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Thursday, 4 June 2015

A long fight

So we have finally got to the stage where Transgender Equality Network Ireland (TENI) can declare the country an "international leader" in transgender rights. quotes TENI as saying the state has shown "great vision and conviction in ensuring the rights of trans people". 

The organisation was responding to new legislation that will allow those wishing to change their gender on their birth certificate to do so without medical evidence.

The announcement was made by Joan Burton, the t├ínaiste and social protection minister, and means that the application process under the Gender Recognition Bill will change for those aged 18 or older.

In future, adults will be able to make a self-declaration under the Gender Recognition Bill that will be fully recognised for all purposes including the right to marry or enter a civil partnership.
New birth certs, passports and other relevant documentation will be issued to those in the transgender community, ending the requirement of supporting statements from psychiatrists.
Labour TD Kevin Humphreys said the bill places “Ireland firmly in the most progressive group of countries for the recognition of transgender people.”
He is right, but it took an age to get to this point and the delays involved are worth noting. For years transgender people have been fighting to win the right to have their true genders recognised, through the courts and through the media. The most prominent was Lydia Foy, (pictured below) but there have been many others. 

Trace the history of transgender rights in Ireland and what you find is a group of people fighting to be listened to over an extended period of time in a bid to force necessary and arguably simple change. 
Ireland has a record of being slow to move to address pressing social issues even when the need to do so is glaringly obvious and despite the fact that several other countries have already shown the way. This has always been the case, but particularly so when the issue in question is outside what some would refer to as the "norm".  
As a young reporter, I first started writing about transgender rights in 2002. I wrote a series of articles for The Sunday Tribune on the subject and, over time,  suggested so many similar stories at editorial meetings that my colleagues began to ask what my obsession was. 
For me, it was straightforward: Transgender people in Ireland lived in a country that simply wasn't listening to them, trying to understand their concerns or bothering to help them. If you were coming from a position of otherness and didn't fit into the boxes, the computer-like Irish establishment and state system simply said 'no'.
It was a pressing social issue, especially for those involved, yet many who could help chose to ignore rather than address it, partly because the numbers of those affected was so small. Transgender people didn't want a whole lot, but what they wanted would have made a huge change to their lives. 
I believed the stories they had to tell were glaring examples of how the Irish state can often fail to face up to its responsibilities to all citizens and I thought they deserved to be heard. 
Here are some of the stories I wrote.  

Couple must remarry in Denmark to be let work Husband who was once a woman gets lifeline from Copenhagen, writes Richard Oakley
Richard Oakley
1155 words
31 March 2002
Sunday Tribune
Pg. 3
(c) 2002 Sunday Tribune Newspapers. All Rights Reserved.
NICHOLAS Krivenko has been living in limbo since he got married in Limerick four years ago.
A Russian citizen, currently resident in Broadford, Co Clare, he wants to live and work in Ireland but is not allowed to because he used to be a woman.
Ireland doesn't recognise his marriage to the German woman he loves because Krivenko is a transsexual who was born female. As a result, he has been refused a work permit - a right available to anyone else who is married to an EU citizen. The state doesn't accept that he is a man, despite this being stated on the new Russian birth certificate he was given after his sex change. And as same-sex marriages are not allowed in this country, the state is questioning the validity of Krivenko's.
In High Court proceedings initiated two years ago, Krivenko is suing the Department of Justice, the gardai, the AG and the state in a bid to have his marriage declared valid. He is claiming that, at the very least, the state should recognise his new birth certificate, which was issued by Russian authorities after he underwent a sex change operation and confirms his gender to be male and his name to be Nicholas.
The case, due to be heard laterthis year, means that the Irish courts will, for the first time, have to decide on the validity of a marriage involving a person who has undergone a sex change. In the meantime, however, the couple's case has taken a twist that highlights just how far Ireland is behind other countries when it comes to recognising the rights of transsexuals, according to campaigners.
Earlier this month, Nicholas and his wife Sybille received a letter from the central marriage registration office in Denmark saying "that Nicholas Krivenko and Sybille Ruth Karin Hintze can enter into marriage in Copenhagen, Denmark, if the High Court in Ireland declares their marriage to be void". The offer means that, even if the High Court rules that their marriage is not valid, the Krivenkos could circumvent the ruling by going to Denmark and getting married there.
After the marriage, Nicholas could then re-apply for a residence permit in Ireland because he would be married to an EU citizen. If he did this, the state could refuse to recognise a Danish marriage certificate, but doing so would be legally questionable. If the Krivenkos remarry, the state would be obliged to issue a residence permit to Nicholas, thereby rendering its battle with him an apparent waste of time.
The Danish letter, and its implications for a costly High Court case, have been seized upon by campaigners for transsexuals and Nicholas Krivenko.
In an interview with The Sunday Tribune at their home in Broadford, the Krivenkos confirmed they were prepared to travel to Denmark and get remarried there if needs be.
Nicholas claimed the situation showed "how ridiculous Ireland is being".
"This has been eating me up for years. I can't work and provide a living for my family.
Because of it and I feel like a second-class citizen. I can't get a passport, I can't start a business, it's just crazy. I don't want to be fighting all the time, but I am being forced to. It seems to me that the state hasn't got a leg to stand on. I don't understand why they are doing this. I don't think they understand, " he said.
Diane Hughes of the organisation Press for Change, which campaigns for transsexuals' rights, said the case showed Ireland was "light-years behind" nearly every other country in Europe. "There are only two countries in the EU where marriages between transsexuals are not recognised. In all the others, people can change their birth certificates and can marry as a result. But in the UK and Ireland, they can't, " she said.
Nicholas Krivenko arrived in Ireland in 1996 with Sybille, who he met in Hamburg in Germany in 1993. At that time Nicholas was female and called, Nadia but, as Sybille put it, "there was always something undeniably masculine about her".
Nicholas underwent a sex change in 1998 while living in Broadford and was issued with a new birth certificate by Russian authorities following the operation. One year later, he married Sybille in the registry office in Limerick.
A former exporter of Irish butter to Russia, he applied to the Department of Justice for an extension to his work permit in February 1999, on the basis that he was married to an EU citizen, and was granted one in June. However, when he subsequently visited his local Garda station to obtain a registration certificate, he wasn't issued with one and the gardai also did not make the necessary endorsement on his passport.
In October 2000, Nicholas and Sybille were granted leave to take a legal challenge against the failure of the Irish authorities to extend his residence permit. They want a declaration that Nicholas is entitled to be issued with a registration certificate.
Where Europe stands on transsexualism
TRANSSEXUALS are allowed to marry, adopt children and enjoy pension rights in nearly ever y countr y in the EU except Ireland and the UK. If Nicholas Krivenko was living in Denmark, Greece, Norway or Italy, for example, his altered birth certificate and subsequent marriage would be recognised by those countries.
The fact that Ireland has yet to change its legislation to match the rest of the EU is "unacceptable", according to transsexual Diane Hughes of the organisation Press for Change. "The law is ridiculous.
Transsexualism is a recognised condition. The main treatment for it is for the person involved to have a gender realignment operation.
When this is done, the person changes sex, a man becomes a woman, a woman becomes a man.
In Ireland now, however, you are not allowed to change your bir th cer tificate. So even though you have changed sex, your bir th cer tificate says you haven't. It's embarrassing in situations where you need your bir th cer tificate, but that is only par t of it. The fact that you can't change this document af fects your rights as a person and that is not fair, " she said.
"In other countries, they recognise changes in bir th cer tificates so transsexuals are then able to marr y, the marriage is not a samesex one, " she explained.
The Krivenkos' case and other similar cases involving transsexuals have led to calls for changes in the legislation governing marriages.
Alan Shatter of Fine Gael has said the state must legislate for new family situations, while Senator David Norris has written to the Minister for Justice asking him to examine the Krivenkos' case.

Transsexual vows to go on hunger strike A female-to-male transsexual has decided to go on hunger strike after the adjournment of his case
567 words
7 July 2002
Sunday Tribune
Pg. 11
(c) 2002 Sunday Tribune Newspapers. All Rights Reserved.
A FEMALE-to-male transsexual is to go on hunger strike this week because of the state's refusal to recognise his marriage.
Nicholas Krivenko, a Russian national who lives in Broadford, Co Clare, is currently suing the Department of Justice, the gardai, the Attorney General and the state in an effort to have his marriage to a German woman declared valid. The case centres around the authorities' refusal to recognise a Russian birth certificate issued to him after he underwent a sex change to become a man.
His decision to go on hunger strike was made after the adjournment of his case, which was due for a full hearing in the High Court last Tuesday. State solicitors argued that the court should await the outcome of a separate case involving another transsexual, Kildare dentist Dr Lydia Foy, and a decision was reached that this would be appropriate.
Foy is attempting to obtain an order to compel the registrar of births, deaths and marriages to change the gender on her birth certificate from male to female. Her case has already been heard by the High Court, but judgment has been reserved.
Krivenko, however, has argued that this case has nothing to do with his and is angry at the decision to adjourn his hearing. He was granted leave to take his case in October 2000 and in the meantime has been denied the normal rights afforded to a person married to an EU citizen. He has been refused a work permit and has not been issued with a passport.
"Dr Foy wants her Irish birth certificate changed. I have a Russian one that I want the Irish government to recognise. The two cases are similar but they are not the same.
"I was hoping that my case could be resolved as quickly as possible. I have waited patiently for this to happen, but when it finally comes up it gets adjourned. I feel there is no option now but to go on hunger strike and I plan to start next week, " he said.
Krivenko, formerly named Nadia, travelled to the US to undergo gender realignment surgery while living in Clare in 1998. After the operation, he was issued with a new Russian birth certificate and one year later he married Sybille, a German woman, in the registry office in Limerick.
A former exporter of Irish butter to Russia, he then applied to the Department of Justice for an extension to his work permit on the basis that he was married to an EU citizen.
He was granted one in June but when he subsequently visited his local garda station to obtain a registration certificate, he wasn't issued with one and the gardai also did not make the necessary endorsement on his passport.
In Ireland, same-sex marriages are illegal. The state also refuses to allow birth certificates to be altered. In the case of transsexuals, this has caused a number of difficulties and has been widely criticised by transsexual lobby groups.
Ireland is one of the few countries in the EU which refuses to allow transsexuals to marry, adopt children and enjoy pension rights. The Krivenkos, for example, have been offered the chance to legally re-marry in Denmark.

Irish transsexual tried to mutilate himself
372 words
10 November 2002
Sunday Tribune
Pg. 5
(c) 2002 Sunday Tribune Newspapers. All Rights Reserved.
AN Irish transsexual attempted self-castration because of the lack of services available to him, a high-level conference will be told this week.
Dr James Kelly, one of a small number of doctors in the country currently treating transsexuals, is to highlight the case in a paper to be delivered at next week's annual conference of the Psychological Society of Ireland. He will claim that the lack of services provided to people with gender-identity disorder or transsexualism has caused huge distress to a number of his patients and has led some to develop depression and try to attempt suicide or injure themselves.
According to Kelly, the incident involving the self-castration occurred a number of years ago, but there have since been only small improvements in the level of services provided for transsexuals.
"The patient in question was frustrated because he could not get any help for his condition.
He tried to remove one of his own testicles in an act of desperation, " Kelly said. He added that shortly after the incident, the person was put in contact with him and was successfully treated.
In his paper, Kelly will outline how 34 patients have presented at his clinic in Dublin since it opened last January with behaviours associated with gender identity disorder and another recognised condition known as transvestic fetishism. Of these 16, or nearly 50%, met the international diagnostic criteria for gender identity disorder and went on to be put on a course of hormone therapy with a view to undergoing sex changes. Kelly will outline how one quarter had experienced "clinically remarkable depression", had engaged in self-injurious behaviours or attempted suicide.
"Over the last two years, services have improved, but there are still problems in some health board areas. Some transsexuals are still not given access to treatments that have been shown to help with their condition, " he said. He added that legislation, particularly at EU level, had made it easier for transsexuals to obtain treatment, but that this was not always the case in Ireland. The annual conference of the Psychological Society of Ireland takes place in the Tower Hotel in Waterford from next Thursday until Sunday.
Transsexuals call for right to marry
456 words
15 December 2002
Sunday Tribune
Pg. 2
(c) 2002 Sunday Tribune Newspapers. All Rights Reserved.
IRISH transsexual rights campaigners have called on the government to introduce legislation which would allow transsexuals to marry. The call has come in the wake of new proposals announced by the UK government which will allow transsexuals to marry in their assumed sex and obtain new birth certificates.
When the measures are fully introduced in the UK, Ireland will become one of just three countries in Europe which still refuses to allow transsexuals to alter their birth certi cates. The other two countries are Albania and Andorra.
"Ireland is left looking stupid now. Nearly every other country in Europe has measures which allow transsexuals to enjoy the same rights as any other person.
Ireland used to hide behind the UK and argue that if it hadn't seen the need to introduce legislation, then why should we? This can't be done anymore. Legislation must be introduced and introduced quickly, " said Diane Hughes of the Transsexual Equality Network.
Hughes said the fact that transsexuals cannot change their birth certificates in Ireland had serious implications for them: transsexuals are barred from marrying in their new sex once they have undergone surgery and their right to privacy is affected because their birth certi cates record their former gender. She added that transsexuals in Ireland have had to ght for recognition of transsexualism as a medical disorder and to gain access to treatment.
A number of high-profile cases in Ireland have recently brought the issue of transsexual rights to the fore. One female-to-male transsexual is suing the state because it won't recognise his marriage to a German woman and issue him a work permit.
Nicholas Krivenko, a Russian transsexual living in Clare, underwent a sex-change operation and was granted a new Russian birth certificate in which his sex was confirmed as male. He then married his girlfriend in a registry office in Limerick using the new birth certificate, but when he applied for a work permit on the basis that he was married to an EU citizen, the state refused to recognise his marriage.
In another case, dentist Dr Lydia Foy lost a two-year legal battle to have her birth certificate amended to re ect the fact that, though registered at birth as male, she had undergone surgery to allow her to appear and live as a woman. The High Court ruled that it could not justify overruling the system of birth registration that had served the state well for over a century. But in rejecting Dr Foy's case, the judge appealed to the legislature to keep the situation of transsexuals under constant review, and to give consideration to meeting their needs through legislation.

Transsexual settles case with state over marriage
531 words
9 March 2003
Sunday Tribune
Pg. 4
(c) 2003 Sunday Tribune Newspapers. All Rights Reserved.
A LEGAL case taken against the Irish government by a Russian female-to-male transsexual who wanted to have his marriage recognised has been settled out of court.
Nicholas Krivenko, who lives in Co Clare, was offered three years' residency in Ireland and a business permit to drop his case against the state, the Department of Justice, the gardai and the Attorney General.
The settlement means Krivenko will be able to stay living in Ireland and will eventually become an Irish citizen.
However, Krivenko this weekend said that it does not mark the end of his attempts to have his marriage to a German woman declared valid.
Krivenko, whose marriage is not recognised by the state because he is a transsexual, plans to remarry his wife shortly in Denmark, one of the EU countries which allows transsexuals to marry.
He will re-apply for full Irish citizenship on his return here on the basis that he is married to an EU citizen, and believes the state will be unable to refuse to recognise the Danish marriage.
He said he was "disappointed" that his settlement only allows him a business permit instead of a work permit as this means he can only work as a self-employed person for the next three years.
He was hoping for a better deal, but said the terms of the settlement were changed at the last minute, leaving him no option but to accept them.
Krivenko's long-running case centres around the authorities' refusal to recognise a Russian birth certifcate issued to him after he underwent a sex change to become a man.
After moving to Broadford, Co Clare, a number of years ago, he underwent a sex change operation in the US and was granted a new Russian birth certificate in which his sex was con rmed as male.
He then married his girlfriend in a registry office in Limerick using the new birth certi cate, but when he applied for a work permit on the basis that he was married to an EU citizen, the state refused to recognise his marriage.
Same sex marriages are illegal in Ireland and the state also refuses to allow birth certificates to be altered. In the case of transsexuals, this has caused a number of difficulties and has been widely criticised by transsexual lobby groups.
Ireland is one of three countries in Europe yet to act on the issue of allowing transsexuals to alter their birth certi cates after they have undergone gender realignment surgery and to marry in their new gender. The other two countries are Albania and Andorra.
The UK had the same rules as Ireland until a recent decision to introduce legislation which will allow transsexuals to marry.
The UK move followed a landmark case in the European Court of Human Rights which found that British law, which insisted that gender was irrevocably established at birth, violated transsexuals' rights to respect for private and family life.
It came just before a male-tofemale transsexual was due to ask the House of Lords for a ruling that her 20-year marriage to a man was valid.

Home news
Foy ruling aids transsexual's marriage claim
Richard Oakley and Mark Tighe
463 words
21 October 2007
The Sunday Times
© 2007 Times Newspapers Ltd. All rights reserved
A RUSSIAN female-to-male transsexual based in Clare said Lydia Foy's victory in the High Court last Friday should force the Irish state to recognise his marriage to a German woman, enabling him to get residency in the country.
Nicholas Krivenko married Sybille in a civil ceremony in Limerick in 1999, but the government refused to recognise the union because he was born a woman. Same sex marriages are illegal in Ireland. Because the state would not recognise Krivenko's new sex or an altered birth certificate issued to him by Russian authorities, his marriage was not deemed valid.
Krivenko said Foy's "massive win" in the High Court had ended an eight-year struggle for fair treatment. "I will be ringing Lydia to congratulate her on winning and to thank her for what she has done for me," he said.
"My understanding of the ruling is that there is no way now the government can continue to refuse to recognise my marriage to Sybille. I will be applying for residency again on the basis of marriage and I believe they have no reason to refuse it."
The court ruled on Friday that the state had breached the European convention on human rights in the case of Foy, 59, a dentist from Athy, who underwent gender reassignment surgery 15 years ago. Foy wanted the right to change the name and sex on her birth certificate.
Justice Liam McKechnie ruled that the taoiseach must go before the Dail within 21 days to outline how the government will bring Ireland in line with the convention.
He said the state was remiss in not recognising the rights of transgendered people five years ago when most other European Union countries were doing so.
The judge said that Foy, who is still legally married, could remarry if she becomes divorced. There are compelling reasons under human rights legislation to facilitate the remarriage of post-operative transgendered persons.
In 2002 the European Court of Human Rights ruled in favour of Christine Goodwin, a British transsexual, who had claimed that her right to privacy, to marry and start a family were infringed by the UK authorities.
Krivenko, whose original name was Nadia, underwent gender realignment surgery in 1998. He was granted a business permit by the government in 2002, but this allowed him only to be self-employed. He wanted to be able to apply for a job.
Noeline Blackwell, director of the Free Legal Advice Centre which represented Foy, said that the decision was a landmark: "The ball is back with the Oireachtas now so hopefully they will run with it and not force further litigation on people."
(C) Times Newspapers Ltd, 2007

Thursday, 10 November 2011

Fingers in every pie

Our golf cup runneth over

This is a photograph of a photograph that has annoyed Pearse Doherty, the Sinn Fein TD. The ST featured the shot in a recent Atticus column, but I thought it was worth another mention here.

The original picture hangs in the members' bar of Leinster House. As the public are not allowed in this part of the Dail building, our snap was taken by a source using a mobile phone with the flash on, hence the glare over our friend in the back row, second from right. 

The photo shows the winning 1987 Oireachtas golf team being presented with the Army-Garda-Press-Oireachtas Challenge Cup (catchy title that one), sponsored by Irish Nationwide. It includes Michael Fingleton, the then chief executive of the now defunct building society. There too are Fine Gael's Austin Deasy and Tom Enright, Bobby Molloy, formerly of the PDs and Donie Cassidy, former Fianna Fail TD and senator. 

Doherty believes it is "inappropriate to have somebody of the character of Michael Fingleton on the walls of Leinster House given the damage he has caused to the country".  "It is well past time that this picture was taken down from its perch and placed in the dustbin of history once and for all," he told the Irish Independent in April. 

Doherty has also had a go at the fact that an exclusive members' bar, accessible to only TDs and senators, still exists in Leinster House. "The very notion of a private bar in a house that is meant to represent all of the people is outdated and part of the old way. Time for that to go too," he said. 

The Donegal South-West TD has told the ST he will raise his demands for the picture's removal with the Houses of the Oireachtas Commission and we will certainly Watch this one with interest (see what I did there?). 

While the photograph is old, taken a long time ago and those featured could not have known then what we know now, it is nevertheless a reminder to all of the close links some businesses in Ireland make sure they forge with Irish politicians. It says a good deal about the game of golf and even more about the way in which Ireland used to, and, some would argue, still operates.

For those reasons, perhaps Doherty, instead of removing the photo, should see to it that a copy hangs in every bar in the country. 

Wednesday, 2 November 2011


Newspaper Man: Mark Tighe
During my last post on The Sunday Times' FOI request for records of politicians lobbying for barristers and solicitors to become judges, I mentioned the information released would be worthy of a blog post on its own. 

Mark Tighe, the ST journalist who broke the story, has now written one which includes copies of the six letters from the politicians involved. It should be noted that in some cases it is obvious the lawyer in question requested these representations were made on their behalf while in others politicians seems to be responding to the wishes of third parties or colleagues of the person they are acting for. 

All the representations were made by Fianna Fail politicians. They are: John McGuinness and Willie O'Dea, two serving opposition TDs, Mary Coughlan and Jim McDaid, former ministers, Tom Kitt, a former government chief whip and Gerard Collins, former minister and MEP. 

Mark Tighe's Newspaper Man post is here.

Mark Tighe also wrote a Focus article in the ST on the appointment of judges. (Subscription required)

Saturday, 22 October 2011

In the public interest

FOI: The reporter's friend?

The freedom of information act (FOI) is a welcome tool for journalists, but using it to access records in certain cases can be a prolonged ordeal. If an original request is refused, and they often are, the appeal process can be tricky and take a long time with no guarantee of success.

Some requests when appealed to the information commissioner become "FOI battles" for reporters and the stakes are high. A win against a state body or branch of government means a journalist has the chance to set a precedent for the future release of similar records in addition to getting the information in question. An "FOI victory" then not only provides a story, but becomes one in itself. There is, however, a chance of failure, which means money is wasted and the result is publicly recorded.

Mark Tighe, a senior reporter, with the ST was involved in an appeal to the information commissioner recently. Case 100263 arose when Mark was denied full access to records of politicians lobbying for barristers and solicitors to become judges.The information involved will be the subject of a future blog, but the case itself is worthy of examination for a number of reasons.

It shows how branches of government are slow to give out 'personal records' even when it is clear that doing so is in the public interest and how some FOI offices try to provide the minimum information required when dealing with a request. It also shows long-running and tedious an FOI battle can be.

The department in this case was willing to receive representations from public representatives on behalf of third parties but was reluctant to make this process transparent. Some of the third parties involved also tried to prevent the release of the information using exaggerated, irrelevant and even fanciful arguments that showed a very low working knowledge of the legislation.

In some of the cases it was clear that while they were the subjects of representations by a public representative, whether knowingly or not, the people involved believed such activity should remain secret even though it is clear this is not in the public interest. For the purposes of clarity anything which appears below in bold is my own view and not that of Fintan Butler, the investigating officer from the information commissioner's office.

Case 100263 began on July 17 2010.  A reply to a parliamentary question revealed 42 representations were made to the justice minister in relation to judicial appointments between 1997 and 2009. Mark sent a request to the Department of Justice saying he would like "all copies of all representations made to date".

On August 3 2010 the department told Mark it was extending the statutory 4-week timescale, within which a decision must be given, by an additional five weeks so it could consult with the third parties involved. No such consultations took place, but the department's decision was still not issued until October 7 2010, seven weeks outside the statutory timescale and two weeks more than the extended period which the department had allowed itself.

The request was granted, but only in part. Mark was given a list of the politicians who had made representations to the minister from 21 April 1998 to July 2010, but only the name of the minister, TD or senator involved.

The actual letters sent to the minister were refused under section 28 (1) of the FOI Act which states that records can be denied if they would involve the disclosure of personal information. The department made no reference to section 28 (5) which, in certain circumstances, allows for the exemption in 28 (1) to be set aside.

Under section 28 (5) a request can be granted if the public interest in doing so, outweighs the public interest involved in upholding an individual's right to privacy. An argument can be made that it was clear,  at this stage, that the information should have been released on the basis of section 28 (5).

On October 13 2010, Mark sought an internal review making the public interest argument. On November 16 the department released edited copies of the letters to the minister, redacting anything that would reveal the identity of the persons on whose behalf representations were made and all other personal information again citing section 28 (1). The internal review also did not make any reference to section 28 (5) even though Mark had referred to it in his appeal.

Mark next appealed the case to the information commissioner's office stating "the public interest argument is especially strong in cases where the lawyers who lobbied TDs were appointed to the judiciary".

He was asked to confine his request to six representations which concerned people subsequently appointed judges. Of these, one had died, prior to the start date of the FOI process. Mark agreed.  

The justice department said it would consult with the judges in question and, on this occasion, did so. It passed on their observations as a collective response and the only section of the act referred to again was 28 (1). The judges referred to "judicial independence, security considerations and the possibility of misrepresentation" in a context where judges are precluded from publicly defending themselves.

The ST would never publish someone's full address in a case like this so what security considerations were involved is baffling. There is also clear precedent of personal addresses being redacted in similar requests so, even if this was worth flagging, it was never going to amount to an argument against the release of the letters. 

A concern over misrepresentation relates to the handling of the information and not its release so would be irrelevant even if valid. Judicial independence is an interesting argument given it is exactly what the ST was interested in protecting by highlighting how politicians can lobby for people to become judges. 

The investigator, Fintan Butler, wrote to the judges telling them he thought the information should be released in the public interest. One judge responded in writing and three by phone. The written submission was identical to the already rejected one made by the department with some specific comments relating to that judge's security. The telephone submissions also simply repeated the department's previous points

In the case of the deceased judge, her spouse was invited to make a submission and sent an email on July 22. He introduced a number of new arguments claiming it was unfair to a deceased person to release their records when they would not be able to defend themselves. 

He said that as"all judicial appointments since the foundation of the state are political appointments" it would be fairer if the FOI request "would encompass all the appointments of judges to all the courts". He argued the identity of the FOI requester was relevant as the information was "being sought by The Sunday Times, a Murdoch organisation, currently in the dock for its ethical (sic) gathering and dissemination of information". He also pointed out the deceased judge had, prior to her appointment, applied previously to the Judicial Appointments Advisory Board (JAAB) and had been recommended for appointment by that body  

The JAAB can advise the justice minister on the barristers and solicitors it believes would make good judges. Other judges in this case would have been suggested by the board in addition to being the subject of representations by politicians. They would also argue that they were well qualified for their appointments. This, however, is context that should have been provided with the release of the information and not a reason to refuse it.  The identity of a newspaper or person making a request is also irrelevant under the terms of the legislation.

In his findings Butler concluded there is a well-established and long-recognised public interest in ensuring transparency in all aspects of government business. He said:

"Applying this general public interest in transparency to the records at issue here, it is clear that the public interest is served where the process of judicial appointments is made as transparent as possible. It is not just the fact that judges are paid from public funds but more important perhaps is the fact that they are entrusted, on behalf of the people, with independent and far-reaching powers."

Butler found the process of judicial appointments lacks innate transparency and that, outside of the limited scope of FOI, there is very little by way of effective transparency mechanisms.

"Against this background, therefore, there is a particular public interest in knowing whether serving judges have had their candidacies supported by public representatives and, if so, by which public representatives (and from which political party, if any). This public interest carries even greater weight in circumstances in which the Government, in advising the President in relation to the appointment of persons to judicial office, is not confined in its advice to the particular names recommended as suitable by the Judicial Appointments Advisory Board. Neither is the Government confined, in its advice to the President, to naming only persons who have applied to the Judicial Appointments Advisory Board whether or not such persons have been recommended by the Board."

He also rejected the arguments made by the spouse of the deceased judge confirming the identity of the requester and the motivation of a requester, are generally of no consequence in FOI decision making:

"The submission from the spouse of the deceased judge suggests that any intrusion on the right to privacy of a deceased person is in a different category to an intrusion on the right to privacy of a living person. The spouse argues that it is relevant to bear in mind that the deceased judge is not in a position to 'verify or defend [himself/herself] in what might flow from this'. This suggests a view that having had representations made in advance of a judicial appointment carries some negative connotations. At the same time, the spouse observes that "all Judicial appointments since the foundation of the state are Political appointments" which suggests that the making of political representations is the norm."

Butler concluded the public interest served by transparency, arising from the identification of those judges outweighed the public interest served in upholding their right to privacy. He was also satisfied the identity of the deceased judge should be released in the public interest. The only information he decided not to release was the judge's addresses as was expected.

"I am satisfied that any loss of privacy or of respect for private and family life this occasions is proportionate, in accordance with the law and serves the common good. The requirement for transparency in this context applies only to the identification of the judges concerned."

Butler concluded the case on August 9 of this year  Eight weeks was allowed for an appeal to the High Court. None was  lodged and the ST was given the information. On October 9, one year and five months since making the original request, the ST was able to publish its story.