Information relating to Ian Paisley Jnr's constituency office; correspondence, reviews by IPSA and discussions between IPSA and Northern Ireland Assembly

We wrote to you on 14 September 2015 to let you know that we required further time to consider competing public interest arguments for and against the disclosure of the information requested, in accordance with section 10(3) of the FOIA.

I will address your requests in turn.

• Any reports, reviews or assessments compiled or commissioned by IPSA in relation to the Ballymena office.

• Any correspondence between IPSA and the Independent Financial Review Panel in N Ireland about a) the Ballymena office and its rental costs; and b) governance arrangements for offices shared between MPs and members of the Northern Ireland Assembly.

IPSA has not commissioned or compiled any reports, reviews or assessments exclusively in relation to Mr Paisley’s constituency office, nor has any correspondence been exchanged with the Independent Financial Review Panel regarding the office or governance arrangements. As such, we do not hold any of this information.

• Any correspondence between IPSA and the Northern Ireland Assembly about a) the Ballymena office and its rental costs; and b) governance arrangements for offices shared between MPs and members of the Northern Ireland Assembly.

• Records of any meetings or phone conversations between IPSA and the Northern Ireland Assembly or the Independent Financial Review Panel, in relation to: a) the Ballymena MP office; and b) governance arrangements for offices shared between MPs and members of the Northern Ireland Assembly.

• Emails sent and received by and within IPSA in relation to media enquiries about the MP constituency office at 9-11 Church Street, Ballymena.

• Any correspondence between IPSA and the North Antrim MP about the office and its rental costs.

• Records of any meetings or phone conversations between IPSA and the North Antrim MP, in relation to: a) the Ballymena office; and b) governance arrangements for offices shared between MPs and members of the Northern Ireland Assembly.

IPSA does hold information falling within the remit of these requests.

Section 36 of the FOIA provides that information is exempt from disclosure under the terms of the FOIA where disclosure would, or would be likely to, prejudice the effective conduct of public affairs. In this instance, we have considered the engagement of the exemption at subsection (2)(b)(ii) which relates to instances where disclosure would or would be likely to inhibit the free and frank exchange of views for the purposes of deliberation. As you may be aware, the exemption at section 36 of the FOIA can only be engaged if, in the reasonable opinion of a ‘qualified person’, disclosure would result in any of the effect set out in section 36(2)(b)(ii) of the Act. IPSA’s qualified person[1], Sir Neil Butterfield, a member of IPSA’s Board, considered whether the information requested would, or would be likely to prejudice the effective conduct of public affairs. Having come to a reasonable opinion as to whether or not disclosure would or would be likely to prejudice the effective conduct of public affairs, Sir Neil undertook a public interest test to assess whether the public interest in withholding the information outweighs the public interest in disclosure in relation to the s.36 exemption. As noted above, the public interest balancing exercise was conducted in relation to the engagement of the exemption at s.36(2)(b)(ii) of the Act. In doing so, our qualified person considered the arguments for and against applying s.36. Sir Neil considered that the presumption of Freedom of Information legislation is that information should be released on request. It was also considered whether releasing such correspondence could impair the ability of IPSA to conduct its public role effectively and could thus cause a detrimental impact on the conduct of public affairs. In balancing the arguments, Sir Neil has commented as follows:

For the purpose of my decision I hereafter refer to the documents set out in the request as “the requested information”.

As the Qualified Person designated by the Lord Chancellor under Section 36(5) of the Freedom of Information Act my duty is to assess whether the public interest in withholding the requested information outweighs the public interest in disclosure in relation to the exemptions specified in Section 36 of the Act. In particular I must assess whether in my reasonable opinion the disclosure of the requested information would, or would be likely to, inhibit the free and frank provision of advice, or the free and frank exchange of views for the purposes of deliberation, or would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs. Different considerations apply to the different classes of the requested information.

In reaching my conclusions I have considered all the documents to which the request relates and the arguments for and against applying Section 36. As a matter of record there is no correspondence, emails or records of any meetings or phone conversations between IPSA and the Independent Financial Review Panel in respect of the matters to which the requested information relates. Further, IPSA has not commissioned or compiled any reports, reviews or assessments in relation to the Ballymena office.

In determining whether in my reasonable opinion the public interest in withholding the requested information outweighs the public interest in disclosure I have given full weight to the presumption in the FOIA that information should be released on request. I further recognize that such part of the material to which Section 40 (personal information) might apply can be redacted. In addition I acknowledge that it is in the public interest that a publicly funded independent organisation should be transparent in the way it interacts with MPs and, where relevant, with other public bodies such as the devolved Assemblies. I have also taken into consideration that disclosure of some of the requested information could assist the public in understanding how IPSA operates when determining whether to allow or refuse claims for business costs claimed by MPs and the way in which IPSA regulates the business costs and expenses of MPs.

There are however strong countervailing factors which I must take into account when considering the public interest.

The correspondence and other documents between IPSA and the Northern Ireland Assembly about the Ballymena office, its rental costs and governance arrangements for offices shared between MPs and members of the Northern Ireland Assembly relates to ongoing work on these matters. That ongoing work would be significantly prejudiced should discussions, exchange of views and suggested advice in respect of those matters be disclosed. Such disclosure would inevitably prejudice the free and frank provision of advice and the willingness of those involved in the ongoing work to express themselves openly and honestly.

Emails within IPSA in relation to media enquiries about the Ballymena office are exchanged between members of staff at IPSA to seek information, establish facts and offer advice on the appropriate way to respond to media enquiries. Such exchanges are an important way of ensuring that IPSA’s Communications Team are able to communicate accurate information to external bodies, and that sensitive and confidential information is not released. Disclosure of such emails would undoubtedly have a “chilling effect”, discouraging members of the Communications Team from sending such emails in the future. Such a consequence would severely hamper the ability of the team effectively to conduct their affairs.

Corresponding with Mr. Paisley and the Northern Ireland Assembly in respect of the matters the subject of the requested information allows a record to be kept of decisions made, and why they were made. Disclosing this correspondence would discourage the future use of correspondence for such a purpose, the so-called “chilling effect” which would in consequence damage record-keeping and prejudice the effective conduct of IPSA’s affairs.

Correspondence between IPSA and Mr. Paisley relates to his expenditure in respect of the Ballymena office in response to matters raised by IPSA. The purpose of the correspondence was to enable IPSA clearly to understand the nature and context of Mr. Paisley’s expenditure claims and thus be in a position to determine whether the claims should be allowed or refused. The outcome of IPSA’s determinations – that is to say the nature of the claims, the amount of each head of claim and whether the claim was allowed or refused – is already in the public domain. Disclosure of the correspondence with Mr. Paisley in respect of these claims would be likely to discourage both IPSA and Mr. Paisley from using correspondence to resolve future claims for business costs and expenses. Such a consequence would adversely affect IPSA’s effective conduct of its duty as a regulator and thus be prejudicial to the effective conduct of public affairs.

I have also considered whether MPs generally would reasonably expect to see their correspondence with IPSA relating to their claims for business costs and expenses released to the public notwithstanding that some communications between MPs and IPSA may from time to time be deemed eligible for release. I have concluded that they would not expect that letters they wrote in respect of their claims would be put into the public domain, and further that such a belief is wholly reasonable.

In my opinion the release of the requested information into the public domain could lead to a significant breakdown of trust between IPSA and Mr. Paisley and in consequence with other MPs. Such a breakdown in trust, if it occurred, is likely in my view to have a considerable impact on the way in which MPs and IPSA relate and interact with each other generally. Trust between MPs and IPSA is of fundamental importance. If MPs felt that they were unable to communicate with IPSA without their correspondence being put into the public domain that would unquestionably be detrimental to the way in which they dealt with IPSA. It would significantly reduce the confidence they would otherwise have in dealing openly and frankly with IPSA and would accordingly be prejudicial to the effective conduct of public affairs.

Some of the factors to which I have referred as supporting the engagement of the exemption provided in Section 36 of the FOI are more powerful than others. However, the cumulative weight of the matters set out is such that it is my reasonable opinion that disclosure of the requested information would, or would be likely to, inhibit the free and frank provision of advice, the free and frank exchange of views for the purposes of deliberation, and would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs.

As such, Sir Neil has engaged the exemption at section 36(2)(b)(ii) and (c) to withhold the information requested (and held by IPSA) from disclosure.

[1] As designated by the Lord Chancellor under s.36(5)(o)(iii) of the FOIA.