Powerful official working to end Stormont secrecy presided over suppressing material
The senior civil servant in charge of efforts to make Stormont less secretive was herself responsible for a process which wrongly suppressed the release of potentially embarrassing material, the News Letter can reveal.
Sue Gray, one of Whitehall’s most senior mandarins who shocked many observers by moving to become permanent secretary of Stormont’s Department of Finance a year after Stormont’s collapse in 2017, has been leading the work to make Stormont more transparent if devolution is restored.
However, documentation obtained by this newspaper reveals several occasions where she was either responsible for a decision to – or attempted to – prevent the publication of material which under the Freedom of Information Act should have been released, but might have caused her some embarrassment.
Mrs Gray’s department stressed that although she was named as the decision-maker who initially withheld information, she had not in fact even seen the information and the real decision to withhold the information was taken by a more junior official.
Ironically, the information she sought to prevent becoming public was in relation to a powerful new role she had created which was ostensibly intended to “champion openness and transparency” and adopt a “more proactive approach in publishing material and data online”.
In April, Mrs Gray decided to create a new communications supremo who would also be responsible for transparency and decided not to advertise the post externally.
The post, which is two grades higher than the normal press office positions within departments, was given to Mark McLaughlin, a former Stormont Castle press officer who is well regarded both inside and outside Stormont. Mr McLaughlin reports directly to Mrs Gray as permanent secretary.
The head of communications and engagement role oversees both the press office and the department’s Freedom of Information (FoI) responsibilities, the publication of open data, internal communication and the ministerial private office, presiding over a £1.5 million budget.
It is now clear that the post was created on Mrs Gray’s instructions at unusually short notice, and at the time one senior political figure involved in Stormont before its collapse said that “ministers would have been slaughtered had they suggested such a thing”.
In response to an FoI request for details of how the job was created, the department initially blacked out some key sections of the documentation, including parts of a letter from the Civil Service Commissioners, the body responsible for ensuring that civil service appointments are made on the basis of fair and open competition.
The department justified those redactions under an FoI exemption which protects personal data. It said the blacked out sections were “either personal information, opinions or correspondence not relating to this particular competition”.
However, the News Letter has obtained the original letter and it is clear from it that some of the blacked out sections did relate directly to the request and were not about protecting personal data – but could have been about covering the potential embarrassment of the department or Mrs Gray.
The letter from the civil service commissioners expressed a series of concerns about what she was doing. It said that the commissioners “are disappointed that this competition is not going to be advertised externally particularly as the competition will be used to fill a senior civil service position in the NICS. Commissioners note that the requirements of this post might be particularly suited to external competition ...”.
Another blacked out sentence had said that the civil service was consulting with trade unions “regarding the proposal to establish external recruitment as the default position. However, you will understand that commissioners are disappointed that this competition is not going to be advertised externally and furthermore, that this trawl will be used to fill two other Grade 5 posts.
“Commissioners have previously highlighted their concerns in relation to the impact of running internal SCS [senior civil service] competitions, particularly in relation to achieving gender diversity plans and targets within the NICS ...”
Other documentation shows that it was Mrs Gray who personally signed off on the FoI response which wrongly blacked out that material.
When asked how it was that Mrs Gray – who has an excellent knowledge of FoI from her time in Whitehall – came to approve such a flawed response, the department said that it was “committed to openness and transparency and all Freedom of Information requests are handled in line with the legislation.
“We reject any assertion that the redacting of information was for any other reasons than compliance with the FoI legislation.
“The information redacted was outside the scope of the FoI request as it related to a different recruitment competition. Information was also redacted under exemption section 40(2) where names of junior staff were included.”
It went on to say that another section of the department had redacted “what was perceived ... to be personal opinions and therefore considered personal data under GDPR. This was an error on the part of the [department].
“The permanent secretary in reviewing FoIs does not see unredacted versions when a section 40(2) [personal data] is applied and is not privy to the personal data and would have had no way of knowing they were made in error.
“The requester then sought an internal review. During the process it became clear that the redactions were made in error and were overturned by the department’s internal review. The response was reissued and the only redactions that remained following the internal review where those junior staff (under G7) names that were exempt under section 40(2), and information that was outside the scope of the request.”
After the original FoI refusal was appealed, Mrs Gray took considerable personal interest in what was released.
However, the documents show that Mrs Gray was not arguing internally for greater transparency, but for the withholding of sections of what other civil servants wanted to release.
And that information can only be reported because civil servants bungled in attempting to black it out – but left it possible to be read.
Even when a civil servant argued that the information should be released, Mrs Gray proposed a delay until another civil servant returned to work “as I would be concerned about releasing some of the other documents which were draft and not sent”.
Mrs Gray’s initial decision to withhold sections of the material had been challenged by the individual who made the request.
A civil servant who considered the appeal proposed overturning a series of decisions which Mrs Gray had made.
The official said that exemptions in FoI law – which allow departments to withhold material in limited circumstances – had been “inappropriately cited”.
However, Mrs Gray responded by arguing that some of the material in the Civil Service Commissioners’ letter was “inaccurate” and therefore should be withheld. She also said that some of what was proposed for release was not strictly relevant to the request “and should be redacted on basis it’s out of scope”.
A civil servant involved in handling FoI requests responded to challenge that. They told her: “I note your comments in relation to redacting an element of [the Commissioners’] letter on the basis that this is an inaccurate interpretation. However, it does, in part, relate to the competition and in my view falls within the remit of the request for information ...”
However, even at that stage, Mrs Gray did not immediately agree to the information’s release.
Instead, she responded to say: “I suggest we leave this for [another official’s] return as I would be concerned about releasing some of the other documents which were draft and not sent.”
Mrs Gray’s actions are of particular significance because it is she who has been leading the element of Stormont talks – which has now stalled – looking at how to end Stormont’s culture of secrecy and make it a more transparent institution.
One of the key problems with Stormont exposed by the RHI scandal was the reluctance of many civil servants and politicians to write things down, to answer FoI requests or to keep minutes where that may be embarrassing.
Mrs Gray has been involved in preparing for the possible return of devolution by tightening some of the rules which contributed to past problems and several sources inside and around Stormont have spoken positively about her work as a senior outsider coming in to shake up the Northern Ireland Civil Service.
When asked if Mrs Gray realised how her actions may cause concern as to whether she is the best person to deal with such a matter, her department responded with a statement which disputed that she had improperly sought to withhold information.
It went on to say: “The Department of Finance has demonstrated our commitment to open government and transparency by publishing the department’s gifts and hospitality register, permanent secretary expenses, and permanent secretary gifts and hospitality registers quarterly on the OpenDataNI portal.
“In addition, in October the department established a new Open Government Implementation Group. This is a joint forum, made up from representatives from each of the Northern Ireland Civil Service departments and Open Government Network representing civic society.
“This group has responsibility for promoting the principles of Open Government/Open Data, overseeing the implementation of Open Government/Open Data commitments outlined in the UK’s 4th Open Government National Action Plan 2019-21.”