Questions over NI ombudsman's contempt threat
Questions have been raised over whether the Public Services Ombudsman had authority to threaten a complainant with contempt, the BBC Nolan Show has revealed.
Marie Anderson told a complainant they could be held in contempt and forced to pay all legal costs if they shared the findings of one of her own reports.
Mr Burke had been in a dispute with the Charity Commission.
However, on the same day the ombudsman issued the legal threat to Mr Burke, the BBC understands she authorised the Charity Commission to share the findings and recommendations of the report with the same department he had written to.
The ombudsman says it is her intention to publish the report "once she is satisfied that there would be no prejudice to ongoing High Court proceedings".
In a letter, Marie Anderson - whose report was critical of the actions of the Charity Commission against Mr Burke - stated that he could be held in contempt for disclosing the "confidential investigation report in light of potential prejudice to ongoing High Court proceedings involving the CCNI".
But the proceedings to which the ombudsman refers is a civil case being heard before a judge. Mr Burke is not a party to that case and it is understood that the matters at issue in it are not related to any of the findings of Mr Burke's complaint as set out in the ombudsman's report.
The Nolan Show understands it would therefore be most unlikely for any potential risk of prejudice to arise.
The ombudsman was asked to explain on what legal basis she had issued the threat to Mr Burke.
In a statement, her office said that in their view there is a potential prejudice to ongoing legal proceedings: "The ombudsman recognises that others may have a different view but her decision has been made after careful deliberation and in the exercise of her statutory authority."
It said the decision will "be kept under review" and the report will be published when the ombudsman considers it "appropriate to do so".
The ombudsman was also asked if she had made the court aware of the existence of her report, given that she is apparently concerned that it may be relevant to the case.
Her office said that there "had been no request for her to do so, and "if a request is received it will be given careful consideration".
She also defended her decision on the grounds that it was a "proportionate response" and that she had allowed the Charity Commission to share the findings with officials from the Department of Communities to give effect to her recommendations and "in light of the complainant's disclosures".
'Pretty scary stuff'
Mr Burke told the Nolan Show the threat of being held in contempt was "pretty scary stuff for an ordinary working man". He added that it had taken three years to compile the report.
He said: "No-one should be afraid of the truth.
"I know the ombudsman isn't allowed to release the information given during the investigation but the findings surely should be made public, because the findings are absolutely in the public interest, and they are the truth."
The BBC understands that the unpublished report vindicates Mr Burke's claims that there was maladministration by the CCNI, and that it conflated the actions of another individual with himself and that his privacy was breached.
The CCNI has now apologised to Mr Burke, paid him £500 compensation and has removed its report.
The threat to hold Mr Burke in contempt was made when he complained to the Charity Commission and officials in the Department of Communities about the reason CCNI had given on their website for the removal of its own report.
An email seen by the Nolan Show reveals that Mr Burke referenced the existence of the ombudsman report in an email that included the Charity Commission and officials from the Department of Communities.
In correspondence with the Nolan Show, the ombudsman's office argued that Public Services Ombudsman Act (Northern Ireland) 2016 meant that all investigations should be conducted in private and that she can "share her report only with the parties and any person she thinks appropriate".
They said: "The report provided to Mr Burke on 6 July clearly stated that it is confidential. Mr Burke was also informed that the report would not be published at this time due to the potential of prejudice to ongoing High Court proceedings. The ombudsman has obtained legal advice on this issue which clarifies that her decision in this respect is correct."
The Nolan Show understands that the ombudsman's office considers that the fact that information provided to the ombudsman cannot be disclosed apart from in certain circumstances - including for the purposes of a report - means that the actual report cannot be made public by one of the parties who has been given it.
Charity Commission court case
The Attorney General for Northern Ireland, John Larkin QC, is involved in a High Court case challenging the Charity Commission in the High Court.
It relates to a decision of the commission on Lough Neagh Rescue Limited, of which Mr Burke was a trustee.
The legal expert Joshua Rozenberg told the Nolan Show that he believed the ombudsman was being "very cautious".
"It's one thing if there's a jury, it's one thing if there are criminal charges, but as I understand it what this judge is being asked to decide is a question of law.
"It's what the law says on this particular issue. The issue is a question of statutory construction - what an act of parliament means, whether the Charity Commission can delegate its powers to its staff.
"I can't see how anything the ombudsman might find on the facts should affect that question of law, but I fully accept there may be more to this case than has been made public."
On the assertion by the ombudsman that it would be "unlawful" to share her report, Joshua Rozenberg added that she may be right in saying that her reports are confidential until she decides to publish them - but that it is quite another thing to say that Mr Burke would be in contempt of court.
He added that: "She [the ombudsman] says that Gregory Burke is at risk of being punished. I'm not at all sure that that's completely accurate, it's not at all clear that it provides penalties of the sort she's talking about.
"On the other hand, it would no doubt be prudent for Mr Burke to persuade her to publish it, and perhaps not test this question about whether he can be punished for disclosing what she says is a confidential report at the moment."
'Fair and efficient'
The ombudsman has publicly committed herself to "ensure that the people of Northern Ireland are served by a fair and efficient public administration that is committed to accountability, openness and quality of service".
The Nolan Show asked the ombudsman what the purpose of her office was if reports were to be kept secret.
In a statement, her office said "it is for the ombudsman to decide if it is in the public interest" to publish a report.
It added that "there are reports which are not suitable for publication, even in anonymised form" and, in the case of the report on Mr Burke, "where there is a public interest in ensuring her actions do not prejudice ongoing litigation in the High Court".
It also said that it "is the ombudsman's intention to publish the report relating to Mr Burke's complaint once she is satisfied that there would be no prejudice to ongoing High Court proceedings".
The ombudsman was not available for interview.
The Charity Commission said it could not comment on whether it had opposed the publication of the report, and on what basis, for "reasons of legal confidentiality".
Marie Anderson is also the Judicial Appointments Ombudsman and the Northern Ireland Local Government Commissioner for Standards.