Breaches of the code of conduct by Assembly Members

Information Standards Freedom of Information Response

Our Ref: FOI 13-21

06 May 2021

Freedom of Information Act 2000 (“FOIA”)

I am writing in response to your recent Freedom of Information request directed to the Northern Ireland Assembly Committee on Standards and Privileges (“the Committee”). The Northern Ireland Assembly Commission (“Assembly Commission”) supports the work of the Northern Ireland Assembly (“the Assembly”) and its committees. The Assembly is a public body for the purposes of FOIA and this response has been prepared by the Assembly Commission on behalf of the Assembly.

In your request you asked for the following information:

“A) How many complaints have been made over the last four years against Assembly Members for alleged breach of the members Code of Conduct

B) Please provide the names of all members that have had complaints made against them for alleged breaches of the members Code of Conduct, and how many complaints per member have been made for the last four-year period.

C) Please provide per member the outcome of each complaint made against each member for alleged breaches of the members Code of Conduct for the last four-year period.”

Please see Appendix A for details of the response to your request.

You have the right to request a formal review by this decision and if you wish to do so, please write to me at the above address.

If after such an internal review you are still unhappy with the response, you have the right to appeal to the Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF who will undertake an independent review.

The Assembly Commission may publish details of your FOI request and our official response within the organisational disclosure log. The request will be completely anonymised and you will not be identified in any way. This is to meet the requirements as laid out by in the agreed publication scheme with the Information Commissioners’ Office (ICO).

If you have any queries about this letter, please contact me. Please remember to quote the reference number above.

Yours sincerely

INFORMATION STANDARDS & DATA PROTECTION OFFICER

APPENDIX A

Some of the information you have requested is not held for the purposes of the Freedom of Information Act 2000 (“FOIA”) by the Committee. For example, the Committee would not be aware of the outcome of any investigation by the Commissioner for Standards (“Commissioner”) until the report on that investigation is forwarded to the Committee.

Some of the information that you have requested is held by the Committee for the purposes of FOIA as set out below. Please note that the Commissioner provides the Committee with a copy of each originating document from complainants but such documents may disclose a number of different complaints of alleged breaches of the Code of Conduct and determining the number of complaints is a matter for the Commissioner.

A) How many complaints have been made over the last four years against Assembly Members for alleged breach of the members Code of Conduct

The Committee holds some information relevant to this request on complaints determined to be admissible by the Commissioner. However, this data is exempt information under the terms of section 22 of the FOIA.

Section 22 relates to information intended for future publication and states:

(1) Information is exempt information if—

(a)the information is held by the public authority with a view to its publication, by the authority or any other person, at some future date (whether determined or not),

(b)the information was already held with a view to such publication at the time when the request for information was made, and

(c)it is reasonable in all the circumstances that the information should be withheld from disclosure until the date referred to in paragraph (a).

The Commissioner is required, as soon as practicable after the end of each financial year, to lay before the Assembly an annual report on his or her activities as per paragraph 7 of Schedule 4 to the Assembly Members (Independent Financial Review and Standards) Act (Northern Ireland) 2011 (“the 2011 Act”).

Section 27(3) of the 2011 Act requires the Assembly to publish reports by the Commissioner for Standards (“the Commissioner”). Examination of the reports provided by the previous Commissioner indicate that information relating to the number of complaints received is routinely included within such publications. Information on numbers of complaints received since September 2017 will be published in the next report of the Commissioner.

Section 22 of the FOIA is a qualified exemption. Accordingly, the Assembly Commission has considered the arguments in favour of disclosing the information and those in favour of maintaining the exemption.

Public interest considerations favouring disclosure:

As the devolved legislature for Northern Ireland, there is a public interest in transparency being demonstrated by the Assembly releasing information on the numbers of alleged breaches of the Code of Conduct applicable to Members.
Disclosure under FOIA would be consistent with the Assembly’s commitment to proactively publish data on matters of public interest.

Public interest considerations favouring maintaining the exemption:

Both the Assembly and the Commissioner are subject to a legislative requirement to publish reports on the activities of the Commissioner. As established through the 2011 Act and the reports of the previous Commissioner, the information sought in this request is routinely included.
Publishing figures held by the Committee ahead of any official report from the Commissioner may undermine confidence in the accuracy of the report when published, since it is for the Commissioner to determine the number of complaints disclosed in each case.

It is in the public interest that the Commissioner can carry out his/her duties in an effective manner and in a timeframe he or she determines, that public confidence in the office is maintained, and that the office is demonstrably independent from the Assembly. The Assembly Commission has concluded that maintaining the exemption is in the public interest.

and,

C) Please provide per member the outcome of each complaint made against each member for alleged breaches of the members Code of Conduct for the last four-year period.”

With reference to points B & C of your request, in both cases the information sought is classed as personal data for the purposes of the Data Protection Act 2018 (“DPA”) and therefore exempt from publication under the FOIA.

Section 40(2) of FOIA provides:

“40 Personal information.

(1) Any information to which a request for information relates is exempt information if it constitutes personal data of which the applicant is the data subject.

(2) Any information to which a request for information relates is also exempt information if—

(a) it constitutes personal data which does not fall within subsection (1), and

(b) the first, second or third] condition below is satisfied.

(3A) The first condition is that the disclosure of the information to a member of the public otherwise than under this Act—

(a) would contravene any of the data protection principles, or …”

As per the DPA and UK General Data Protection Regulation (UKGDPR) the information you have requested in parts B & C above is classed as personal data. This means that individuals can be identified directly from the information in question.

Article 5 of the GDPR requires that all personal data must be “processed lawfully, fairly and in a transparent manner in relation to the data subject”. Article 6 sets out the legal basis for the gathering, processing, storing and sharing of personal data and stipulates that for processing to be lawful one element of the Article must be identified and fulfilled by the data controller. In this instance the personal data of Members is processed under “legitimate interests”.

Publication of this information ahead of any future report by the Commissioner into these matters would not be in the public interest as figures and outcomes currently held by the Committee will not accurately reflect the full spectrum of ongoing investigations held by the Commissioner and potentially undermine the process of investigating ongoing complaints. As there is a statutory requirement to publish the Commissioner’s reports on the investigations into breaches of the Code of Conduct, there is no pressing social need to interfere with the data subject rights and interests of the individuals by publishing the information under FOIA. The Commissioner’s oversight of the complaints process is both independent and has transparency built in through the legislative framework. Therefore, the Assembly Commission has concluded that publication of this personal data is not necessary for the purposes of greater transparency and does not outweigh the rights and interests of the data subjects.

This decision is taken in light of the ICO Guidance on the balancing exercise carried out to determine necessity to publish personal data through FOIA in this manner. According to the ICO the relevant factors to consider include:

what potential harm or distress disclosure may cause;
whether the information is already in the public domain;
whether the information is already known to some individuals;
whether the individual expressed concern or objected to the disclosure; and
what the reasonable expectations of the individual are.

In relation to the reasonable expectations of Assembly Members, they will be aware that the Commissioner’s report on any complaint about them will be published but that the general disclosure of information about complaints by the Commissioner and those assisting him/her is otherwise prohibited by section 33 of the 2011 Act. Please see this section below:

33—(1) Subject to subsection (2), the Commissioner, or any person who has (at any time and in any capacity) assisted the Commissioner in the discharge of functions under this Act, shall not disclose any information contained in any complaint or referral, or any information which is furnished to or obtained by the Commissioner or such person in the course of, or for the purposes of, an investigation under this Part.

(2) Such information may be disclosed for the purpose of—

(a) enabling or assisting the Commissioner to discharge any function imposed or conferred on the Commissioner by virtue of any provision of—

(i) this Part;

(ii) any other statutory provision;

(iii) the standing orders of the Assembly; or

(iv) any direction or other requirement imposed by the Assembly; or

(b)the investigation or prosecution of any offence or suspected offence.