Thread by @gavinsblog

Given the infamous National Broadband Plan has been in the news of late - SSE pulled out of the eNet consortium and the whole project now looks in doubt - it's worth looking again at the FOI case involving eNet.. 1/ many

*sips hot chocolate*. *Ready your popcorn*

Way, way, way back in the mists of time, there was the original national broadband plan. It was called Metropolitan Area Networks (MANs). It was 2002. Dermot Ahern was the minister. 19 schemes were approved. €32m!

In this example, the scheme was run by the SERA. High speed broadband was to be made available in various towns...

"no question of delays" "Fully committed". Sounds familiar.

Fast forward to Dec 2003 (15 years ago!). Ahern is still Minister.

€140m plan to connect 350,000 people!! In the regions! Sounds familiar doesn't it? The earlier scheme cost €64m - bringing the total to nearly €200m.

A year later, and Brian Cowen, writing in the Irish Times, boasted about the investment. "Excellent progress". "€200 million"! "Will bring cheap, always-on internet" Oh my heart. This money was under the NDP, and grants from the EU.

March 2006. Irish Times. EU approves the cash! At this point eNet won the public tender to market and operate the first 27 MANs. LOOK at all those towns getting their broadband!

September 2006. Peak Celtic Tiger and Noel Dempsey is the Minister. Let's build more MANs!

2009. eNet are doing great. Vodafone wants to use the MANs. eNET are the sole operator of the State asset, that EU and Irish public money paid for.

July 2009. eNet wins the second contract to operate the next batch of towns. Roads across Ireland are being dug up for these new ducts.

The 2004 tender was for 15 years.
The 2009 tender was for 15 years (IIRC this was an uncontested tender)

Another deal! eNet is doing its job as operator of the State asset, right?

600,000 consumers use the MANs daily! Broadband problems solved!

September 2013. eNet, exclusive operators of the MANs, sells itself to Granahan McCourt. The operating profit looks good too. And the State is obviously getting a dividend from the operator, right?

So there are some concession agreements - essentially the agreement between the Dept of Communications and eNet to operate the MANs on the State's behalf. eNet has now been sold to a US-based investor.

It was just after the New Year's and I was bored. I'd been thinking about the whole MANs thing since the McCourt acquisition. I wondered:

1. Is anyone using the ~€200m asset?
2. What are the terms of the concession agreement, exactly?
3. How much has the State got from eNET?

January 2, 2015. I file an FOI to the Department. Asking these types of questions. There's some wrangling. But they outright refuse to let me see the concession agreement...

... Which is highly unusual. You see since 1998 when FOI came in, it has been the norm that any contract awarded is releasable (for the large part) despite commercial sensitivity concerns because public interest outweighs it. It's public money..

Anyways, there was a Third Party notification (eNet were informed). They argued the agreement shouldn't be released.

In its refusal to release the contract the Minister noted:

It's worth repeating: the State was arguing that this enormously valuable contract (remember eNet had exclusive access to the MANs when it was sold) was not releasable to the public, despite EU money and Irish money and the asset was still owned by "us".

Anyways. I clearly didn't agree with this decision. The public has a right to know about the contract. I appealed to the Information Commissioner, expecting a win, given precedent.

The Information Commissioner wrote to eNet. The Minister's reasoning of May 2015 (actually the Department) is bizarre IMHO. It essentially argues for secret contracts.

More correspondence. In July 2015 the Department argued against the public knowing stuff. Recalling again this is a public tender contract, involving a concession agreement on a State-owned asset

August 2015. The Department releases the contract to the Information Commissioner. It says the whole contract shouldn't be released. Oddly, the Department thinks a confidentiality clause in the contract means FOI can't apply. They are concerned about transparent pricing too.

November 2015. In an extremely detailed decision the Information Commissioner comes down on my side of the argument. Yes it's commercially sensitive - but it should still be released, because public interest.

And, logically, pointed out that Department really ought to know that confidentiality clauses in State contracts *isn't a goer*

*sups tea*

The Commissioner concluded - it's worth reading this bit in full. Release the contract lads.

So I'm happy yes? Of course. My original view was backed up. But the Department saw it differently. It said the Information Commissioner was wrong, and appealed the decision to the High Court. I had many pints that evening.

One thing that bothered me during the sea of Guinness?

This is a Department that *doesn't have a great track record* in awarding telecom licences. *coughs*

Anyways. Off we go to the High Court.

(btw you can read the Information Commissioner decision in full here oic.ie/decisions/d150…)

I decided to lawyer up on my own behalf, exposing me to costs if I lose. But this case goes the core of how FOI functions. And the Department are flat wrong. @FPLogueLaw came in for me, and we got the excellent John Kenny BL as our barrister. These documents landed at my door:

The submission was 90 paragraphs from the Department. I won't go through the whole thing, but essentially it questioned various elements of the FOI Act 2014 (the new Act is what we were using) and how the Info Comm had interpreted it.

You can read our full submission here. Note: we are now in February 2017. documentcloud.org/documents/4374…

Anyways, it went to hearing. We argued over two days. Counsel for the Minister. Counsel for the Information Commissioner. Counsel for me. We got Judge Noonan...

Then we waited for judgment. It arrived in April 2017. (here courts.ie/Judgments.nsf/…) We (and the OIC) won. The Department lost. Judge Noonan refers to our arguments many times in the judgment.

Now. *sips tea*. Some things to note, because this is where things get interesting...

Firstly, eNet did not participate. Even more oddly, the Minister filed eNet's affidavit. The judge mentioned it too.

So anyways. Judgment is delivered on April 6, 2017. The Department can appeal to the Court of Appeal within x number of weeks...

... and note too, the new Minister, @DenisNaughten and his Department are carrying out a review of the MANs. (This PQ from March 2017, just before the judgment).

.. and it's April/May 2017 and we're waiting to see if the Department will appeal the judgment (we think they will)...

Now. Remember earlier in the thread that I mentioned that eNet had 2x concession agreements? One in 2004 (for phase 1) and one in 2009 (for phase 2), both lasting 15 years. So one would expire in 2020, and the other in 2024. eNet had sold itself in 2013.

In arguably a highly unusual move, while we waited for word of an appeal, @DenisNaughten did something. In answering a PQ on May 23, 2017, he arbitrarily extended the terms of these contracts to 2030. Both of them. Without tender. "This provides certainty to the market". Indeed.

A short time later we learned that the Department would appeal to the Court of Appeal. They had lost at the Information Commissioner stage and then at the High Court, but they persist..

.. and then something else happened... *sharp intake of breath*. *sips tea*..

... just after we got word of the appeal, eNet / McCourt sold 78% of itself to... the State (effectively)... colour me puzzled. The deal was worth "up to €200m"

This needs some explaining. Back during the bust, the NTMA and its replacement set up something called the Irish Infrastructure Fund (IIF). €300m of public money was pumped in, and Irish Life were appointed to manage it.

One of eNet's most important assets - its contracts with the State to manage the MANs, had just been arbitrarily extended to 2030 by the Minister. The company was sold two months later...

any uncertainty about eNet's winning renewal of those contracts in 2020 and 2024 had been removed by the signature of the Minister. It was nice of him to arbitrarily remove those doubts. And eNet to sell 78% of itself when it did..

So what has the State done with public money? To some degree we have bought access to an asset we already own. eNet does have other businesses besides the MANs, but it still is a core part of its businesses... I mean..

eNet is now 78% owned by the IIF, which is mostly owned by the public. And if you think we can FOI that - no we can't. It was done in such a way that it's pretty damn hard to find out the terms of the deal (not saying that was deliberate).

the rest is still owned by McCourt. The money went back to the US to Oakhill et al who were the other shareholders. Other cash went to the exec team via a separate company (from what I could see)...

So now: eNet is the last bidder for the National Broadband Plan. SSE (their primary infra partner in the consortium, has pulled out). The European Investment Bank has approved €500m towards the plan..

So what now? Who will fill SSEs boots in the consortium? What players in the Irish market have the capacity to build the ducts and cabling required for the broadband plan? I can think of a few. *cough*. And will any of this happen before our court case in February?

Some questions for me. The bulk of the cash for this project will go to the contractor who digs holes and lays cables.

The last time there was a contract this big? Esat Telecom. Same Department too.

Why is the eNet contract secret, and why has the Department fought us?

Why has SSE pulled out? Did they do due diligence on eNet consortium and decide it wasn't worth it?
If eNet get the contract, will it be public? Who will eNet contract(the bulk of the 100s of millions needed). Maybe Actavo (SiteServ) will get the subcontract? Or will eNet do it?

And another question:

If eNet get the contract (20 years, then in perpetuity), will they do what they did before, and just sell themselves to the highest bidder? It's a pretty valuable State contract, a bit like the MANs ones. The IIF will win I guess? And McCourt.

It's all a bit mad isn't it? *sips cold tea*

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Cheers folks. I think I need a Guinness after that. Please do support Right To Know! righttoknow.ie/support-us/