Information Watchdog Upholds Massacre Families’ Complaint Against Police

Press Release: A small victory in our ongoing information battles against the police and their cover-up of the atrocity.

The Information Commissioner’s Office (ICO) has upheld a family complaint against Police Service Northern Ireland (PSNI) regarding the discovery of a covert British Army “ambush observation post” in the vicinity of McGurk’s Bar on the night of the Massacre.

15 civilians including 2 children were murdered in the no-warning Loyalist bomb attack on 4th December 1971. Previous historical investigations alleged there were no British Army units in the area, but this has since been proven incorrect.

Ciarán MacAirt’s grandmother, Kathleen Irvine, was among those murdered.

He discovered the existence of a covert British Army “ambush OP” [Observation Post] in secret Ministry of Defence files. A British soldier had accidentally discharged a gun and the details were reported to Battalion Command hours before the Massacre:

“Accidental discharge in the York St ambush OP. 1 x 9mm – no cas[ualty] – [NAME OF SOLDIER REDACTED]

Covert British Army Operation Ambush OP Vicinity McGurk's Bar

MacAirt raised a number of requests for information as a result of this significant discovery, including one to the PSNI because:

(1) a negligent discharge should have been reported to police at the time;

(2) police should have been informed of the existence of a covert British Army unit if only to prevent the possibility of friendly fire between the Royal Ulster Constabulary (RUC) and British Army.

Neither RUC then, nor PSNI now, have ever admitted the existence of the covert British Army unit in any of their investigations.

In fact, PSNI said that “to confirm or deny that the requested information was held take would longer than 18 hours and would therefore exceed the appropriate limit” [section 12 of Freedom of Information Act (FOIA)].

Nevertheless, the Information Commissioner’s Office ruled on Wednesday 29th March 2023 that PSNI was not entitled to refuse the request under section 12” as PSNI did not demonstrate “that confirming or denying that the requested information is held would exceed the appropriate limit”.

ICO has ruled that PSNI issues “a fresh response to the complainant that does not cite section 12 of FOIA in respect of the duty to confirm or deny that the requested information is held”.

Ciarán MacAirt said:

“This is but a small victory in our battle for truth and justice, although we expect PSNI to come back with another contrived excuse to withhold evidence in the mass murder of our loved ones.”                         

“It is contemptible that ordinary family members have to fight for scraps of truth over half a century after the McGurk’s Bar Massacre and its subsequent police cover-up.”

“Unfortunately, it proves that PSNI is up to its neck in the police cover-up to this very day. The British Army had prepared an offensive operation on the night of the McGurk’s Bar Massacre. Either PSNI did not know about the existence of this covert British Army ‘ambush observation post’ in the vicinity of Belfast’s most devastating mass murder; or it knew about it and tried to bury it. Neither reflects well on a modern-day police force that should care more about defending the basic human rights of citizens today, rather than defending a sectarian police force in the past.”

Christopher Stanley, Litigation Consultant, KRW LAW LLP, said:

“Information retrieval and truth recovery are central to the process of dealing with the Legacy of the Conflict in Northern Ireland. Exposing the truth, no matter how painful, is fundamental to establishing justice and accountability for the relatives of victims.”

“If Britain’s Legacy Bill becomes law, Freedom of Information requests such as this will become increasingly important to relatives of victims and campaigners. The PSNI cannot simply rely upon a stock response to such requests - including ‘Neither Confirm, Nor Deny’ - without further explanation or context; nor should PSNI rely upon outright exemptions available to it under the FOIA legislation without proper examination.”

“The ICO, the statutory authority in charge of regulating Freedom of Information, has, in this instance, ‘flushed out’ the PSNI which spends public money refusing and defending the vast majority of requests for information relating to the activities of the RUC during the Conflict.”

Related Information
The Original Request

On 26th April 2021, MacAirt wrote to PSNI:

“This request for information relates to a covert British Army operation in the vicinity of the McGurk’s Bar bombing of 4th December 1971 and a negligent discharge at it a few hours before. This follows advice and guidance from the British Ministry of Defence to contact Police Service Northern Ireland with the request for information. For your own guidance this refers to MoD FOI2020/08805. I have attached the MoD Internal Review for your convenience."

"British Military files prove that there was a covert British Military 'ambush OP' at York Street on the night of the explosion and that a Fusilier discharged his weapon by mistake there. I have attached this file for your convenience too. Subsequently, MoD has admitted that it has the surname of this Fusilier."

"May I request information in police repositories relating to this previously undisclosed covert operation and negligent discharge, please? This includes a search of any databases given to the PSNI by the British Army relating to its Operation Banner."

"For the record, the British soldiers deployed for this covert British military operation, including the named soldier, may have been witness to the McGurk’s Bar massacre, events leading up to it or thereafter, although their statements were not included in previous historical investigations. The families were told by the police, Office of the Police Ombudsman and Historical Enquiries Team that there were no British Army units in the area whatsoever although we now know this to be untrue.”

PSNI Response

PSNI issued a Refusal Notice on 8 September 2021 which cited section 12(2) of FOIA. PSNI stated that it would exceed the “appropriate costs limit” to determine whether or not it held the requested information.

MacAirt requested an internal review on the same day, and PSNI communicated the outcome of that review to him on 30 September 2021. PSNI maintained its reliance on section 12(2) of FOIA.

MacAirt contacted the Commissioner on 22 October 2021 to complain about the way PSNI had refused his request.

ICO Decision

The ICO found that PSNI's issue of a Refusal Notice did not comply with the terms of FOIA [section 17(5)]. Further:

1. The complainant requested information relating to British Army activity in Belfast in 1971. The Police Service of Northern Ireland
(PSNI) refused the request under section 12 of FOIA (appropriate limit). PSNI said that to confirm or deny that the requested information was held would take longer than 18 hours and would therefore exceed the appropriate limit.
2. The Commissioner’s decision is that PSNI was not entitled to refuse the request under section 12 of FOIA. The Commissioner is not satisfied that PSNI has demonstrated that confirming or denying that the requested information is held would exceed the appropriate limit.
3. The Commissioner requires the public authority to take the following steps to ensure compliance with the legislation.
 Issue a fresh response to the complainant that does not cite section 12 of FOIA in respect of the duty to confirm or deny that the requested information is held.
4. The public authority must take these steps within 35 calendar days of the date of this decision notice. Failure to comply may result in the Commissioner making written certification of this fact to the High Court pursuant to section 54 of FOIA and may be dealt with as a contempt of court.

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