or, as it more often was, not released).

For those unable to read the files embedded below, the main response letter can be viewed here, while the schedule of documents can be viewed here.

The Department’s response cites three provisions under Ireland’s Freedom of Information Act, 1997 which allow requests to be refused.

In summary, they are:

  • Section 24(2)(e) – This allows requests to be refused if “access to it could reasonably be expected to affect adversely” the security, defence and international relations on the state; this applies to communication sent in confidence to and from international bodies like the EU;
  • Section 26(1)(a) – This allows requests to be refused if information within it was sent “on the understanding that it would be treated by it as confidential” and if its release would probably prejudice the communication of similar information in future;
  • Section 31(1)(a) – This allows requests to be refused if its publication “could reasonably be expected to have a serious adverse affect on the financial interests of the State or on the ability of the Government to manage the national economy”.

The schedule of documents attached to the response – which is embedded below, and can be viewed here – cites these clauses at various points in refusing to release ten of the 12 documents which were considered for release.

Because the documents fell under the clauses of Section 26 and 31, the deciding officer is required to undertake a public interest test in order to evaluate whether the public benefit to releasing the documents would outweigh the concerns reached.

The response outlines the arguments in favour, and against, the release of the documents.

The public interest factors for disclosure in this regard included:
  • a) The right of the public to have access to information and the right to understand the workings of Government.
  • b) Disclosure will reveal the reasons for decisions.
  • c) The need for the public to be better informed and more competent to comment on public affairs.
  • d) The information in the records might make a valuable contributions to public debate on an issue.
  • e) The need to ensure accountability of administrators and scrutiny of the decision making process and the use of public funds.

The public interest factors against disclosure in relation to these records included:

  • a) Access to these records could prejudice the position of the Department and the Government in its negotiations or deliberations on matters of national importance, including negotiation with other Departments and with other EU Member States or international organisations.
  • b) This record contains information, access to which could reasonably be expected to have a serious adverse effect on the financial interests of the State or on the ability of the Government to manage the national economy.
  • c) Release of some of these records would impact on the integrity and viability of the decision making process to a significant degree without a countervailing benefit to the public.
  • d) Release of some of these records would impair a future decision.
  • e) The need to preserve confidentiality having regard to the subject matter and the circumstances of some of these records.

Having considered all of these factors, on balance, I am of the view that the public itnerest is not best served by disclosure in relation to those records to which access had been refused.

There were two documents for which the request was approved – the ECB opinion on plans to extend the bank guarantee, and an ironically-timed invitation to an IMF course on financial stability. The ECB opinion document can be read here; the IMF invitation is here.

It may be of interest for readers to note that in a BBC radio documentary broadcast in April 2011, Brian Lenihan discussed receiving a letter from Jean-Claude Trichet – which had ‘bounced’ Ireland into its bailout – on November 12 (this is discussed by UCD’s Karl Whelan in a blog post for Forbes).

The schedule of documents, however, contains no written communications between the two between November 5 and November 18.

In his Sunday Independent interview today, Michael Noonan said he did not have the power to direct his Freedom of Information unit to release Trichet’s letter.

Read: Will Noonan publish the ECB letter that forced Ireland into a bailout?

Poll: Should ECB letters sent before the bailout be released?

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About the author:

Gavan Reilly

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