Home > Publications > Selected cases — Parliamentary > Selected Cases and Summaries of Completed Investigations - April to October 1998 > A.27/97
Second Report Session 1998-99
Volume 2 - ACCESS TO OFFICIAL INFORMATION
NORTHERN IRELAND OFFICE
Refusal to disclose a report by a Board of Visitors
Mr A, who is a prisoner in Northern Ireland, asked to see a copy of the prison Board of Visitors' annual report for 1996/97. The Northern Ireland Prison Service said the report was not available to the public. After Mr A had complained to the Ombudsman, the Permanent Secretary at the Northern Ireland Office said Board members had expressed concerns about publication of reports because of the security situation in Northern Ireland; publication would place additional pressures on them in what could already be a difficult role, and could affect their approach. Also, in exercising their powers board members had to satisfy themselves that they would not undermine the security and good order of the prison, prejudice its efficient operation or prevent the proper treatment of prisoners. Because of those considerations, and the wider security situation in Northern Ireland, reports were not made publicly available. The Ombudsman found that disclosure of much of the information contained in the report, in the circumstances which prevailed, might prejudice the security of the prison and the candidness of future reports; he found that it fell within the scope of Exemption 4(e) (Law enforcement and legal proceedings) and Exemption 7(b) (Effective management and operations of the public service) in Part II of the Code. He suggested to the Permanent Secretary, however, that some factual information contained in the report could be disclosed. The Permanent Secretary accepted the Ombudsman's recommendation.
6.1. Mr A, who is a prisoner in Northern Ireland, complained that the Northern Ireland Prison Service (NIPS) had refused to supply him with a copy of a report by the Board of Visitors (the Board) of the prison in which he is held.
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Background
6.2. Under section 10(1) of the Prison Act (Northern Ireland) 1953, as amended by article 2(1) of the Northern Ireland (Modification of Enactments - No 1) Order 1973, the Secretary of State appoints a board of visitors for each prison in Northern Ireland. Their general duties, under rule 124(1) of the Prison and Young Offenders Centre Rules (Northern Ireland) 1995 (the Prison Rules), are to satisfy themselves as to:
- the treatment of prisoners, including provision for their health care and other welfare while in prison;
- the facilities available to prisoners to allow them to make purposeful use of their time; and the cleanliness and adequacy of prison premises.
Rule 127 of the Prison Rules requires that:
'The Board shall, as soon as possible after 31st March in any year, report to the Secretary of State on all or any of their year's duties under [the Prison Rules] together with any advice or suggestions they may wish to make.'
6.3. On 26 August 1997, Mr A submitted a petition to the Secretary of State, requesting a copy of the Board's annual report for 1996-97 (the report). NIPS replied on 23 September. They told him that the Secretary of State had received the report and that it was not available to the public. Mr A was not satisfied with that reply and, through a Member of the House of Commons, sought the Ombudsman's intervention. Before agreeing to investigate the complaint, I asked whether Mr A had given NIPS the opportunity to review their decision. Mr A said that he had not done so because NIPS had told him, in a letter dated 17 November 1997, that they would not deal with any matter which had already been covered in a substantive letter from them. As it was not clear how that affected his information request, I decided that the best way to clarify the matter was to begin an investigation.
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NIPS's reasons for refusing access
6.4 When commenting on the complaint, the Permanent Secretary said the report was prepared by the Board as appointees of the Secretary of State. Under the Prison Rules, it was prepared specifically for the Secretary of State, and was not available to the public or to prisoners. Reports often included details of operational matters, and of changes or plans for prison regimes; they could also include the names or opinions of board members or prisoners. He said that board members had expressed concerns about publication of reports, because of the security situation in Northern Ireland: publication would place additional pressures on board members in what could already be a difficult role, and might affect their approach. The freedom fully to express their views to the Secretary of State would be affected, and the relationship between board members and prisoners might be compromised.
6.5. The Permanent Secretary went on to say that reports were based on information gleaned by board members in the course of their duties in prisons. Board members were required to treat as confidential any information to which they had access about security, prisoners' personal details or other board members. In exercising their powers, boards had to satisfy themselves that they would not undermine the security and good order of the prison, prejudice its efficient operation, or prevent the proper treatment of prisoners. Because of those considerations, and the wider security situation in Northern Ireland, reports were not made publicly available.
6.6. The Permanent Secretary also commented on the reason Mr A had given for not asking NIPS to review their initial refusal of his request. He said Mr A had a long history of vexatious correspondence with NIPS. Staff had had to reply to numerous requests for (often inappropriate) information. Mr A had been told that NIPS would continue to deal with his concerns, but that they could not devote a disproportionate amount of time to dealing with the following matters: those already dealt with either centrally or locally; unspecific, unsupported allegations relating to NIPS, its staff or the Secretary of State; and the specific issue of transfers of money. In conclusion, the Permanent Secretary said that Mr A's right, under the Prison Rules, to petition the Secretary of State about any matter relating to his imprisonment, remained open to him.
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6.7. In the light of the Permanent Secretary's comments I have considered whether any of the exemptions in Part II of the Code were relevant to the information Mr A requested. For convenience, I set them out here. Exemption 4 is headed 'Law enforcement and legal proceedings'; paragraph (e) reads:
'Information whose disclosure would harm public safety or public order, or would prejudice the security of any building or penal institution.'
Exemption 7 is headed 'Effective management and operations of the public service'; paragraph (b) reads:
'Information whose disclosure would harm the proper and efficient conduct of the operations of a department or other public body or authority, including NHS organisations, or of any regulatory body.'
Both Exemption 4(e) and Exemption 7(b) are subject to the harm test in the preamble to Part II of the Code:
'References to harm or prejudice include both actual harm or prejudice and risk or reasonable expectation of harm or prejudice. In such cases it should be considered whether any harm or prejudice arising from disclosure is outweighed by the public interest in making information available.'
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Investigation
6.8. The Ombudsman's staff compared NIPS's position on disclosing boards of visitors' reports with that of the Prison Service in England and Wales. They found that boards in England and Wales are encouraged to consider publishing their annual reports. (This follows a recommendation of the Report of the Committee of Inquiry into the United Kingdom Prison Services in 1979 that board members should see themselves as having 'a duty to increase their local community's knowledge and understanding of what goes on in their prison'.) Boards in Northern Ireland are not encouraged to consider publishing.
6.9. The Ombudsman's staff also found confirmation that board members in Northern Ireland had expressed concern about publication of their reports.
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Assessment
6.10. The Permanent Secretary referred to 'a long history of vexatious correspondence' from Mr A. As he did not suggest that NIPS had rejected the current request on that ground, I have not considered whether Exemption 9 in Part II of the Code (which concerns Voluminous or vexatious requests) might apply to it.
6.11. He also referred to board members' duty of confidentiality in relation to certain matters. That is not directly relevant to Mr A's request, because it was not from the Board or any of its members that he sought the information, but from NIPS. However, information which board members are required to treat as confidential may fall within one or more of the exemptions in Part II of the Code: it is from that perspective that I considered the question of disclosure.
6.12. I do not offer a view whether the special circumstances obtaining in Northern Ireland, to which the Permanent Secretary referred, justify the difference of policy there on publication of boards of visitors' reports. What I have done is to consider the Permanent Secretary's comments, which deal with boards of visitors' reports as a class, as they apply to the particular report requested. In doing so, I bore in mind the sensitivity of the political situation in Northern Ireland and its prisons.
6.13. I began by considering whether any information in the report might prejudice the security of the prison (Exemption 4(e)). I found that substantial parts of the report fell within the scope of Exemption 4(e); and concluded that the risk of harm if they were disclosed outweighed the public interest in making information available.
6.14. What of the remaining parts? The Permanent Secretary said that publication of reports might affect the approach of boards of visitors in making reports; and my investigation has confirmed that board members do have concerns about disclosure of their views and recommendations. It is obviously important, in the interests both of prisoners and of the public, that boards of visitors should feel able to express their views freely to the Secretary of State: it would be regrettable if disclosure of the report Mr A requested should result in future reports being less candid. I accept that, in the circumstances that currently exist in Northern Ireland (March 1998), there is a genuine risk that disclosure of the Board's views and recommendations might have that effect. I am satisfied that those aspects of the report fall within Exemption 7(b) and may be withheld under the harm test.
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6.15. That leaves a certain amount of factual information. Much, possibly all of it, will already be known to Mr A. Some of it is interspersed with the Board's comments and cannot be separated out. I decided that the parts that were self-contained could be disclosed; and suggested that, in the interests of openness, those parts should be made available to Mr A, though their interest for him may well be limited. The Chief Executive accepted my suggestion. I welcome NIPS's decision to supply that information.
6.16. As to the handling of Mr A's request, I drew NIPS's attention to some comments by the previous Ombudsman on the handling of requests under the Code. He said that it seemed to him good practice that, where departments refuse requests for information under the Code, they should identify in their responses the specific exemptions in Part II on which they rely (First Report - Session 1994-95 Selected Cases 1994 - Volume 4 Access to Official Information). NIPS did not do so in this case. I suggested that NIPS might wish to review their guidance to staff on how to deal with information requests, with a view to improving staff awareness of Code procedures. The Chief Executive replied that NIPS would take action to implement my recommendation.
6.17. Mr A understood NIPS's letter of 17 November 1997 (paragraph 6.3) to mean that they would not review a decision about a request from him under the Code. I did not understand the letter as necessarily meaning that, but I thought it would be helpful if NIPS explained to him that requests for information will be dealt with according to Code procedures. The Chief Executive agreed to my suggestion that that should be done.
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Conclusion
6.18. I found that while NIPS were entitled to withhold much of the report under Exemption 4(e) and Exemption 7(b), some factual information should have been disclosed. NIPS have accepted my recommendation that that should now be done. They have also assured me that they will take steps to improve staff awareness of the requirements of the Code; and have undertaken to explain to Mr A that any requests he might make for information would be dealt with according to Code procedures. I see that as a suitable outcome to a justified complaint.
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