Gagging Clauses – Comment added to Opendata Consultation – October 2011

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The following comment has been added to the Government’s Opendata Consultation (recently ended):

“Two UK Councils have implemented a means of preventing ex-employees from exercising their future FoI / DP querying rights.  These were drawn up within compromise agreements following internal disputes.  These are Cheshire West and Chester Council, who have stated they will use the ‘ban’ again and Brent Borough Council.

The Information Commissioner has confirmed that the practice does not breach either Act.  No breach is committed because the recipient of the ‘ban’ will not make a request for fear of being pursued through the courts by the ex-employer.

The recipient of the ‘ban’ would need to make a request, have it turned down by the data controller quoting the ‘ban’ as the justification for withholding information.  The ICO would then step in, because its own opinion is that the only means of withholding data is through an exemption written into the Act.

However, there is a loophole waiting to be exploited here. Councils who have a lot of ‘dirty washing’ they don’t want to hang out in public, could use this tactic as an ongoing means of concealment.  There is even scope for them to feel emboldened, and to continue behaving immorally or unlawfully, because they have an effective means of covering up.

I feel the Act needs to be changed or a judicial review should be sought to prevent this happening.

At the moment, we have a situation where councils are free to claim a commitment to openness and transparency, whilst breaching their own internal data and information policies and breaching the spirit of the FOIA and the DPA.”

Thu, 27/10/2011 – 10:52 — Paul Cardin

More here: (Page 6)

And here:

And here:


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