Peter Robinson and Martin McGuinness’s department has argued that it would “undermine” the Assembly if it answered in public the questions which it has refused to answer through official Stormont channels.
The claim, which was made as the Office of the First Minister and Deputy First Minister (OFMDFM) attempted to refuse a Freedom of Information (FoI) request, will likely astonish some of the MLAs who have been unsuccessfully attempting to get responses to written Assembly Questions.
The questions are meant to be answered within 10 days but some lie unanswered for months or more than a year with no Assembly sanction.
However, in a development which could have significant implications for Stormont, the Information Commissioner, the FoI watchdog, has dismissed the argument.
That means that MLAs now have a legally-enforceable route – backed up by the possibility of High Court action – to force responses to questions which the Assembly has proved incapable of seeing answered.
In adjudicating on the complaint from an unknown individual, the commissioner also ruled that in responding to the request Mr Robinson and Mr McGuinness had taken a decision that no reasonable person in their position could have taken. It is understood that in nine years of the Freedom of Information Act this is the first time the commissioner has made that finding in Northern Ireland.
The ruling, in which the commissioner overturned the joint decision of the Sinn Fein and DUP ministers, was made at the end of March and placed on the ICO website, but is only now coming to light.
An individual had requested information which included details of pay to ministerial special advisers, its record in responding to FoI requests and the draft responses to MLAs’ unanswered written Assembly questions. He also asked: “What protection does OFMDFM give to staff who hold information on crimes that would send an Executive minister or advisers to prison?”
In attempting to refuse the request, OFMDFM argued that the information related to unanswered written Assembly questions to the department.
As such, it argued that to release the information to a member of the public before it was given to the Assembly “would seriously undermine Assembly business” .
The department told the commissioner that “ministerial agreement [between Mr Robinson and Mr McGuinness] had not been reached on the Assembly Questions in question at the time of the request”.
It added that “[the complainant] was effectively challenging the Assembly’s privileged access to information process, by attempting to elicit a FoI response before an Assembly question response was issued”.
The decision notice also revealed: “OFMDFM was of the strong view that it would be disrespectful to ministers if officials attempted to answer questions submitted as formal AQs before MLAs had received a reply”.
But the commissioner ruled that “the fact that an AQ has been tabled does not in itself prevent any individual from making a request for information under the FOIA”.
Department with an appalling record on transparency
OFMDFM has long struggled with releasing even basic information to the Assembly, journalists or the public.
MLAs complain about long delays to answering their questions, which by Assembly rules should be answered within 10 days.
In March, the department went so far as to argue – in an attempt to refuse an FoI request by this newspaper – that it should not have to release information if it was likely to lead to Peter Robinson or Martin McGuinness losing votes.
Delays – which in some cases extended to more than 300 days past the 20-day legal limit – to answering FoI requests led in late 2012 to the department being one of just four public bodies across the UK to be monitored by the commissioner.
In one instance it only answered a request the night before the applicant was to appear in the High Court to ask for the law to be enforced.