Our battle to obtain the documents

By Kathryn Torney

January 24 2012:

Our Freedom of Information request is sent to OFMDFM.

We ask for all documentation held by OFMDFM relating to the recent recruitment to the post of Head of the Northern Ireland Civil Service including documents relating to the decision to confine the arrangements to internal competition within the existing permanent secretary group and any concerns raised by anyone in relation to this.

We also request copies of any documents held relating to how the decision to appoint internally only compared with the process used in England and the Republic of Ireland and papers relating to the appointment of Sir Bruce Robinson to the position of head of the Civil Service in 2008.

February 1 2012:

We email OFMDFM to ask for confirmation of receipt of our email as we have had no response. An acknowledgement letter is sent by OFMDFM via email a few hours later.

February 21, 2012:

OFMDFM emails us a letter to confirm it holds the information we have requested but the letter also states that the information cannot be disclosed at this time.

The letter says that the information is being withheld as it falls under the terms of the exemption in sections 35 and 42 of the Freedom of Information Act as some of the information relates to the formulation of government policy and legal professional privilege. In applying these exemptions, OFMDFM said it has to balance the public interest in withholding this information against the public interest in disclosing it.

“By virtue of section 10(3) of the Freedom of Information Act, a public authority which is considering where the balance of the public interest lies does not have to comply with a request until such time as is reasonable in the circumstances. OFMDFM has not yet reached a decision on the balance of the public interest.”

The letter continues: “I consider that it will take approximately 10 additional working days in order to respond to your request. I therefore intend to provide you with a full response by 7 March 2012.”

March 8, 2012:

We send the following email to OFMDFM: “Could you please update me on my FOI request? I was expecting a response yesterday.” The response to this, sent on the same day, states: “Apologies for the delay but this request is still under consideration.”

We reply, again on March 8, quoting good practice guidance issued by the Information Commissioner’s Office on time limits to consider the public interest test.

This states: “In cases where a public authority is considering the application of an exemption that is subject to a public interest test (known as a qualified exemption), the FOIA requires the authority to reach its decision “within such time as is reasonable in the circumstances. The FOIA does not define the word ‘reasonable’, but in our view it is not acceptable for a public authority to take, as a matter of course, several weeks to assess the public interest considerations.”

It continues: “Our view is that public authorities should aim to respond fully to all requests within 20 working days. In cases where the public interest considerations are exceptionally complex it may be reasonable to take longer but, in our view, in no case should the total time exceed 40 working days.”

We also stress that the guidance states that we should be informed of an estimated date of when the response will be issued.

March 9, 2012:

OFMDFM replies via email: “Thank you for your email. I am aware of the guidance that you refer to. However, given the complex and detailed nature of your request I am not in a position to give you an exact date for response.

“I can assure you as stated in my previous email that your request is still under consideration. I am sorry that I cannot be any more precise.”

We reply on the same day, again asking for an estimated date for the response and pointing out again that the Information Commissioner’s Office has said that even where the public interest considerations are “exceptionally complex” the total time should not exceed 40 working days.

March 12 2012:

OFMDFM replies: “At this stage, I cannot provide you with an estimated date of response. I can assure you as stated in my previous emails your request is still under consideration. I am sorry that I cannot be any more precise.”

March 21 2012:

We email OFMDFM to ask for an update on our request.

March 27 2012:

OFMDFM replies: “I have no further updates for you at this stage. Your request is still under consideration.”

April 11 2012:

We lodge a complaint with the Information Commissioner.

May 25 2012:

The Information Commissioner’s Office (ICO) confirms our complaint has been received and allocates a case reference number.

June 12 2012:

We email the ICO to say we have received their email on May 25 but have not yet heard from anyone from the Complaints Resolution team. We ask for an update on how our complaint is progressing. We receive an email later that day to say a senior case officer has taken on our complaint.

In her email, the case officer said that in cases such as this they send the public authority a letter advising that if a substantive response is not issued to the complainant within 10 working days the ICO will issue a decision notice requiring that authority to do so.

June 14 2012:

We reply to this email agreeing with the proposed way forward and asking that the letter be issued.

On the same day, the ICO emails OFMDFM about our complaint. This email states that OFMDFM needs to comply with our request in full within 10 working day (by June 29), either by providing the requested information or a refusal notice which explains the public interest considerations in relation to the exemptions cited. The case officer writes in her email to us, that if OFMDFM fails to comply by June 29, a decision notice will be drafted requiring it to comply.

July 3 2012:

We write to the ICO senior case officer to let her know that we have not received any response from OFMDFM, despite the ICO directing a reply within 10 days. We ask that a decision notice is written.

July 16 2012:

The ICO issues a decision notice by post to OFMDFM.

The decision notice states that the Commissioner requires that OFMDFM responds to our request either by disclosing the requested information or issuing a refusal notice within 35 calendar days of the date of the decision notice (July 16). The notice says that failure to comply may be dealt with as Contempt of Court.

The notice confirms that the ICO wrote to OFMDFM on June 14 to remind it of its obligations under FOIA and that a decision notice would be issued if it did not respond to our request – however, the Commissioner did not receive any response or further correspondence from OFMDFM.

The decision notice states: “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, so the Commissioner has proceeded to issue a decision notice.

“In the absence of any response from OFMDFM the Commissioner finds that OFMDFM has breached section 10(1) of the FOIA.”

August 23 2012:

We contact the ICO senior case officer to inform them that we have had no response from OFMDFM. We ask what happens next.

August 24 2012:

The ICO senior case officer replies to say she received messages from OFMDFM stating that they were preparing a response. She says she also asked them to send her a copy when it issues. She says she will contact them for an update.

Later the same day, we finally receive a response from OFMDFM which includes some of the requested information.

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