NI Water: ICO looking into MacKenzie’s deleted email…

Yesterday Diana Rusk in the Irish News noted that NI Water supremo Laurence McKenzie just happened to delete that controversial email text which Paul Priestley sent him, a full 17 days after receiving it. But an FOI response from NI Water reveals he deleted it the day after NI Water received an FOI requesting it.

The request was eventually granted. Following a complaint from the person who made the original request, the Information Commissioner’s Office (ICO) in Belfast is looking into the matter.

In today’s paper they are calling it a ‘silver bullet’. This refers not to any future investigation but to the fact that this email – rather than the sloppy (to put it mildly) processes which led to the firing of the four NEDs last March – was what directly led to the suspension and investigation of Paul Priestly last month.

That the email itself was an attempt by Priestly to use the independent office of a member of his so-called Independent Review Team, (which helped bring to fruition Mr MacKenzie’s radical idea [text deleted by request]) has provoked little comment in the general media coverage of these events.

NI Water is at pains to suggest that MacKenzie did not formally know about that request until an internal meeting on 30th July 10. This is an important defence, not least from the point of view MacKenzie’s own commercial future.

Under legislation, the deliberate destruction of information requested in an FOI can lead to criminal proceedings.

That would require a second investigation as a follow up to the Irish News story, with a clear judgement from the ICO. In England, in practice, the ICO has, on occasion, been reluctant to get its hands too dirty.

He may defer, for instance, to NI Water’s procedural claim that there is no requirement to retain CC’ed emails of official records. It’s a claim would have been considerably strengthened had Mr MacKenzie deleted the email before the FOI request had entered the company building and not such an obviously short time afterwards.

As for DRD, they are refusing all requests for contextual details of the original email sent to Peter Dixon by Paul Priestly on the grounds it will form part of the official NICS investigation of Priestley by Sir Jon Shortridge. That’s not due to complete before November.

Whatever the outcome, this looks like yet another hare running that Mr MacKenzie can ill-afford…

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  • William Markfelt

    Surely it’s the deliberate destruction of material we already knew existed, and the contents of the same, so there can’t be much of an issue there, apart from ‘procedural’ (but then the whole NIW story is predicated by failures in ‘procedure’).

    As far as I recall, McKenzie claimed to have deleted it unread. As far as I can see, the only issue here is whether or not that was true, as knowledge of its contents would have or wouldn’t have informed his subsequent actions.

    But then, wouldn’t someone have had to open it in order to copy the contents for an FOI request?

    I’m sorry, but I’m not following the issue here, other than the fact that McKenzie is guilty of the same procedural failures that got his antennae twitching.

  • William Markfelt

    ‘an FOI response from NI Water reveals he deleted it the day after NI Water received an FOI requesting it.’

    Not quite. The Irish News claims it was received by NIW after 6pm on Saturday evening from…hehehehehehehe…..Declan Gormley, and the offending email deleted by McKenzie at 839am on the Monday morning.

    Those little details make some difference to understanding the full importance of this element of the tale.

  • DC

    MacKenzie’s email or Priestley’s sent one will be in the system somewhere in backup.

    I know the place I work stores all emails sent and received regardless of whether I delete them or not.

    Couple of middle aged todgers saying they deleted it doesn’t matter a damn as the new age tech boys can easily retrieve such emails, particularly within the Civil Service and Fujitsu services definitely.

    As all emails are stored centrally for ‘lawful business practice’ purposes.

  • Pigeon Toes

    All sorts of apparently non-existent documents are causing legal problems today.

  • William, here are some more emails and letters for your delectation: DRD and CPANI correspondence.

    I’ve asked NIW for the minutes of the September 2, 2009, meeting between MacKenzie, Murphy and Priestly [Steria related stuff and the need for ‘efficiencies’ on the agenda] and received the following follow-up reply: “No, NI Water does not hold minutes from this meeting.”

    Perhaps DRD will have a copy …

  • Pigeon Toes

    Cheers DC.
    That’s very helpful.;-)

  • William Markfelt

    ‘another hare running that Mr MacKenzie can ill-afford…’

    As an aside, and talking of fast moving things…I hear that a senior manager in a large local employer was so appalled at having one of the company’s vans whizz by him on the M1 that the ‘aerial on his car wobbled’, and as a result he tried to have the driver sacked (not by himself, mind, he is alleged to have had a henchman do his dirty work).

    Problem for the senior manager was that he was apparently so inept at even writing down a registration number that when said henchman went to give the driver his P45, the van alleged to have been doing the whizzing had been in the motor pool being serviced the entire day.

  • Pigeon Toes

    “But an FOI response from NI Water reveals he deleted it the day after NI Water received an FOI requesting it.”

    Offence of altering etc. records with intent to prevent disclosure.
    77. (1) Where-
    (a) a request for information has been made to a public authority, and
    (b) under section 1 of this Act or section 7 of the Data Protection Act 1998, the
    applicant would have been entitled (subject to payment of any fee) to communication of any information in accordance with that section,any person to whom this subsection applies is guilty of an offence if he alters, defaces,blocks, erases, destroys or conceals any record held by the public authority, with the intention of preventing the disclosure by that authority of all, or any part, of the information
    to the communication of which the applicant would have been entitled.
    (2) Subsection (1) applies to the public authority and to any person who is employed by,is an officer of, or is subject to the direction of, the public authority.
    (3) A person guilty of an offence under this section is liable on summary conviction to afine not exceeding level 5 on the standard scale.
    (4) No proceedings for an offence under this section shall be instituted-
    (a) in England or Wales, except by the Commissioner or by or with the consent of
    the Director of Public Prosecutions;
    (b) in Northern Ireland, except by the Commissioner or by or with the consent of
    the Director of Public Prosecutions for Northern Ireland.

  • William Markfelt

    Nevin,

    The first thing I’m picking up on in your link is Martina Hanna (Commissioner’s Office) doing a ‘steer’ in the direction she’d like the subsequent press release (letter to Gary Fair) to go, i.e. that the exemption to the official appointments process is well flagged up.

    We’ve had the matter of emails that that attempt to ‘steer’ responses in the manner in which persons want them to be steered in this story before, haven’t we?

  • William Markfelt

    http://www.ecrimewales.com/upload/pdf/Archiving_whitepaper_regulations_UK.pdf

    ‘if a document is at all recoverable (for example,
    a trace of it remains on the network) it must be retrieved in order to comply with the
    FOIA.’

    It would be interesting to learn if these deleted emails had really disappeared, or if there is some ‘trace’ of them. I assume that it is incumbent on those receiving the FOI requests to actually do a ‘trace’ search for them.

  • Jj

    Has anyone yet seen this email?

    The BBC reported they had sight of it.

    Was Gary Fair copied into it or had it fwded to him by Lian Patterson?

  • And who provides management information services for NICS? Steria. Paul Wickens, former Steria managing director, left that company in January 2009 and joined the Department of Finance and Personnel in August 2009. Perhaps he could arrange for some of these missing emails to be retrieved ..

  • William Markfelt

    Well, Francois Arnaud, Steria’s overall CEO says ‘we pride ourselves on daring to push the boundaries of what’s possible’.

    Deep dive forensic recovery of emails?

  • Pigeon Toes

    Being deleted means they are recoverable, and as such fall within the remit of the FOI, as they are still on the “system”

  • alan56

    Surely even the deleted email can be traced and recovered. Fairly easy for the IT guys I would think?

  • Pigeon Toes

    “No one died as a result of any action or inaction by DRD’s Paul Priestly”
    Eamonn Mallie Twitter
    No but some would argue they lost their home, their family their country and their peace of mind…

  • Pigeon Toes

    “Being deleted means they are recoverable, and as such fall within the remit of the FOI, as they are still on the “system”

    As above…Though perhaps the cost of recovery might preclude this

  • William Markfelt

    Or just the fourth, for others. Years of depression and hopelessness and helplessness.

  • Pigeon Toes

    Some have even lost their commas, and any grammatical (or otherwise) sense.

    But never their sense of humour or deep sarcasm….

  • William Markfelt

    Sarcasm, certainly.

    But some people don’t have a sense of humour, though. They seriously consider this sack of shit to be ‘democratic government’.

  • William Markfelt

    ‘Being deleted means they are recoverable, and as such fall within the remit of the FOI, as they are still on the “system”’

    I think I read, PT, that £10 is the maximum that can be charged for access to such material. Perhaps someone can clarify?

    Werder Bremen 2 Spurs 2, incidentally.

    That’ll do pig, that’ll do.

  • Pigeon Toes

    £10.00 Subject Access Request. 40 days to comply (not working days)

  • Steve Austin

    Deep dive forensic recovery of emails ?

    Do we have the technology?

  • Local Government Officer

    Alan you raise a point that I must look into at work. I know that I don’t keep emails in my “inbox” beyond six months. For example, in December, I’ll clear out Jan – June, mostly because we only get a certain limit on space that we can have.

    I wonder where I stand if I receive an FOI asking about email correspondence if I haven’t kept them in my inbox. Say they ask for correspondence on a particular project that maybe hundreds of emails have been swapped on. How does an actual search happen, even on a server? I’m thinking here someone asks about a project we’re running with, for example, DOE from a year ago. We might have a few thousand emails from DOE. Where does that begin? Even if ALL emails are kept in some ghost-like form somewhere, I know WE certainly don’t “catalogue” or categorise them.

    DC says “As all emails are stored centrally for ‘lawful business practice’ purposes.” I really don’t think that happens outside of central government, and maybe the big external beasts of health and education – trusts and the like.

    Sorry if this sounds naive but I am asking for a couple of reasons, and cover-up ain’t one of them.

    Of all the FOIs that have come through my department (and I have to say, it isn’t that many) none have ever asked for emails. In fact, I think this is the case across the whole council. I’m just thinking, wouldn’t you have to be fairly specific about asking for an email? Like. almost name individuals?

    AND…just by the by…what would happen if we got an FOI saying “I want access to all the emails between Local Government Officer and his wife”? Does that count as “vexatious”?

    AND! I have mentioned this before on another thread – how do the cuts-to-come affect FOI? If a big government department cuts a quarter of its staff, I am going to assume that the FOI team may get hit the same way. Won’t that affect response times? And do they keep spending on IT just to facilitate electronic record-keeping?

    Sorry. It’s late. The mind has wandered. I’m not an IT boffin and I don’t set policy. I’m only involved when the queries come in and they pertain to me. Maybe the answer is “you store them and you just don’t know it”.

  • Pigeon Toes

    AND…just by the by…what would happen if we got an FOI saying “I want access to all the emails between Local Government Officer and his wife”? Does that count as “vexatious”

    LGO No, that would amount to your personal data/ correspondence, unless of course it was within a professional capacity.

    You are entitled to have some privacy at work ;-D

  • Pigeon Toes

    In the NIW case, that’s exactly what they did.

    There was a statement to the press to that effect, when the whole issue became public.

  • William Markfelt

    Unrelated, yet curiously related….

    Today, Sharon Shoesmith is giving evidence to the Education Select Committee.

    She has just been on the radio with her opening remarks which I can paraphrase as ‘if you believe what is being said (in regard to the Baby Peter case) by some politicians and the press, then more fool you’.

    It’s a situation some people will recognise as being replicated in the actions of various agencies in relation to NIW and other issues.

  • interested

    surely if D Gormley sent it its in his sent mailbox.

  • Pigeon Toes

    It also now looks as if the Regional Development
    Committee will be considering the Paul Priestly commissioned, “Independent Investigation” into the procurement of the Rathlin Ferry on the 29th September.
    That’s the report they were to look at in 2009 ….

    The Committee has decided to schedule time in its work programme in early 2009 to more carefully consider the report findings. Undoubtedly there are lessons to be learned. Today’s session is the beginning of the process, and we are looking forward to working with the Department inn improving and enhancing its performance in this area, and improving
    public confidence.”

    Before that, there could be more embarrassment for DRD,
    as the employment tribunal of the whistle-blower in the case, is scheduled for 22nd to 24th September.

  • Reader

    Local Government Officer: AND! I have mentioned this before on another thread – how do the cuts-to-come affect FOI? If a big government department cuts a quarter of its staff, I am going to assume that the FOI team may get hit the same way. Won’t that affect response times?
    Look on the bright side, on an ongoing basis there will be 25% less material to retrieve. And hopefully the FOI team will have retained its best 75% of staff and shed the rest.

  • interested

    or just leave NIW to the French multinationals Steria and Veolia

  • malairt

    Steria aren’t doing anything for NIW, are they? They walked away in July 2009.

  • interested

    so its not just the Brits that find it difficult here!

  • Pigeon Toes

    “The £10.00” maximum relates to your own data under a “subject access request….

    Some organisations are not aware of their obligations under this, and unsurprisingly refuse to comply.

  • Pigeon Toes

    http://www.newsletter.co.uk/news/39Boss-was-on-holiday-when.6534790.jp

    “Boss was on holiday when email arrived’

    NI Water boss Laurence MacKenzie (right) with the regional development minister, Conor Murphy

    ADVERTISEMENT

    Published Date:
    16 September 2010
    By Sam McBride
    NORTHERN Ireland Water’s boss did not know that a freedom of information request had been made for a key email when he deleted it, the company has said.
    The publicly-owned utility said that chief executive Laurence MacKenzie was on holiday when the email from suspended DRD permanent secretary Paul Priestly was received and deleted it on the day that he returned to work.

    The email led to Mr Priestly’s suspension as it contained a draft of a letter the top official wrote for Phoenix Gas chief executive Peter Dixon attacking MLAs.

    Mr Priestly copied the correspondence to senior DRD officials and Mr MacKenzie.”

  • Jj

    As a body at arms length from DRD, it may be plausible to claim that NIW didn’t know about the FoI request.

    There is no such excuse for the “senior DRD officials” especially when they were and are fully aware of the FoI interest from the public on these matters. This awareness was demonstrated in an email from a “senior DRD official”, Gary Fair, which stated that he was being deliberately vague and opaque – i.e., deliberately withholding information to avoid disclosure.

  • wild turkey

    “Gary Fair, which stated that he was being deliberately vague and opaque ”

    ah but Jj, thats what they’re paid to do. being open and honest would be a seriously career limiting move.
    the “truth”, whatever that elusive animal might be, is not just in them. or as they might say at senior levels of the NICS when considering draft responses to information requests “Fair enough, that’ll keep the proles guessing”

    when it comes to disingenuity and vague opaqueness, well fair enough perhaps… but we the public, their paymasters, should reserve the right to piss down their throats.