Tuesday, 29 January 2019

RHI Inquiry - The Information Commissioner Writes

Letter to Head of Northern Ireland Civil Service

19 October 2018

Dear David,

I refer to our recent meeting regarding information governance in the NI Civil Service (NICS) and, in particular, the need to record and preserve decision-making appropriately in the interests of accountability and transparency.

I found our discussions very helpful and I was also encouraged by the views expressed at the Permanent Secretaries' Stocktake the following day. I now have greater confidence that the leaders of the Civil Service in Northern Ireland are committed to improving practice. Taking the opportunity now to review and revise procedures during the suspension of the NI Executive with an aim to implement them in advance of its re-establishment will, I anticipate, result in much more effective governance in future.

We agreed in our meeting that I would provide you with some recommendations relating to principles I would urge to be adopted within those revised operating procedures.  In part, these principles reflect the new technologies which are becoming integral to day-to-day working practices in government but which, without due diligence, may impact negatively upon transparency.  In summary, the procedures should:

•    Command buy-in from all staff, including senior management;
•    Be supported by regular information governance training for all staff;
•    Record all key decisions and actions, and the rationale behind them;
•    Ensure integrity in the use of new communication technologies; and
•    Manage all information effectively and appropriately according to need.

More detail underlying these principles is contained in the Annex to this letter.

Effective record-keeping is essential for transparency of government and it also assists organisations demonstrate compliance with all forms of statutory requirements.

As you will know, my own remit is in relation to the upholding of people's information rights as stated within data protection and freedom of information regimes. It is now a statutory requirement for organisations to properly record their processing of personal information and the decisions lying behind that processing. The same duties are not stated explicitly within the freedom of information legislation but I am nevertheless strongly advocating that public authorities adopt a "duty to document" as a matter of good practice.

I am also advocating this to the UK Government as a future amendment to the Freedom of Information Act 2000 or in other appropriate legislation. Adopting these principles - which we also will be promoting to other administrations - as part of your revised procedures, would put you in a strong position should this become a legal requirement in the future.

I also welcome your commitment to review the Northern Ireland Civil Service Code to ensure it reflects modern responsibilities in relation to transparency and open government. In doing so, I do hope that you will give these principles your due consideration.

As agreed at our meeting, my team in Northern Ireland, headed by Ken Macdonald, will be happy to work with your own staff in developing the new approach to be adopted by the NICS.

With best wishes,

[Signature]

Elizabeth Denham
Information Commissioner

ANNEX

•   Command buy-in from all staff, including senior management

In order to achieve all the key elements of good practice, the NICS must have in place organisational arrangements that support effective information governance. This includes leadership of the Permanent Secretaries and their Senior Management teams to ensure information governance is viewed as a core corporate function, as well as a statutory obligation, with clearly defined roles and responsibilities for all staff. By endorsing these arrangements, a culture of accountability will be promoted.

This may be achieved through a top level information and knowledge management strategy together with policies and procedures that are supported throughout all levels of the organisation. It is, of course, also essential to ensure departments are properly resourced to implement the new practices.

Departments may already have introduced new policies and procedures in relation to aspects of information governance as part of their preparations for the introduction of the new data protection regime. It should be possible to adapt many of those policies and procedures to apply to other types of information as part of a wider move to strengthening information rights compliance.

•    Be supported by regular information governance training for all staff

The policies and procedures adopted by NICS to achieve good information governance will only be fully effective if staff understand the importance of proper record keeping. This can be achieved through the provision of regular - and compulsory - information governance training.

On commencement of their employment, all NICS staff should undertake mandatory information governance training regardless of their role or function. Compulsory refresher training should also be provided at appropriate intervals. Training packages should be regularly reviewed and updated to reflect best practice (including ICO guidance) and to ensure that new and emerging techniques and technologies are properly considered.

At a minimum, all information governance training should contain key modules covering:

•    Roles and responsibilities
•    Recording information, including documenting key decisions and actions
•    Status of records
•    Use of technologies
•    Statutory obligations
•    Responding to information requests
•    Information sharing
•    Retention and disposal schedules
•    Security of records and information
•    Breach reporting

Temporary or agency staff, contractors and consultants should also receive clearly defined procedures in information governance. Roles and lines of responsibility should be set out clearly. This should ensure that all staff and workers who create records in the course of NICS business are adhering to these procedures.

•    Record all key decisions and actions, and the rationale behind them

Documenting decision-making is a good governance measure. It leads to accountability for the decision, promotes knowledge transfer and helps to ensure legal rights and obligations are met. Individuals expect accountability from public bodies in their actions as well as their information rights practices. An accurate record of actions is essential to this process. It will provide the narrative behind decisions that will affect the lives of the ordinary citizen, explaining how the decision was reached and subsequently whether to proceed or not proceed with a proposal.

The Information Commissioner expects public authorities to implement a "duty to document" all decisions made by them as a matter of standard practice. This would reflect to some degree the new accountability principle of the GDPR which requires data controllers to be able to demonstrate compliance with their accountability obligations. Again, the procedures adopted under the accountability principle may be easily adapted for other forms of record keeping. However, and crucially, a public body must be able to demonstrate the basis of any decisions taken by it.

Access to information rights depend on public authorities documenting their key activities and decisions. Unrecorded decision making - either orally or through the use of new messaging technologies - will undermine public accountability and the public's trust. A duty to document will address this by establishing a positive duty for public servants to create a full, accurate and complete record of their important business activities including, for example, decisions made regarding resource management, budgeting and policy. By creating those records showing the 'what' and 'why' of public decision making, accountability, transparency, good governance and public trust will all be enhanced.

A duty to document should not be onerous but instead be proportionate to the significance of the decision taken. Its focus is not on the creation of more records, but rather on the efficient and effective recording of the right records reflecting the business needs of public authorities and community expectations. It must be accompanied by strong information governance practices and standards in order to be effective.

•    Ensure integrity in the use of new communication technologies

Retention and accessibility of records can be complicated by the introduction and adoption of new communication technologies which may impact upon the volume and variability of records. New approaches to the transmission of information should be encouraged where it is appropriate to do so. However, risk assessments focussing upon information governance issues should be undertaken before adoption of the technology takes place.

It is understood that there may no longer be as clear a distinction between devices used for work purposes and those for personal use as there have been previously. The use of instant messaging services and social media applications as well as private email accounts often significantly blur the line between personal and business communications. This challenges the ability of public authorities to document and preserve decisions and may erode a proper record of decision making. Accordingly policies and procedures adopted by NICS must incorporated guidance on the use of personal devices for business purposes. Those who use personal devices to communicate about work matters - including government officials, special advisors and Ministers - must be made aware that such electronic conversations will be subject to the Freedom of Information Act. If such records are not retained by the relevant departments, there becomes a greater reliance on "oral" government to the detriment of transparency, accountability and good governance.

New technology does not change the statutory information rights obligations of public authorities subject to the Freedom of Information Act. As such, those obligations also extend to ensuring that these novel communication technologies are sympathetically integrated into the work of government departments in a way that will not abuse the proper duty to maintain records, hamper their information rights obligations as public authorities or discredit their information rights handling with the general public.

•    Manage all documents effectively and appropriately according to need

NICS departments should review and manage their records effectively throughout the entire life cycle from creation to transfer for preservation or disposal. Guidance for public authorities on good records management is provided by the Lord Chancellor's Section 46 Code of Practice.

The Code applies to "Information created, received and maintained as evidence and information by an organisation or person, in pursuance of legal obligations or in the transaction of business" irrespective of how it has been stored. This includes both paper files and digital records and also business and information systems (eg, case management systems and financial records). All government departments need to be certain of the scope and nature of the documents and information that must be kept to meet their business, legal, regulatory and accountability requirements. Staff should be advised of these during their information governance training.

As part of the preparations for the implementation of GDPR, the ICO advised all organisations to undertake an information audit across all areas of their business. Having completed such audits, NICS departments should already know what records of personal information they hold, the legal basis for holding the information, the purpose it is held for and the relevant retention period. A similar audit should be undertaken for other categories of recorded information. This exercise may be informed to a large extent by the earlier work already undertaken.

Public authorities subject to the Public Records Act (Northern Ireland) 1923 should also have arrangements in place to ensure the timely and effective review and transfer of public records where applicable. Disposal of records should be undertaken only in accordance with clearly defined policies. In this regard, it is important for staff to be aware of the distinction between a transitory and non-transitory record; this often poses a difficulty for staff. Crucial to this is understanding the content and context of a record, than just its form.

END

The public might well have expected all of this to be well established current practice. Indeed, the Office of the Information Commissioner has provided Model Publication Schemes** for numerous types of public governance, including advice on making available agendas, minutes and officers' reports so that those who are interested can discover how decisions are reached.

Ironically, this letter has been provided in PDF image format which can't be word-searched - yet word-search is an essential ingredient of transparency - so I've gone to the trouble of making it more accessible!

** The Northern Ireland Audit Office subsequently provided reports which were cut-and-pasteable, word-searchable and user-friendly.

Added

Email to RHI solicitor [18 September 2018] "I've listened to some of the RHI inquiry sessions and word searched some of the transcriptions. However, the Inquiry website should be searchable but isn't. Can this weakness be remedied? My request is based on the Information Commissioner Office's Model Publication Scheme's direction that information should be 'easily identified and accessed by members of the public'."

Email from RHI secretary [18 October 2018] "Your email below was passed to me, as the design and maintenance of the website is an administrative matter.  I apologise for the delay in getting back to you, but I wanted to investigate whether it would be possible to provide the type of search facility you envisage.  There are some difficulties because of the varied formats in which documents have been provided to us, but we have now been assured that a search facility can be installed that will cover most, but not all, of the information we hold.  I have therefore asked our IT team to take this forward.  It will have to be designed, applied and tested, but we hope to have it available to the public in the next couple of weeks. I hope this will be of assistance to you."

Email from RHI secretary [23 November 2018] "Thank you for your email. Our IT Team (which sits outside the Inquiry) has produced a search facility that was found to require further refinement when tested.  They have been in contact about it again this week and I will let you know as soon as we are able to offer it on our website."

Email from RHI admin [19 December 2018] "I have been advised that the search facility for the Inquiry website is still undergoing testing but should be available for use in the New Year. I apologise for the delay to date."

It's now almost the end of January and the promised facility has yet to appear.

Added

Email from a senior ICO case officer: [18 October 2018]: "There is nothing in the requirement that the information in a Model Publication Scheme should be easily accessible and identifiable that would require a website to be word searchable. As such we would not be able to intervene in asking the RHI Inquiry to provide that functionality."

This ICO assertion is at odds with regular references to 'easily identified and accessed by members of the public' in publication schemes!!!

Saturday, 26 January 2019

Sarah Ann Taggart of The Poole, Ballyoglagh - Born 1864

Sarah Ann Taggart was the eldest child of James Taggart and Margaret Martin; she was born on the 2nd of April, 1864, in a clachan known as The Poole in the townland of Ballyoglagh and parish of Billy.

Her siblings were Nancy/Agnes, Elizabeth, Eliza Jane, Martha, twins James and John, Daniel and Margaret Ellen and half-siblings Mary Ann and Bethia.

I've found a baptism record for Elizabeth but not a registration. The presence of Eliza Jane would suggest that Elizabeth might have died soon after birth.

Eliza Jane's 1920 death record names the surviving siblings and she's named Lizzie on her 1893 marriage record; there's no mention of an Elizabeth. The newspaper obituary notes that Sarah is living in Ireland.

I think I've found Sarah Ann but I can't be certain. A Sarah Ann Devenney died at Railway Road, Coleraine, on the 12th of February, 1927, aged 62 years. This indicates 1864 or 1865 as a probable year of birth. She had a son called James Marshall Devenney, born in 1896, and Eliza Jane's husband was called James Marshall.

Sarah Ann Devenney's bridesmaid in 1888 was called Agnes Taggart and this fits with Nancy/Agnes above and her father was called James Taggart. She was living in Coleraine at the time of her marriage but the record doesn't show place of birth.

The 1901 census gives County Antrim as her county of birth and there was only one Sarah Ann Taggart in County Antrim or County Londonderry with a father called James who was born in the 1864-1868 time frame.

Thomas and Sarah Ann Devenney had the following children in Coleraine [Railway Road, Bankhead Terrace and James Street]: David, Thomas, Margaret*, William*, William, James Marshall, Andrew Reid*, Andrew Reid, John* and Ellen [*died as infants].

If anyone can add a piece to this family jig-saw please email NALIL blog.

Sunday, 20 January 2019

John Nevin - United Irishman Captain in 1798

John Nevin formerly lived in the townland of Kilmoyle, four miles north of Ballymoney, on the road to Portrush. At the time of the 1798 rebellion he was a captain in the United Irishmen. He went into hiding following the collapse of the rebellion, was supposedly smuggled through Coleraine in a barrel and fled to America where he died in 1806. Some of his friends were tied to cartwheels and flogged and a few were hanged. Many of their properties were burned down. His brother James, the recipient of this letter, had returned from America and no charge could be made against him seeing he was abroad at the time.

Knoxville
Tennessee State

10 April 1804

Dear Friend

Happy in an opportunity of writing and now embrace this. Your last favour I recd in less than two weeks from this date. I have also seen a Mr Stewart from the Garden a few days ago on his way to Natchez, who left Ireland in November last and informs me that troublesome times are not likely to be over yet. Oh! that I could have you all in this country with the value of your property. Here I enjoy equal rights and privileges with the Governor and I am an equal companion of our first-rank, whilst you must pour out your purse to Landlords and whipers-in and your hat in your hand at the same time.

You have desired to know my business in the Indian Nation and also in Charlestown South Carolina. I went down the Tennessee river with a boat laden with flour and a number of other articles which I sold to the Indians and bought steers off them, and after stall-feeding the oxen, drove them to Charlestown, and just now am awaiting the arrival of a boat I have bought to go down the river in and expect to go in three days. No doubt you think it is a dreadful business trading with the Indians but you are entirely misinformed respecting it. You expect that we, who go there, must have Indian wives. True, the white men who live in the Nation have mostly red women but that is their pleasure. I have my license from the Agent of war for one year and I can come and go as I please without either woman or man, or with what company I see cause to take along.

I had intended being home last spring but it was out of my power. But God willing I shall see you all this one coming. I am sorry to hear of so many of my countrymen being confined and some executed but the permissive will of God must be done. You are under the rod of affliction in a high degree and Oh! that it may be sanctified and improved. You must await with patience your deliverance (if not come before you receive this) it is fast hastening.

You complain of a declension of religion in me which I may, with shame, acknowledge in part, but such religion as we have here none of you have ever seen. I was yesterday at a Sacrament (and exercise as they call it) but not so bad as some other meetings I have been at. We have them here for days as if dead being struck down; Others break into the greatest raptures of prayer, the Minister being obliged to quit preaching; and at their meetings you can see them dancing, running, jumping, jerking and twitching like a person in a violent convulsive fit. With praying, singing, and shouting glory glory as loud as they can bawl, and wringing and clapping their hands and such conduct as is rarely seen in religious worship, and I wish it may be by the direction of Heaven. In my present attempt it is as far beyond my tongue and pen to describe as you may think I am beyond anything you have ever seen, and although it hath alarmed me yet I cannot approve of it as God is a God of order and not of confusion.

We are now in this country under a real Republican Government and the best in the world and have got into possession of a new and extensive country which Ireland would not be a garden to. The river Tennessee goes down South into it and perhaps I may visit it before I return. My situation in life is not changed yet, and what is still worse, no appearance of it. As for my health thanks be to God alone I have never known (I may say) what it is to be sick one hour. If you receive this in time and it is in your power please send me some linen this season that it may be an addition to my stock in going home.

Please remember me to Brothers, Sisters, Cousins, and their Families, Mr Steph Hunter, Mr Rodgers’ Family and Loughconnely people and all enquiring Friends. Please make my apology for not writing as the distance and few opportunities puts it out of my power to write to everyone.

I remain your tender and ever affectionate Brother till death.

John Nevin

Derrykeighan Tythe Problem 1758

Parish of Loughguile - an 1801 letter