The Troubles and FOIA - why are historians not writing about lack of access to records?

Inability to get basic FOIA requests completed hector work of historians and has the potential to re-traumatise victims and survivors

My interest in resurrecting this article (which I had been drafting since December 2023) was piqued and galvanized by Sam McBride’s recent articles about NIO records in the Belfast Telegraph. I’d also like to acknowledge Huw Bennett’s work on raising awareness around contentious records going back to 2012.

In March 2014 I was working in the Public Record Office of Northern Ireland. As a historian of the Troubles then writing a book on early 1970s loyalist militancy which became Tartan Gangs and Paramilitaries (Liverpool University Press, 2016) I understood that it was crucial to keep my research and day job separate - in other words, I would never use information in files that were still marked as ‘Closed’ for my own research. This would be unethical and unfair as well as illegal.

Despite this I was obviously aware that there existed a significant number of records that haven't been accessioned and others that hadn't yet been catalogued and therefore were not available on the public catalogue. Chief among these were 1970s era internee files.

The existence of these files intrigued me, though with them being kept under the highest level of security I never had cause to look at them as part of my day to day work.

I knew that certain internee files would be of potentially significant value to my research. Intelligence relating to individuals such as Lenny Murphy, John McKeague, Bo McClelland, Davy Payne, Ned McCreery and other long since deceased loyalist militants would provide a possible granular insight into the lives of individuals as they operated in the violent and bloody days of the early 1970s.

As much of my research was based on oral history interviews, I felt that getting an alternative view on some of these former leading loyalists would add more balance and context to my work.

Although not on the public system, anyone is entitled to write to PRONI and ask if files are held there. Like any member of the public I was bound to write to PRONI and make a request for access to these files with the same amount of naiveté that a layperson would.

On 7 March 2014 I submitted an initial FOIA for the following information:

John Dunlop McKeague, deceased 29 January 1982 – Inquest File (BELF/6/1/1/48/11); John Dunlop McKeague - Internment File (NIO/5/1956); John Dunlop McKeague - Prison File NIO/32/2/221

Stephen Desmond McCrea, deceased 18 February 1989 – Inquest File (BELF/6/1/1/55/20); Court File (BELF/1/1/2/251/66)

Robert George McFarland, deceased 25-26 October 1971 – Inquest file (BELF/6/1/1/37/100)

This was acknowledged by PRONI on 1 April 2014.

Following this request, on 24 April 2014 I made a further request for:

Internment/Prison files – Samuel James McClelland (NIO/5/450); Hugh Leonard Thompson Murphy (NIO/5/860 and NIO/32/2/323); Edward McCreery (NIO/5/878); Hugh David Cecil McAlden Payne (NIO/5/1925); Samuel Bryans McClure (NIO/32/2/520)

Court Files - David Cecil McAlden Payne (BELF/1/1/2/252/22) and Albert Walker Baker (BELF/1/1/2/253/206, BELF/1/1/2/253/207, BELF/1/1/2/253/208, BELF/1/1/2/253/209, BELF/1/1/2/253/210)

I received a response to this request on 25 May 2014 stating (in a similar fashion to the previous response):

The Public Record Office of Northern Ireland will be responding to this request under the terms of the Freedom of Information Act 2000. The reference for this request is DCAL/2014-0238.

I can confirm that PRONI does hold the files that you have requested and under the terms of The Freedom of Information Act 2000, we are required to consult with relevant third parties, such as The Northern Ireland Court and Tribunal Service and the NIO before any information can be released. PRONI are currently working through a significant backlog of requests and it may be some time before your request can be completed.

I will be in touch again when this particular file goes for consultation, and as it moves through our system. If you have any questions, please do not hesitate to contact me.

With the deadline for completion of the book marked as August 2015 I thought that I had given myself more than enough time to get sight of the files I had identified.

In May 2014 I left PRONI after my temporary contract had ended and for a number of weeks the requests were at the back of a long list of my priorities.

What followed was a saga which even Franz Kafka couldn’t have dreamt up.

On 15 December I received the following correspondence via email from PRONI:

Hi Gareth,

Apologies for the delay in getting back to you.

PRONI has been developing a new process for moving requests for conflict-related court and inquest files outside of FOIA for families and their representatives. Part of this new process, to be officially launched in January, involves signing an undertaking that means that the information released is released solely to the applicant and cannot be shared with third parties or made public.  Therefore, this option may not be available to you, if you wish to make any of the information public. We also have the option of an academic agreement, which also gives access to the files under strict instructions when access is required for academic research.

With this is mind, I would be grateful if you could forward me some more details on what you wish to use the information for, and particularly if you plan to use any information on particular individuals or if it will be anonymised. This is just so we can be better informed about what route might work better for you. As is stands under FOI, your requests are not due to go for consultation until February.

I look forward to hearing from you.

Regards,

xxx

Just under an hour after I received the email I sent the following back to PRONI:

Hi xxx,

Thanks for your email.

As previously stated the material I am seeking access to is for use in a book I am currently researching which is entitled ‘From Young Citizens to Volunteers’. The book will be published in 2016 by Liverpool University Press and I am working to a deadline of July 2015 for submission of the manuscript, which is why I submitted my requests earlier this year.

The information I have requested concerns individuals who are no longer living, but who were involved in loyalist paramilitarism (the subject of my research) during the early 1970s.

I seek the material in order to gauge the observations made by security apparatus (British Government, NI Government, Royal Ulster Constabulary, HM Prison) about the individuals whose internment and prison records (as well as post mortem) I have sought access to.

I am happy to agree to an academic undertaking given that no-one but the deceased shall be mentioned in my work, and no references will be made to members of the security forces (in the unlikely event personalities are mentioned by name) or other living individuals mentioned in the records.

I do hope this clarifies my request.

All the best,

Gareth

Three days later, on 18 December I received a response from PRONI with a somewhat bizarre request, which added to my growing frustration at what I was beginning to feel was an unreasonable delay:

Hi Gareth,

That’s great thank you. Our head of section is content to go ahead with an academic agreement, subject to consultation with DOJ on the agreement.

There are a couple of things I need from you. First, a letter from your sponsor whether academic or from the publisher. Then, for access to the internment files in particular, I would need proof that the individuals are deceased. Hugh Leonard Murphy and Edward McCreery are both confirmed deceased, but I would need confirmation on Samuel James McClelland, Hugh David Payne and Samuel McClure. Otherwise, access to the internment files will have to go through FOI.

Once I get all I need from you, and confirmation that DOJ have accepted the terms of the academic agreement, I will forward it to you to sign, then we can arrange access to the files in January.

If you have any questions, please do not hesitate to contact me.

Regards,

xxx

Now, bear in mind that I had originally sought access to these files under FOI and had been diverted to an academic agreement (the foundations of which, in hindsight, look very shaky) I was now being ask to provide the evidence that some of the individuals whose information I was seeking access to were deceased.

After doing some brief research to obtain documentation proving that the individuals were definitely dead I sent the following to PRONI on 23 December:

Hi xxx,

that is fantastic - many thanks.

I'll chase up obits etc for the names you mention (I also sought permission to view John Dunlop McKeague's internment file and coroners inquest report)

I have attached an obituary for Samuel James McClelland from the UVF magazine 'Combat' and the link to a Scotsman item on Hugh David Payne (Davey Payne) http://www.scotsman.com/news/death-in-details-1-654840

I will get further details to you as well as a letter from Liverpool University Press asap and I hope you have a great Christmas.

All the best,
Gareth

As a follow-up, on 30 December I sent the following email:

Hi xxx,

hope you had a good Christmas.

To follow up on the previous obits, there is a reference to the passing of Samuel McClure in this article: http://www.nuzhound.com/articles/irish_news/arts2004/jul16_trimble_biog__WGraham.php

I will forward a letter from the publisher asap in early January.

Can I also please enquire about the status of the following files to which I sought permission in the first request:

John Dunlop McKeague (deceased) ‘Internment file 1973 – 1975’ (NIO/5/1956)
John Dunlop McKeague (deceased) ‘Prisoner 1974 – 1992’ (NIO/32/2/221)
Coroner’s Inquest relating to the death of John Dunlop McKeague who died 29 January 1982 (BELF/6/1/1/71A)
Stephen Desmond McCrea (deceased) ‘murder and possession of a firearm and ammunition with intent’ (BELF/1/1/2/251/66)
Coroner’s Inquest relating to the death of Stephen Desmond McCrea who died at the Royal Victoria Hospital, 18 February 1989 (BELF/6/1/1/55/20)

All the best,

Gareth

Liverpool University Press kindly furnished me with the requested ‘sponsor’ letter on 6 January 2015 which I forwarded to PRONI immediately.

Having received no response I followed up on 13 January asking PRONI if my letter had been logged. The following day I received an email response:

Hi Gareth,

Yes thank you for sending that through, we’ve recently made some changes to the academic agreement and once these are completely approved, I will send it for you to sign, shouldn’t be later than the end of this week,

Regards,

xxx

Ten days passed before I emailed to enquire whether there had been any movement on the academic agreement. On 28 January, five days later, I received the following response:

Hi Gareth,

My apologies that this is taking so long, I will try and get the agreed version (if it is officially agreed) of the agreement to you by the end of today.

You will probably have to wait longer for access to the internment files, as these can contain highly secure information, and it is likely that some redactions will have to be made to those files before we can let you see them under the agreement.

Hopefully we can get the court and inquest files agreed before early February so you can start working on those.

Sorry again for the delay, but don’t worry you’ve not been forgotten about.

Regards,

xxx

By the end of the day I hadn’t received an agreement; in fact this was the last I heard until I decided to write to PRONI again on 20 April 2015 asking for a progress update.

At this stage an entire year had elapsed and I hadn’t received a single file I had requested. Instead I appeared to be at the mercy of the shifting sands of make-it-up-as-you-go-along bureaucratic practices. Later that day I received the following email back:

Hi Gareth,

If you could fill in the above researcher agreement for me, we should be able to give you access to most files. There is likely to be some issues with the internment files as I said before, but list everything on the agreement on ANNEX B and attached e-mail and we can hopefully work that out too. I already have your sponsor letter for Annex A

Regards,

xxx

A week later, on 27 April, I returned the completed researcher agreement form and received no confirmation that it had been received or processed. On 15 May I wrote a follow-up email asking whether the agreement had been received by PRONI and whether there had been any progress. My publisher, understanding the value of the information I had requested, had provided me with an extension to my original deadline and the book now had to be with them by the end of August 2015.

On 20 May I received the following response:

Hi Gareth,

The request for access under the researcher agreement is currently being considered by the DoJ and I should hopefully have an answer for you soon, I apologise for the continuing delay, it should hopefully not be too much longer. If I have not heard from the DoJ by the end of the week I will chase it up.

Kind regards,

xxx

On 1 June, having had no response, I emailed PRONI highlighting the urgency of my request and conceding that if I could even get access to McKeague's internment and prison files and nothing else it would be a result. Eight days later I got a response stating that PRONI were still waiting on a response from the DOJ around whether I could access the files under the agreement I had been asked to sign.

A year later, and with the book in production, I was granted access to all the non-prison and non-internee files. That was a 24 month wait between making the original request and gaining access to the files. This counted for an entire period where there was a then DCAL minister in post (with no Assembly suspension).

It's now ten years since I requested the internee files and suffice to say there has been no light at the end of the tunnel. Back in 2020 I received the interim custody orders (ICO) from PRONI.

These ICO are all but useless for research, unless a person was feeling particularly mischievous and wanted to get involved in recent debates over legacy prosecutions and their legality (or not).

Interim Custody Order ordering the detention of Lenny Murphy, not signed by the Secretary of State

It’s worth noting that on two occasions during this saga, having felt that I had exhausted all avenues, and not wanting to push under-resourced staff at PRONI any further, I contacted outside bodies to provide me with guidance or help. In early 2016 I drafted an official complaint to the Information Commissioner’s Office. Their response, received in February 2016, was unhelpful to say the least:

Dear Dr Mulvenna

Thank you for your email of 10 February 2016.

It is my understanding that you have made information requests to the Public Record Office of Northern Ireland under the Freedom of Information Act 2000 (FOIA).
 
You go on to say that these requests were made on 5 March 2014 and 23 April 2014 but that you have not had a substantive response to either.
 
Please be advised that under section 10 of the FOIA a public authority has up to 20 working days to provide a response. If the public authority has responded and you are dissatisfied with their response you will need to exhaust their internal review procedure before raising a complaint with the Information Commissioner’s Office ICO.
 
If you have already exhausted this procedure you may wish to raise a complaint with the ICO. However, please be advised the ICO is under no duty to deal with a complaint if it considers that there has been undue delay in bringing it to his attention.

We expect complaints to be submitted within three months of a public authority’s refusal of, or failure to respond to, an information request.
 
Therefore, due to the date you made your information requests it is possible that there could be an undue delay in raising your concerns with the ICO.
 
If this is the case, it may be advisable to make a new request for the information you require from Public Record Office of Northern Ireland.
 
If you would like to discuss the matter further you can contact me on my direct line, or alternatively you can contact the Helpline on 0303 123 1113.
 
Yours sincerely

xxx
xxx
Information Commissioner’s Office
Tel - xxx

The ICO was basically suggesting I start a process which had already taken almost two years!

In 2018, I made a second desperate throw of the dice and went straight to the NIO. The whole chapter and verse of that back and forth is not worth going into here, but suffice to say the obstinacy I encountered was a whole different world of frustration.

In the ten years since I first requested the internee files the NI Assembly has been inoperative twice, meaning that all FOIA requests submitted to PRONI were put into cold storage, adding to an already mammoth backlog which is being processed by a relatively small team of archivists.

Having experience of life on the other side of the fence, I sympathise with the curatorial staff at PRONI.

Despite this, there must be a better way to ensure that people are getting the information under FOIA that they are entitled to.

I have received files from Kew relating to the Troubles which contain reams of unredacted personal information. For understandable reasons of personal safety and security, this shouldn’t be the norm; however the withholding of internee files (for example) with little explanation provided for officialdom’s prevarication sets teeth on edge. What is in there that they are worried about releasing? Personal information can be redacted, jigsaw information can be redacted…so what is the issue? The state’s refusal to release some similar records from the early 20th century speaks to a larger issue - that of ‘national security’.

Obfuscation from the NIO does nothing to suggest that the past of this place will ever be laid bare. As we move into a period of mandated reconciliation and truth recovery, that isn’t a sustainable stance. Surely we are entitled to know more of what happened in our homeplace?

As historians of the Troubles we have an obligation to raise awareness of this state of affairs. More of us should be writing about the inability to get a basic FOIA request satisfied within a reasonable timeframe; we should also keep asking the difficult questions about what it is that the state might be withholding.