FOIMan finds that the absence of a Northern Ireland government is having unforeseen consequences for FOI applicants.
There are no doubt times when many of us think we’d be better off without politicians – you could be forgiven if now was one of those times. We should be careful what we wish for.
In Northern Ireland, there have been no ministers in government since the late Martin McGuinness resigned as Deputy First Minister in January of last year. Most people would probably assume that this doesn’t have a significant effect on the day-to-day running of government departments whether they be in Westminster or Belfast. Civil servants can keep things running. But perhaps surprisingly, many quite crucial but low level decisions cannot be taken without at least the signature of a minister. For example, on visits to Belfast to deliver training in the last year, I’ve heard taxi drivers grumble about delays to road improvements simply because there is no minister to give the nod to proposed schemes. There will be lots of quite simple matters that most of us take for granted that are not happening in Northern Ireland simply because there’s no one to approve them. And FOI administration is amongst the areas to be hit.
One example of this is when someone requests access to a record that has been transferred to the Public Record Office of Northern Ireland (PRONI). If exemptions apply to the information concerned, according to s.66(2) of FOIA, it is up to the relevant Northern Ireland minister to decide who should be consulted in the department that transferred the records (as in, which other minister). Since there is no minister to decide (or indeed to consult) there is a problem. In a batch of decisions issued last month, the Information Commissioner wrestled with this conundrum and concluded that whilst the Northern Ireland department that is responsible for PRONI is clearly in breach of FOIA for not responding within 20 working days, the Commissioner cannot make the department do anything since they don’t have a minister. Those making requests for transferred information in Northern Ireland are effectively losing their rights because there is no minister.
It works the other way too. If Northern Ireland government departments want to withhold information relating to policy making, they are generally able to rely on s.35(1)(a), the exemption covering the formulation or development of government policy. However, if that or other exemptions don’t apply, they would want to rely on the exemption at s.36(2)(c), which only applies if the authority’s qualified person provides an opinion that disclosure would or would be likely to prejudice the effective conduct of public affairs. In Northern Ireland’s government departments, the qualified person is, as it is in Westminster departments, a minister. So they are currently unable to use the ‘safety net’ exemption in FOIA. How ironic that Northern Ireland’s government departments find themselves stuck for a backstop.
In practice of course, this is likely to impact on applicants in the form of considerable delays in responses to their requests.
It turns out that not having a minister is a bit of a problem for anyone who wants to make, or is tasked with answering, an FOI request.