By Kathryn Torney
THE Office of the First and Deputy First Minister has finally handed over material which shows it intended to shield Children’s Commissioner Patricia Lewsley from criticism over a payout for legal costs – by agreeing it could be covered by an insurance policy she took out without prior permission.
More than five months after The Detail requested documents relating to a critical report into the office of the Northern Ireland Commissioner for Children and Young People (NICCY) and following an intervention by the Information Commissioner’s Office (ICO) in London, 28 pages of material have been released.
Our Freedom of Information request centred on the review report which examined the effectiveness and efficiency of the NICCY office. It was commissioned by OFMDFM and carried out by PricewaterhouseCoopers.
The material released by the OFMDFM also includes two pages of notes from a meeting held in November 2009 involving representatives from OFMDFM and the Children’s Commissioner’s Office.
At this meeting they discussed using a Directors’ Liability Insurance policy obtained by Mrs Lewsley to cover the costs of a court case taken by a member of staff. The department’s view was also sought on settling the case. The insurance policy offered up to £250,000 cover for legal costs.
The papers show that OFMDFM officials concluded that “there was least risk to public money and the least risk to the commissioner’s reputation” to use the insurance policy – which we have learned was obtained without Department of Finance and Personnel approval. Also contained in these pages was the line: “…she (the commissioner) can state that the case was handled by an insurance company and the final decision was not hers.”
The Detail had already uncovered – from NICCY’s annual report for 2009/10 – that £30,000 was paid to E Ryan (former Head of Legal and Casework at NICCY) as part of a “negotiated termination settlement”. She left NICCY’s employment on January 31st, 2010.
The annual report also confirms that retrospective approval was not given for holding the insurance although it was given by DFP in relation to making the payment.
We reported last month that OFMDFM had been warned by the Information Commissioner’s Office that it could be found in contempt of court if it failed to respond to our request for information. The ICO issued a formal notice which directed the First Ministers’ Office to respond to our request within 35 days. The response came on day 34.
WHAT WAS RELEASED – AND WHAT IS BEING HELD BACK
The released papers include emails sent between officials discussing holding the report back from the media and a ministerial submission to Peter Robinson and Martin McGuinness giving the department’s opinions on the report’s hard-hitting recommendations.
The department has now confirmed that the report was handed over to OFMDFM on November 10th, 2010 – but only released to the media in February of this year. In the same month, NICCY confirmed that Patricia Lewsley had been reappointed as commissioner for a further four years.
Much of the documentation released by OFMDFM has been severely redacted with many names blacked out and what appears to be important sentences removed. Reasons given by the Office for doing this include “legal professional privilege” in relation to legal advice given and that “the disclosure of free and frank views (given by officials) would not be in the public interest”.
Some names, apparently of junior members of staff, have been erased because the department claimed that this was “personal data” which did not add any value to the information being disclosed. However, the result is that much of the email correspondence between officials is confusing to read and in many cases the name of the sender has been removed.
The Detail has challenged the decision to remove what appears to be an important sentence from the ministerial submission because it was decided that this was “not relevant” to our request. We are arguing that the document should have been released in its entirety unless information is covered by an official exemption contained in the Freedom of Information Act. This issue is now being internally reviewed by OFMDFM.
Following the redaction, the paragraph now reads: “However, due to a number of unforeseen developments….. (middle of the sentence blacked out)…. the final review report was not completed until early November (2010).”
Our Freedom of Information request asked for all documentation held by the department relating to the NICCY report’s conclusions and the decision to withhold this report from the media. We also asked for documents relating to the “negotiated termination settlement”.
The department breached two sections of the Freedom of Information Act by failing to provide the information we requested or a valid refusal notice within the statutory time limit of 20 working days. OFMDFM’s handling of the request was strongly criticised by the ICO which published its decision notice in full on its website (www.ico.gov.uk).
It included: “The Commissioner notes with concern OFMDFM’s explanation that the delay in responding was due to the need to obtain approval from the Private Offices. The Commissioner would therefore remind OFMDFM that the Act does not provide for such an extension to the statutory time limit.”
The report, which was eventually released to the media in February, was very critical of NICCY.
Its conclusions included that the office’s priority areas were “currently too broad and too general”, there was a skew of resources towards Communication and Participation and that the senior management team needed to undertake training.
It confirmed that some of the recommendations from the first review of the office in 2007 had not been followed through, it questioned the cost of the offices based in a prime, city centre location and also recommended “refresher training” for the Commissioner and Chief Executive Gerry Campbell.
OFMDFM’s ministerial submission to Mr Robinson and Mr McGuinness (dated December 17th, 2010) states that there are “significant concerns “ in the NICCY report relating to “identifiable gaps and weaknesses in some important areas of the Commissioner’s financial monitoring and a lack of availability/provision of meaningful performance management data.”
The papers now released to The Detail show that OFMDFM agreed that measuring performance within NICCY was an area which required “urgent attention”. And the department papers also refer to the report stating that “the Commissioner still has some way to go with regard to putting in place comprehensive robust financial management processes.”
The department agreed that more formal reporting and regular monitoring of financial budgets on a monthly basis was needed and that this key area requires “urgent remedial action”. It also confirmed that Ministers would be considering the arrangements for all Northern Ireland commissioners “in the light of effectiveness and value for money”.
The OFMDFM emails, which centre on the delay in releasing the NICCY report to the media, show that the First Ministers’ Office did not want to release the report until it had been seen by the OFMDFM Assembly committee. However, it was not released even after the committee saw the report on January 19th, 2011.
An email dated Tuesday, January 25th from an unknown person (this name was blacked out) in the Sponsorship, Governance and Funding Pool Office of OFMDFM confirms they had been told by the Executive Information Service that FM (First Minister’s Office?) had instructed them on Thursday at 5pm not to release the report.
Earlier that day a draft department press release was circulated via email which aimed to “set the record straight” after a press release had been issued by the Children’s Commissioner’s Office on the report on January 20th. The NICCY release said that the report backed the Children’s Comissioner’s Office remaining in its current form.
The OFMDFM email from John McKenna states that the department’s draft press release “seeks to provide a more accurate summary of the PWC report and, in doing so, counter balance the skewed NICCY effort.”
A copy of this draft release is not included in the paperwork released to us.
A series of emails were sent after we asked on January 25th for a comment on why the report was not being released.
“PS/Junior Minister Kelly” – their name is removed from the papers but we assume they are the Private Secretary to Minister Kelly – confirmed in an email that a comment had been cleared for release on January 26th but this was never sent to The Detail.
On January 26th, we lodged our Freedom of Information request asking for a copy of the review report. It was eventually released to us on February 18th – a week after the News Letter ran a report based on a leaked copy.
On January 27th, another official (name redacted) asks in an email if people had found out “why FM’s side had put a hold on the publication of the report”.
The response (again, we do not know who this was from) states: “still no word on why only raised concerns again about overall performance and I provided an update on our meeting this morning.” (sic)
It is not clear whether the overall performance this person refers to means the performance of the Children’s Commissioner or someone else.
The last email released to us by OFMDFM was sent on January 31st by Tim Losty who said he had sent a note to SPADS (the special advisors) and that he would chase this up. On the same day we submit an additional FOI request asking for information on why the report had been withheld and documents relating to the £30,000 payment.
THE COMMISSIONER’S RESPONSE
We asked the Children’s Commissioner for a comment on the £30,000 settlement.
Ms Lewsley said: “I am bound by a legal enforceable confidentiality agreement, which means I cannot comment on the nature of the negotiated termination settlement.
“With regards to the insurance, payment was made with the approval of the Office of First Minister and Deputy First Minister.”
She stressed that the review of her office acknowledged the need for a Commissioner for Children and Young People and said it was “something that all parties in the Assembly recognised when they created my post with greater powers than my counterparts in other parts of the United Kingdom”.
She continued: "My job is to influence Government to make sure it improves the lives of children and young people. The work of my office is to identify and advise Ministers where there are gaps in services, policy and legislation.
“My performance is set and evaluated by the Office of the First Minister and Deputy First Minister in agreed business plans over a three year corporate plan."
And: “I would reiterate that we engage in ongoing meetings with the Office of First Minister and Deputy First Minister, my accounts have always been signed off by auditors and I make sure that my work is open and transparent and can be scrutinised appropriately.
“I would also like to note that more than 80% of the review’s recommendations were completed prior to publication of the review, or have been completed since. Work to complete action on the remaining recommendations is underway.”