FOI 27-23: Unauthorised flags flown from Parliament Buildings

Information Standards Freedom of Information Response

Our Ref: FOI 27-23

16 November 2023

Freedom of Information Act 2000 (“FOIA”)

I am writing to confirm that the Northern Ireland Assembly Commission (Assembly Commission) has processed your request dated 21 September 2023 in line with the Freedom of Information Act 2000. In your request, you asked:

“Under the Freedom of Information Act, I would like to request details regarding an incident in 2015 when unauthorised flags were flown from Parliament Buildings.

More details on this can be found here: https://www.bbc.co.uk/news/uk-northern-ireland-33002354

Please disclose the following:

- A copy of any reports created or received by the Assembly Commission in relation to this matter, including any reports from contractors working at Parliament Buildings.”

The Assembly Commission holds information in relation to your request as outlined in Appendix A.

S.40 Personal information

Some of the information relevant to your request relates to personal data as defined by the Data Protection Act 2018 (DPA 2018) and the United Kingdom General Data Protection Regulation (UK GDPR), namely, information relating to one or more identifiable living individuals.

The Assembly Commission considers this information to be exempt from disclosure under section 40(2) of the FOIA 2000 (Personal Information), whereby personal data is exempt from disclosure if it constitutes personal data of which the applicant is not the data subject and, as per section 40(3A) (a) of the FOIA 2000, disclosure of the information would contravene any of the data protection principles.In the present case disclosure of this personal data would contravene the first data protection principle (lawfulness, fairness and transparency).

S38 Health and Safety

Some of the information relevant to your request has been redacted under section 38(1) (b) of the FOIA 2000 (Health and Safety). The exemption provides that information is exempt from disclosure as follows:

(1) Information is exempt information if its disclosure under this Act would, or would be likely to –

               (a) endanger the physical or mental health of any individual, or

               (b) endanger the safety of any individual

Section 38(1)(b) is a qualified exemption within the meaning of the FOIA 2000 and is subject to consideration of the Public Interest Test. 

Factors which would favour disclosure under this test are the public interest in openness and transparency regarding assurances to the public that adequate arrangements are in place to ensure the security of Members, staff and the public

In this case, it has been determined that disclosing specific security-related discussions would be likely to prejudice the safety of the individual as it would conflict with the effective operation of security management within Parliament Buildings in addition to the ongoing safety of the individual’s day to day routine.    

It is considered that the practical effect of disclosure of the information could be to reduce the effectiveness of the security provided in Parliament Buildings which would be likely to endanger the safety of users of the building. The public interest in maintaining the exemption, in order to ensure the safety of building users, in this instance, outweighs the public interest in disclosure of this information.

It is therefore decided that section 38 (1)(b) is engaged, as security-related information could be put to improper use, placing the individual at risk. 

It is considered that in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosure.

S42 Legal Professional Privilege

Some of the information relevant to your request has been redacted under section s42 of the FOIA (Legal Professional Privilege). The exemption provides that information is exempt from disclosure as follows:

(1)  Information in respect of which a claim to legal professional privilege or, in Scotland, to confidentiality of communications could be maintained in legal proceedings is exempt information.

(2)  The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(1)(a) would involve the disclosure of any information (whether or not already recorded) in respect of which such a claim could be maintained in legal proceedings.

As section 42(1) is a ‘qualified ‘exemption the Assembly Commission has considered the factors for and against disclosure and concluded that the public interest lies in not disclosing the information at this time.

The rational to disclosing the information rests around transparency in decision making. However clear, compelling and specific justification for disclosure would have to be demonstrated in order to outweigh the obvious interest in protecting such communications as confidential under legal professional privilege.

You have the right to request a formal review by the Assembly Commission 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 may appeal to the Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF which will undertake an independent review.

The Assembly Commission may publish details of your FOI request and its 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.

Yours sincerely

Information Standards