A decision to suspend the release of certain files requested under Freedom of Information law in Northern Ireland is set to face a court challenge.
The family of a loyalist murder victim already taking a legal case over delays obtaining official papers linked to his death has issued pre-action proceedings over the suspension announced by the Public Record Office for Northern Ireland (PRONI).
The UK Information Commissioner’s Office has told PRONI it does not have the authority to release closed files due to Stormont’s powersharing crisis.
It cited the absence of an elected minister in its overseeing government department – the Department for Communities.
The PRONI has sent letters to a number of FoI applicants telling them while it has the papers requested, it cannot now provide them.
The move is set to impact many relatives bereaved during the Troubles who are campaigning for fresh investigations.
Lawyers acting for such families regularly use the PRONI to obtain coroner’s files from historic inquests and court papers from old criminal trials.
Belfast law firm KRW Law is set to challenge the move on behalf of the family of Martin Lavery, a father-of-three murdered by the UVF in Belfast in 1992.
The Lavery family has long been trying to secure files linked to an original inquest as part of its efforts to have a new coroner’s probe ordered.
They launched legal proceedings in 2016 against the then Department for Communities minister and DUP MLA Paul Givan for the length of time it had taken to obtain the files.
The family has now issued a pre-action letter to PRONI, warning that if the suspension is not lifted it will face separate judicial review proceedings.
Solicitor Kevin Winters said: “For many relatives of victims of the conflict and survivors of the conflict, access to material relating to the conflict and held by PRONI, including inquest papers and court records, is important in truth recovery and in legal challenges relating to conflict-related human rights violations.”
Closed files held by PRONI include court records; coroner’s inquest files; workhouse admission records; hospital admission records; prison records; school records; and other files created by Northern Ireland government departments that may contain sensitive information but have not yet been examined to determine if they can be released.
Civil servants have been running public services in Northern Ireland since the Stormont executive imploded in early 2017. But there has been ongoing uncertainty as to how much authority they have to take significant decisions.
Last month, Northern Ireland Secretary Karen Bradley passed legislation designed to give greater clarity to their decision-making powers.
A spokeswoman for the Department for Communities said: “From November 21 2018, certain Freedom of Information requests to PRONI are temporarily unavailable pending the appointment of a minster to the department.
“This applies only to closed records held by the Public Records Office. All other FoI requests to the department are being processed as normal.
“This is because we have been advised by the Information Commissioner’s Office that the Department for Communities does not have the statutory authority to process certain categories of Freedom of Information requests to PRONI without a Minister for the Department for Communities being in post.
“The temporary suspension applies to transferred closed public records held by PRONI.
“It will last until a minister with responsibility for the department’s functions has been appointed.”
In regard to Ms Bradley’s recent legislation, the department said it “does not provide a legal basis for senior officers to allow the operation of FOIA (Freedom of Information Act) in respect of transferred public records”.
An ICO spokesman said: “We are aware that PRONI has temporarily suspended the processing of FOI requests which specifically relate to ‘transferred public records’, in the absence of ‘an appropriate minister’ as required by law.
“We recognise the significant difficulties caused by these particular and unusual circumstances and are in contact with the Permanent Secretary of the Department for Communities and other stakeholders regarding this situation.
”Our priority at the ICO is to find a prompt and effective solution in order to protect the public’s right to access public information.”