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ICO upholds decision on Maybury report

Alfred Maybury, the director of the Department of Child and Family Services (File photograph)

Information Commissioner Gitanjali Gutierrez has upheld a decision by the Department of Internal Audit to withhold the findings of an inquiry into the head of the island’s child protection agency.

However, Ms Gutierrez told The Royal Gazette that although the report did not have to be released under public access to information “this has no relevance to whether or not those records may or may not be disclosed outside of the Pati Act framework”.

Alfred Maybury, the director of the Department of Child and Family Services, was suspended last August after being accused of ignoring allegations about DCFS staff mistreating children in care. The Government later revealed he was also accused of not following official financial instructions.

The former Ministry of Social Development and Sport launched an inquiry in August.

The same month, the Department of Internal Audit was asked by Wayne Carey, who was then permanent secretary at the social development and sport ministry and has since retired, to conduct a concurrent review.

The social development ministry was abolished last November and DCFS became the responsibility of the Ministry of Legal Affairs.

David Burt, the Premier, told Parliament on December 14 last year: “It should be noted that investigations into various matters at DCFS are ongoing, and, as it has been in the public domain, there are two separate lines, one with the Department of Internal Audit and one with the ministry itself, handling items which may be considered against the conditions of employment and code of conduct.”

The Royal Gazette submitted a Pati request for the “full report into allegations of misconduct” against Mr Maybury in January.

Two public authorities responded to the request: Internal Audit and the Ministry of Legal Affairs.

Internal Audit said the record was exempt from Pati, while Legal Affairs refused to disclose whether the record existed because the ministry said to do so would “add unnecessary confusion to misinformation which is already present in the media and public domain”.

Ms Gutierrez, in a decision due to be made public today, found that Internal Audit “correctly determined that the Pati Act did not apply to the record”.

She said the department was right to rely on section 4 of the Pati Act, which removes certain records from the Act’s ambit where they relate to the function of specific public authorities, including Internal Audit.

Records relating to the general administration of Internal Audit are not exempt from Pati but Ms Gutierrez said she was “satisfied that the report does not relate to the general administration of Internal Audit”.

She wrote: “The single record at issue in this review is the report that Internal Audit issued on December 14, 2018 concerning allegations made against the director of the Department of Child and Family Services.

“The Information Commissioner reviewed the report and confirmed that it was created by Internal Audit.”

Ms Gutierrez added: “The Information Commissioner is satisfied that the report was created by Internal Audit in the course of carrying out its functions ... No right of access under section 12 of the Pati Act applies.”

In an accompanying letter to The Royal Gazette, the commissioner wrote: “I also note that when, as in this case, a record falls outside of the application of the Pati Act, in accordance with section 4 of the Act, it means only that the record is not subject to the right of access to public records set out in section 12 of the Pati Act.

“This has no relevance to whether or not those records may or may not be disclosed outside of the Pati Act framework.”

She said in her decision that Internal Audit told her the allegations about Mr Maybury were referred to it under section 11 (1) of the Internal Audit Act, which relates to suspicions of “irregularity or fraud of public funds”.

Section 13 of the Internal Audit Act says the department’s director “shall treat internal audit reports as strictly confidential and shall, except in pursuance of section 11 or for the purpose of any criminal investigation or prosecution, only disclose their contents” to the relevant permanent secretary or, if necessary, the Internal Audit Committee and the Auditor-General.

Mr Maybury returned to work in January after the Government said a “thorough investigation” had found that the claims against him were “not substantiated”.

Mr Burt told the House of Assembly on May 10 that he was “happy to discuss” making public the results of the internal investigations into DCFS.

He said of the findings: “Possibly, it might be something that a parliamentary committee may be able to request.”

The Royal Gazette asked the Premier on June 13 if he would establish an independent inquiry into DCFS, as proposed by children’s rights campaigner Sheelagh Cooper and Shadow Attorney-General Scott Pearman.

Mr Burt said: “As per my statement in the House of Assembly, the best way forward is for the standing committees of Parliament to look into the matter.”

Asked yesterday if the Premier would make public the Internal Audit report, a government spokeswoman replied: “Exemptions under the [Pati] Act are deliberately included as part of the law. These are meant to be applied and respected by all parties.”

Ms Gutierrez has yet to decide whether the Ministry of Legal Affairs was right to refuse to disclose the existence of a report.

To view the Information Commisioner’s decision on the Internal Audit report, click on ther PDF link under “Related Media”