By Niall McCracken
A FIFTH of all complaints to the Information Commissioner regarding government departments in Northern Ireland over the last two years related to the Office of First and Deputy First Minister.
New data released to The Detail under Freedom of Information (FOI) legislation reveals that over 160 complaints were lodged with the Information Commissioner about government departments in Northern Ireland since April 2011.
Over half of the complaints about OFMDFM related to the time taken to respond to requests. Under FOI legislation a response should be issued a maximum of 20 working days after a request is received.
In December last year the Information Commissioner’s Office announced that it would monitor OFMDFM for the first three months of this year over concerns about the timeliness of its responses to Freedom of Information requests.
An update on OFMDFM’s performance is expected to be released in May, but a spokesperson for the ICO told The Detail that it expects the department to have "used this opportunity to get their ‘house in order’ and demonstrate that they are getting back on track.”
The complaints received by the ICO related to how executive departments handled requests submitted under the Freedom of Information Act (FOIA), the Data Protection Act (DPA) and the Environmental Information Regulations (EIR).
- 116 cases related to FOI and EIA complaints including general right of access and refusals of requests and time compliance.
- 45 cases related to complaints in relation to DPA, including subject access requests, disclosure of data and inaccurate data.
Twenty percent of all FOI complaints against executive departments were either upheld or partly upheld. While the ICO found that in almost 40% of cases involving the Data Protection Act, compliance was unlikely to have been achieved by the relevant department. The remaining applications were either withdrawn, informally resolved or there was insufficient evidence to proceed.
See the bottom of the story for a full breakdown of the figures.OFMDFM
In December 2012 the Commissioner announced that OFMDFM was one of four public authorities that the ICO would monitor between 1 January 2013 and 31 March 2013. The Department for Education (DfE), the Department for Work and Pensions (DWP) and the Wirral Metropolitan Borough Council were also listed.
The authorities were selected as they failed to respond to 85% of FOI requests within the time limit of 20 working days or had exceeded the time limit by a significant margin on numerous occasions. OFMDFM’s performance statistics for all requests received during 2011 showed that only just over half were answered on time, with further delays encountered in 2012.
As previously reported by The Detail in May 2011, the Information Commissioner’s Office in London intervened when OFMDFM failed to respond to an outstanding FOI request submitted by The Detail.
This request centred on a review report into the Children’s Commissioner’s office. The documents were eventually released more than five months after the original request.
In a statement issued to The Detail a spokesperson for the ICO said: “Responding to Freedom of Information requests within the time limit of 20 working days is not only a legal requirement under the FOI Act, but also an important means of demonstrating transparency and accountability to the UK taxpayer.
“We have previously expressed concerns about the timeliness of the Office of the First Minister and Deputy First Minister’s (OFMDFM) responses to FOI requests. This is why the authority was selected for monitoring during the first three months of this year.”
In a recent decision noticed published in January this year, the information commissioner highlighted further concerns relating to an FOI sent to OFMDFM about teachers being exempted from equality legislation.
Although the request was eventually answered, the commissioner states that there were ongoing issues around the lack of meaningful communication with the complainant.
The decision notice states: “The Commissioner is of the opinion that OFMDFM failed to inform the complainant as to the reasons for the continuing and excessive delay, and failed to provide any indication as to when a substantive response would be issued. Again the Commissioner finds this unacceptable. An explanation of the ongoing delay would at least have kept the complainant informed as to the progress of his request."
We asked OFMDFM for a comment on the issues raised by our FOI and the ICO’s review, a spokesperson for the office said it will continue to “co-operate closely with the Information Commissioner’s Office.”
The ICO told The Detail it is likely to be the end of May before it is in a position to provide an update on how OFMDFM has performed so far this year.
In a statement to The Detail a spokesperson said: “We will shortly be analysing their performance during this period and expect the authority to have used this opportunity to get their ‘house in order’ and demonstrate that they are getting back on track.”NATURE OF COMPLAINTS
In its FOI response to The Detail the ICO provided a full breakdown detailing the date each case had been completed and its outcome.
If the ICO rules in favour or against a complainant it issues a decision notice. Full details of all decision notices are published online.
An example of one case brought to the ICO resulted in the the Sunday Life publishing a story last month on a memo documenting a conversation between the Finance Minister Sammy Wilson and the First Minister Peter Robinson and their support for increasing special advisers’ pay.
In July 2011 the Department of Finance amended the salary for “Band B” special advisers within Northern Ireland government departments. The minimum salary was unchanged at £57,300 but the maximum salary was increased from £82,531 to £90,000.
The documents had previously been withheld from the Sunday Life by the Department of Finance and the ICO’s decision notice in this case provides an insight into the behind the scene reluctance to release the information.
With this case the Sunday Life had asked DFP who initiated the pay review, why it was necessary and the reasons given/documented for it.
DFP claimed some information was exempt as it qualified as information that if released would prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs.
The department had previously confirmed that the withheld information comprised two file notes compiled by senior officials. The file notes contained details of conversations involving the Minister for Finance and Personnel, or private office officials, and subsequent actions.
The Department’s submission set out the argument that disclosure of the withheld information may lead to less candid and robust discussions, particularly in relation to pay of senior civil servants and special advisers. The Department was of the view that the knowledge that future engagement between officials and Ministers noted for the record may be released would inhibit both parties’ ability to deliberate, offer advice freely and frankly and express themselves open, honestly and completely.
However when the case reached the ICO the Commissioner ruled that there was a legitimate public interest in the public being informed as to the remuneration of special advisers in Northern Ireland.
The decision notice report stated: “The employment of special advisers has been the subject of significant public debate, particularly focused on the background of the advisers. The Commissioner noted that special advisers were political appointments and not subject to the merit principle and are able to earn up to £90,000 per year, which is well above the average salary in Northern Ireland. In addition special advisers (unlike permanent civil servants) operate from a party political viewpoint, rather than the position of political neutrality held by the traditional civil service."
In this case the Commissioner took the view that there was a very strong case for allowing the public to be able to see the arguments that were made by senior officials in relation to the decision to increase the maximum salary for band B special advisers.
Click here to read the full decision notice.