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The Law of Perfidy

Nuremberg accused

Lawyers know that it is improper to use any means to win in the struggle that is litigation. Lay people may also understand that, at least intuitively.

Given that even war is to be conducted within limits we should be glad that this is so. The laws of war are being continuously developed through treaties and, hopefully, through development of the customary laws of war. Customary laws are binding on all nations and states, regardless of express agreement by treaty, say.

Treaties are important elements in the process of the development of customary laws.

Perfidy is the use of treacherous means against an opponent. In modern times it is cited in Article 37 of the 1977 Protocol 1 of the 1949 Geneva Conventions.

“Art 37. Prohibition of Perfidy

1. It is prohibited to kill, injure or capture an adversary by resort to perfidy. Acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence, shall constitute perfidy. The following acts are examples of perfidy:
(a) the feigning of an intent to negotiate under a flag of truce or of a surrender;
(b) the feigning of an incapacitation by wounds or sickness;
(c) the feigning of civilian, non-combatant status; and
(d) the feigning of protected status by the use of signs, emblems or uniforms of the United Nations or of neutral or other States not Parties to the conflict.”

These are wonderful words. The first two sentences are the important words; the last sentence contains examples that do not limit the definition. For instance, an escaping prisoner of war, disguised as a civilian, is not perfidious unless he/she breaches the rule in the first sentence.

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Mad, bad and dangerous to know

Klaus Barbie

On 21st June 1943, the Gestapo raided the house of Dr. Frédéric Dugoujon in Lyon. There they found nine leaders of the French Resistance, including Dr. Dugoujon, Jean Moulin, Raymond Aubrac and René Hardy. Only René Hardy escaped, there and then.

Jean Moulin, returned from Britain, had been charged by General De Gaulle with uniting the various factions within the Resistance. He was tortured extensively by Klaus Barbie in Lyon and died in a railway station in Metz on his way to Germany.

The factionalism in the Resistance was a serious problem. The destructive political divisions in pre-war France between Right and Left persisted after the fall of France.

Little wonder then, that, since that raid, questions have been asked about the identity of the person who betrayed Moulin and the others.

Raymond Aubrac was , understandably, amongst those suspicious of Hardy’s escape.

Immediately after the war René Hardy was tried (twice) by the new French authorities, charged with collaboration and acquitted on each occasion.

As context, in 1940 Charles De Gaulle had been sentenced by a court-martial to four years in prison and later that year was sentenced by another court-martial to death for treason.

As recorded by the New York Times, the fact that René Hardy was shot by the Gestapo as he escaped was of lesser significance than that he escaped.

Ironically, and luckily, for Raymond Aubrac, his enemies would have to wait until 1987 before the “testimony” of Klaus Barbie would “identify” him, Raymond Aubrac, as Barbie’s agent. Barbie was a major war criminal. He personally murdered many people besides Jean Moulin and ordered the deportation of 44 Jewish orphans to death in Auschwitz from Izieu in France.

By then the savagery and power of the various domestic political opponents had waned and Raymond Aubrach, unlike Hardy, was beyond the reach of a drumhead trial.

The fact that he was a Jew and was rescued and liberated by his Resistance companions (including his redoubtable wife) was of lesser significance than that he was perceived to be a communist. While there was no state trial, his enemies led him to try to respond to Barbie’s obvious lies and malice, with the inevitable result that he failed to prove his innocence.

For his part, by the end of his life René Hardy had become enured to the lack of justice for him and people like him; people who had resisted the Germans, who had not sat at home and consequently, being visible, attracted attacks. Often, demands for truth and clarity are cover for hidden motivations.

Careers can be made; interests can be defended and malicious actions hidden, by control of the media or some element of the state. In the case of Raymond Aubrac, it was absurd that the “evidence” against him was the assertions of a duplicitous major criminal with an axe to grind, from whom Aubrac had been lucky to escape once; six degrees of separation is, arguably, insufficient distance from some people.

This writer walked past the Moulin family home in Beziers this August.

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Government gives welcome commitment to “look again” at data-hostile FOI provision

typewriter and index cards

On Friday evening the Government was contacted by the the Office of the Information Commissioner (OIC) regarding Section 17(4) of the new Freedom of Information Bill. The OIC had called me earlier that day to discuss the concerns I’d expressed in my posts earlier in the week.

At the end of my conversation with the OIC, Mr. Stephen Rafferty, a senior investigator at the OIC acknowledged that the wording of Section 17(4) was open to multiple interpretations. He said he intended to contact the Department of Public Expenditure and Reform and suggest to them that they might want to look again at the wording I had highlighted.

I should say that I think that this was a very admirable instance of a public body taking the initiative and meeting a problem as it appears, instead of defending the indefensible unless forced to do otherwise. The Office of the Information Commissioner deserves considerable plaudits for doing this.

On Friday evening, the Journal.ie reported that, having been contacted by the OIC, the Department now

““accepted that there is certainly scope for interpretative difficulties. They will look at it again and take whatever action they deem necessary,””

This is a welcome acknowledgment of the legitimate concerns raised by our office and by other knowledgeable parties about the wording of Section 17(4). It will be interesting to see what form the Department’s response will take in the coming weeks.

Background:

On Monday I wrote a post expressing my concern with the wording of Section 17 (4)(b) of the newly published Freedom of Information Bill.

See: The Irish State wishes to uninvent computers with new FOI Bill

On Wednesday, I followed up with a discussion on the other provisions of Section 17(4) and their likely cumulative effect of blocking effective database-driven transparency.

See: Truths you weren’t meant to know: Why the FOI Bill is the way it is

I had offered the Department that published the Department of Public Expenditure and Reform a right to reply. On Thursday I published their response

See: FOI Bill: The Department of Public Expenditure and Reform’s Right To Reply

 

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FOI Bill: The Department of Public Expenditure and Reform’s Right To Reply

I told the Department of Public Expenditure and Reform that if they would like to make a reply to my FOI Posts, I would publish it. You can read their response below.

***

The FOI Act, like FOI Acts in other jurisdictions, provides for access to records which already exist and are held by public bodies consistent with the public interest and the right to privacy. The Act, similar to Acts in other jurisdictions, does not provide that in the event records are not already in existence, they should be created by public bodies whether through manipulation or analysis of data held, or otherwise. Indeed the Information Commissioner has made decisions in this regard accepting that refusal under section 10(1)(a) on grounds that records are not already in existence, is justified.

Far from causing a new restriction to be placed on access to electronic records, the following steps have been taken in the FOI Bill:

• The definition of record has been updated to take account of technological advances and to clarify that it includes electronic records and encompasses databases (section 2 of the Bill refers).

• The Bill makes clear that an FOI body is not expected to start manipulating and analysing data in response to an FOI request where such manipulation and analysis does not already exist which is similar to the situation in other jurisdictions. However, the new section 17(4) of the Bill recognises that we have moved from a paper-based environment to an ICT-based one and makes fully clear that records in a database may be accessed provided no manipulation to the data is required in order to produce the record. Indeed it goes further that the current Act in that it provides that FOI bodies should take all reasonable steps to extract electronic records from a database and that the extraction of records from a database and providing them does not constitute ‘the creation of new records’ in the FOI context. Instead it sets out that the extraction of records from a database would be akin to searching through paper-based files and extracting records from such files. The provision ensures that a request for the electronic equivalent of a schedule of files would not be denied for the reason that the record does not exist.

• Furthermore, the Bill makes a new provision at section 17(1)(c ) that an FOI body may provide a requester “where available in such form, and subject to subsection (2), with a searchable electronic version of the record”.

It is regrettable that the Government’s attempts to clarify the right of access to electronic records is being interpreted as some sort of new restriction instead of widening the scope of access as it does.

For assistance, examples of data that might be accessed under the new Bill are set out below:

(a) a requester should be given access to records of a public servant’s T&S claims as someone could search the system under a name and print the records off as one new record without doing any manipulation of the information. The new Bill provides that this does not constitute a new record under the Act. ( It is understood that public bodies have argued that because data is held in a number of different sources, they cannot extract that data and copy it into a new record as that would constitute the creation of a new record.)

(b) a public body would not be required to give access to a requester of the top 500 websites accessed by D/PER staff because to do this would require that a programme be written to access the necessary details and sorting and aggregating the information would be required. It is not something that would be stored as a record – data would be compiled/manipulated to come up with the details requested. However, if public bodies wished, they could provide access to such data outside of FOI.

(c ) if a requester sought all emails from one person to another between 1st and 5th May concerning official information, this would be information which could be accessed using a simple search process and downloading relevant records and under the Bill public bodies would be required to provide this.

Truths you weren’t meant to know: Why the FOI Bill is as it is.

In case there is any doubt about why Section 17 (4) of the newly published Freedom of Information Bill was inserted, let us compare an enquiry from data journalist Gavin Sheridan with the new restrictions.

Gavin asked the Department of the Taoiseach for:

“A ‘datadump’, (ie a copy/export of) the Oracle financial management system in use by the Department covering the time period for 2010.”

He also requested that the information be given to him in a new file of a particular format, best suited for data manipulation- a CSV or XLS file.

Section 17 (4) (a) says:

the FOI body shall not be required to take any step that involves the creation of anything for the purpose of searching for, or extracting, records that did not exist at the time of the making of the FOI request

As you may have seen yesterday on BoingBoing Section 17(4)(b) says “the FOI body shall take reasonable steps to search for and extract the records to which the request relates, having due regard to the steps that would be considered reasonable if the records were held in paper format”

Or, what is reasonable shall be decided by pretending all the records in a, (for example) Oracle financial management system, were made of paper.

And, just to be sure, Section 17(4) (d) says:

“subject to this subsection, an FOI body is not required by this Act to take any steps by way of manipulation, analysis, compilation or other processing of any such records, or any data contained in records, held by the body”

In short, the government have paid Gavin and the other busy beavers at thestory.ie the compliment of crafting a law specifically to prevent them from such reporting as, for example;

All the expenditure data for the Department of the Taoiseach for 2010.

Or this story arising from a request for email records from an Exchange Server.

And, of course, most significantly, the record of every expense or allowance paid to the Members of the Houses of the Oireachtas.

If the new Bill’s restrictions had been in place, none of these FOI requests would ever have been granted. And none of the facts the public discovered about Brian Cowen’s limo bills, the warehouse rented by FÁS or the monies paid to our TDs and Senators would have seen the light of day.

What the government has done is reverse-engineered one of Gavin’s database requests. They’ve created a set of reasons to refuse any similar request in the future and written them into the legislation.

However, a Bill is not law. Until it becomes an Act, this Section 4 can be removed with a simple amendment. If you think that data journalism- using the information collected with the public’s resources to inform us about the State we live in- is worthwhile why not contact your TDs and ask them to stop the State from retreating into the shadows?

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The Irish State wishes to uninvent computers with new FOI Bill

The new Freedom of Information Bill was published on the 24th July. Mark Coughlan pointed out on twitter that Section 17 of the Act seemed to be a little… shall we say, backward?

Section 17 (4) (b) in particular contains the following restriction on how much freedom you can expect your information to have.

, the FOI body shall take reasonable steps to search for and extract the records to which the request relates, having due regard to the steps that would be considered reasonable if the records were held in paper format

This then is the yardstick by which ‘reasonable’ action shall be based. You only have to do it if it was reasonable if everything was printed out and you had only paper to work with.

Query a database? Sure, it might only take a moment to use the search box. But if I had to print it all out and go through it by hand, that would be an unreasonable demand. So, no.

The Explanatory Memo which the Government published to go with the Bill is more explicit about the government’s intent.

Bodies are required to take reasonable steps to search for and extract such data (analogous to the steps that would be considered reasonable if such a record was held in paper form)

When he was launching the Bill Minister Brendan Howlin had this to say:

“the current legislation was essentially designed to deal primarily with paper records and the legislative framework for FOI needs to be updated to reflect the transformation that has taken place in ICT since that time

Now we know he meant that special laws to allow the state to pretend that the ICT transformation never happened should be brought in. Civil servants are to be empowered to pretend that computers haven’t been invented and all their records are paper ones.

UPDATE: Truths you weren’t meant to know: Why the FOI Bill is the way it is.

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Supporting Guth Magazine

Guth Magazine masthead

As readers will know, I think journalism- in the sense of actually telling readers things they don’t know but ought to- is both rare and excellent. I also think that most of the paths journalism used to come to us are now blocked by a poverty of resources and ideas.

So that’s why I was delighted to support the Guth magazine project on crowdsourcing site indigogo. Gerard Cunningham (@faduda) and Jason Walsh are attempting to do something new (which is good) and something good (which, frankly, is new) in the world of Irish journalism. They want people to pay (modestly) and in exchange be given news actually worth paying for.

I’ve known @faduda for years now, online and occasionally over coffees too. Let me tell you this; he is a pain in the neck. And, if we get this project over the line, he will be our pain in the neck. He will run a magazine that is neither cranky (years of careful court and tribunal reporting tends to beat any flightiness out of a person) nor meaningless. What it will be- I am certain- will be relentless. Relentless in asking questions, in finding things out, in not giving up.

But he’s not in this by himself. Take Jason Walsh. I’ve actually been interviewed by Jason a few times about law things (with the disorientatingly strange result that my quotes appeared in the Christian Science Monitor). On every occasion I encountered a person who was coming to a story in order to first find out what was true and then tell people about it. I never got the sense he had decided what his story was going to be and was looking for quotes to justify that predetermined narrative.

Speaking to him, I imagine he wears a brown fedora with a “Scoop” card in the brim. He is a newsman. And that’s rare (and precious) in a world of celebrity journalists.

We urgently need an voice in the media with an attention span, one with a memory. If Gerard and Jason are offering to give us one, I am happy to put my money towards Guth and happy to urge you do consider doing the same.

I’m happy to do that because I’m confident that if Guth gets the chance it can become the voice we need.

Now. Go here and pledge a few paltry Euroquid. Go on, we’re done here anyway.

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The Irish Times: Terms and Conditions apply

Conrad's writing desk by Ben Sutherland

The Irish Times is currently publishing a series of short stories on Ireland’s social, political and economic crash under the banner of Legends of the Fall.

As part of this project, they are running a short story competition. Readers may submit their own tales reflecting on the terrible effects of unbridled acquisitiveness and greed on society.

Section 19 of the Terms and Conditions of the competition suggests that it may have a self-referential aspect not otherwise publicised. Win or lose, entrants will have given away the Intellectual Property in their stories.

By entering this competition, you are agreeing that any submissions made become the property The Irish Times Ltd

Aneurin Bevan, the UK Labour Minister who established the NHS would say to his audiences

This is my truth, tell me yours.

It seems the Irish Times, not content with hearing its readers’ truths, wants to own them too.

 

UPDATE:

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The PIAB Injuries Board pitfalls

clockfaces

The Personal Injuries Assessment Board was established and is operated on a flawed proposition; that it deals with matters of such simplicity that injured persons seeking an assessment have no need of legal advice or assistance in doing so.

The proposition is flawed as a matter of commonsense. Before the introduction of the Injuries Board system (then known as the Personal Injuries Assessment Board or PIAB) almost every claimant for compensation for personal injury sought the assistance and advice of a lawyer.

Furthermore, the people of Ireland do not accept the proposition. They act on the basis that the proposition is flawed. The PIAB concedes that approximately 90% of applicants to PIAB make application by means of a lawyer. (That many people cannot be wrong; they know where their interests lie and what is required to defend them.)

Now we see an instance of how absurd the proposition is in Molloy v Reid [2013] IEHC.

The Plaintiff claimed he suffered a personal injury caused by the Defendant. He applied to PIAB for an assessment. In fact he had been slow in doing this; the Statute of Limitations period was coming to a close and he would have been “statute barred” if it had expired.

Eventually, PIAB issued an authorisation to the Plaintiff to issue proceedings in court (in effect).

The Plaintiff received the authorisation. It was then mislaid.

Eventually, PIAB issued a duplicate authorisation which the Plaintiff received by registered post.

Thereafter, the Plaintiff issued proceedings in court. When proceedings are issued, the limitation period under the Statute of Limitations stops running.

The Defendant contended that the limitation period expired the day before the Plaintiff issued his proceedings. The calculation of this time rested upon a determination of the meaning of “issue” in Section 79 (1) of the Personal Injuries Assessment Board Act 2003.

In short, was the authorisation issued when PIAB posted it, or when the Plaintiff received it?

In addition to this conundrum, PIAB had, mistakenly, informed the Plaintiff, when it issued the duplicate authorisation, that he had more time [from the date of the duplicate authorisation]. In fact, the time began running from the date of the issue of the original authorisation.

In the events that happened, the answer lay in the provisions of the Interpretation Act 1937. The time began to run when the Plaintiff was deemed to have received the authorisation in the ordinary course of post. His time did not expire the day before he issued proceedings; it was going to expire at the end of the day he did issue proceedings.

He was in time, just.

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The Abolition of the Seanad referendum

We have declared our opposition to the abolition of the Seanad HERE.  Our opposition springs from the democratic deficit that is the Dail. If Dail Eireann functioned properly there would be no need to worry about the removal of the second house.

Dail Eireann does not function properly and there is reason to worry.

The Government intends to have a short campaign.  A short campaign will hinder effective opposition to the Seanad’s abolition. Campaigns are opportunities to educate the electorate and expose bad ideas. The Government does not want the electorate educated and wishes to protect bad ideas.

Alone, these are grounds for resisting the Government’s plans.

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