NI Water: MacKenzie ‘cleared’ according to his own company’s records…

I was away from Slugger Central for most of yesterday, tending to the needs of the day job (sorry!!). One fascinating little story appeared in the News Letter. Sam McBride notes:

…in a move which is highly unusual in FoI responses, the public body threatened to take legal action if the revelation was ‘misreported’. “Any attempt to misreport or misrepresent NI Water’s position in this regard will be dealt with appropriately and if necessary by legal action,” it said.

Misreported, eh? Here’s the company’s official line:

Responding to a further series of questions from the News Letter, NI Water said: “The chief executive deleted the email upon return from leave on 19 July 2010; he had been on leave from 2nd July 2010, for two weeks.”

Asked whether he was aware that the email was relevant to an FoI request when he deleted it, the body said: “The chief executive was not advised of an FoI request regarding this e-mail prior to its deletion. The chief executive was advised of the FoI request on 30 July 2010; NI Water’s records are clear on this.” [Emphasis added]

More specifically:

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.

Now let’s be careful here. I don’t for a moment think this is an idle threat, since as we have noted before for MacKenzie the stakes are very high. Were the alleged series of events proven correct, this could all end up in criminal proceedings.

Why? Because it is a criminal offence to dispose of material in the knowledge that it is subject of an FOI request. NI Water say that, based on their records, McKenzie did not have that knowledge. That’s why the company’s reference to records and 30th July are so important here.

But NI Water’s story is not the only possible explanation.

We understand that like many business leaders Mr MacKenzie brought his Blackberry on holiday with him. Mr Priestley’s original email was sent to McKenzie just the day after the two men had taken an unexpected roasting from the PAC. That would be on Friday 2nd July.

Reading an email on the Blackberry would not (see maehara’s note here) have affected its unread status on NI Water’s Microsoft Exchange system, and therefore it is entirely plausible that that email could have been read, but still register unread by CEO’s return to work and its deletion on Monday the 19th July.

If the Information Commissioner’s Office chooses to investigate, they should be able to inspect the back up copies which are made every night and kept separately from the main records at NI Water.

Even then we may still not know for certain whether he had read it, or not. Certainly if Paul Priestley was unwise enough to generate a digital paper trail of his own activities, there is no evidence that MacKenzie ever responded in kind.

Yet there are other complications beyond the vagaries of the Blackberry route. Mr MacKenzie was not the only one in the company to received that request on Saturday 17th July. Slugger understands that Company Secretary Mark Ellesmere was also copied in.

So far the company is treating a request for information on when Ellesmere actually read his copy,  as an FOI application. As such it is currently awaiting a separate response.

A similar request for copies of similar information was lodged with the DRD on Friday 16th July. It initially responded with a departmental statement to the effect that “no such correspondence exists”. Of course it was eventually revealed that Mr Priestley and all the other recipients inside the department had disposed of their copies.

The details of when and how those deletions were made, are now subject to the NICS’s ongoing investigation and unlikely to be released into the public domain before Sir Jon Shortridge concludes his investigation of Paul Priestley by the end of October.

Of course, none of this proves anything directly.  But perhaps both NI Water men ought to be recalled and asked some direct questions by the PAC on the matter?

Mick is founding editor of Slugger. He has written papers on the impacts of the Internet on politics and the wider media and is a regular guest and speaking events across Ireland, the UK and Europe. Twitter: @MickFealty