A Fragile Flower

How serious are Northern Ireland’s First Minister and Deputy First Minister about transparency? Not very, it seems. To take 320 days to answer a request might be a one-off error; but foot-dragging in a number of recent FOI responses suggests the Ministers approach disclosure with all the enthusiasm of a sulky teenager scribbling homework on the way to school – and nobody seems to be doing anything about it.

The long delay to Jeffrey Dudgeon’s request, finally delivered a day before they would have been forced to disclose by a court, was clearly not a case of mere sloppiness, a fact no doubt evident to the Information Commissioner, whose growing exasperation at the Office of the First Minister and Deputy First Minister (OFMDFM) can be read through the polite lines of repeated Decision Notices:

12 May 2011 – after an internal review was still uncompleted after more than 70 days:

“The Commissioner would also expect a public authority to inform a complainant if the internal review was going to take longer than 20 working days and explain why. The Commissioner would remind the public authority of its obligations in this regard.”

24 May 2011 – a January request was still under consideration by the Minister’s Private Offices. The Office was unable to say when it would be able to respond.

“The Commissioner would … remind OFMDFM that the Act does not provide for such an extension to the statutory time limit. The process of seeking such approval must be completed within the time limits set out in the Act.” 

4 July 2011 – An enquiry from the previous October had resulted in a review for ministerial approval by January, but nothing more was heard until a request from the Commissioner in June, when it was promptly provided.

“The Commissioner notes that this is the third Decision Notice he has issued in three months relating to a failure by OFMDFM to respond to a request. The Commissioner has expressed his concern to OFMDFM and will consider whether further action is necessary.”

26 September 2011 – a July response was still outstanding after two months.

“Prior to this decision the Commissioner has issued three Decision Notices in the past six months which record OFMDFM’s failure to comply with the Act in respect of timescales for response. The Commissioner expects this pattern of non-compliance to be addressed by OFMDFM.”

24 October 2011 – four long-overdue requests. Three were from September the previous year, the other from December.

“Prior to this decision the Information Commissioner has issued at least three decision notices in the previous six months which record the failure of OFMDFM to comply with FOIA in respect of timescales for response. The Information Commissioner expects this pattern of non-compliance to be addressed by OFMDFM.”

(By the standards of decision notices, that’s pretty much steam coming out of the Commissioner’s ears)

12 December 2011 - two months later, another failure to meet the statutory timetable.

"despite agreeing to disclose the financial information OFMDFM did not do so until three months later. The Information Commissioner reminds OFMDFM of its obligations in relation to the statutory time limits in the FOIA."

16 July 2012 – after six months of quiet, the Commissioner feels compelled to raise his voice again, with a request from January was still uncompleted:

“The Commissioner is particularly disappointed that OFMDFM has failed to respond to his correspondence regarding this complaint. The Commissioner considers it important to give public authorities an opportunity to reconsider its handling of the case before issuing a decision notice. Many public authorities take this opportunity to rectify procedural failings, or provide additional explanatory information to the complainant. However that has not happened in this case”

The Commissioner, in such circumstances, is entitled to call upon a public authority to sign an undertaking to improve their behaviour, like this one from the Welsh Assembly. But instead, he again simply “reminds OFMDFM of its obligations in relation to the statutory time limits in the FOIA.”

It’s not just on the Information Commissioner’s website that this can be seen: over at What Do They Know, requesters have been facing the same approach – consistently being told that long overdue enquiries were ‘still under consideration’ – as if they had never heard of the Commissioner.

There’s good evidence that this is not simply incompetence or slack management – in fact, that the culture of the Office of First Minister and Deputy First Minister is one of resistance to enquiries, and this may well be a product of Northern Ireland’s peculiar politics.

With what Mick Fealty of the Slugger O’Toole website calls the ‘fragile flower defence’, those currently in charge like to claim that the province needs special treatment to defend it: that certain disclosures “could prevent the maturing of the Executive in Northern Ireland” because they would threaten the cohesion of the mandatory coalition government.

The Belfast News Letter, which says the Executive wrote this year to Westminster asked to be allowed, like the government in the South, to charge for requests (which caused an immediate decline in their number there), seems sceptical about this claim, pointing out that the former DUP First Minister, Ian Paisley, criticised what he called ‘lazy journalists’ using FOI after his son’s close business relationship with a developer was revealed using the Act. Interestingly, his Sinn Féin counterpart, Deputy First Minister Martin McGuinness told the Assembly this year that ‘There is absolutely no doubt that freedom of information allows people to abuse their access to information.’ What this suggests is not a genuine concern for security but rather a grudging approach to transparency.

Finally, in order to find out more, I submitted an FOI request to the Office of the First Minister and Deputy First Minister, asking how many requests this year had been overdue and for how long.

Guess what? The response is now overdue.