The Northern Ireland Office has been ordered to release confidential papers on the disbandment of the Home Battalions of the RIR in 2007 — or face contempt of court proceedings.
Following a three-year investigation, the Information Commissioner has given the NIO 35 days to comply with his decision to disclose sensitive information withheld after a Freedom of Information (FoI) request first made on August 17, 2005 — shortly after news of the disbandment was made public.
The NIO refused the request citing six sections of the Act and didn’t release any papers arguing that the public interest favoured withholding the documents.
It argued that the disclosure of some of the information relating to the formulation of Government policy could prejudice the “policy-making process”.
The NIO’s position was challenged and an internal review was conducted before the matter was referred to the Information Commissioner for examination in April 2006.
Since September 2006 the Commissioner has been in discussions with the NIO and recommended the release of some of the documentation held about the RIR disbandment and sensitive information was inspected in Government offices.
But it wasn’t until June 2007 that the withheld information was finally inspected resulting in a recommendation from the Commissioner that much of the information could be disclosed.
The NIO did release two documents and following a further inspection of the RIR material the NIO did release some further documents, but not all the information the Commissioner had identified should be released.
In January 2008 the Commissioner wrote to the NIO suggesting that the balance of the public interest lay in favour of disclosing a substantial amount of the information still withheld and some further documents were released.
In a hard hitting ‘Decision Notice’ judgment dated September 14, the Information Commissioner’s Assistant Commissioner Steve Wood criticised the NIO over its failure to observe proper procedures in dealing with the FoI request, including delays and failure to explain which exemptions were being considered and the use of wrong exemptions.
The Commissioner revealed that if the withheld information was disclosed as a matter of course it could potentially affect the candour of submissions “made on related policy issues in Northern Ireland (such as policing and the devolution of justice)”.
The Commissioner concluded: “Having had sight of the withheld information and considered the circumstances of the case, particularly the timing, the Commissioner is not satisfied that its disclosure would have the significant and severe impact ascribed to it by the NIO”.
The NIO advised the Commissioner “that the disbandment of the RIR was seen as highly controversial, which made communications between ministers particularly sensitive”.
In balancing the arguments, the Commissioner acknowledged that there is a compelling public interest in openness and transparency surrounding the decision-making process and is of the view that “given the political sensitivities, there is an increased public interest in understanding the public thinking and policy formulation processes in this instance”.
In a final warning to the NIO the Commissioner writes: “Failure to comply with the steps described above may result in the Commissioner making written certification of this fact to the High Court (or the Court of Session in Scotland) pursuant to section 54 of the Act and may be dealt with as a contempt of court.”