Opinion of Senior Counsel, Hugh Tomlinson QC, on Freedom of Information “ban” by Cheshire West and Chester Council –

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Following Cheshire West & Chester Council’s hideously misconceived “ban” on my statutory FoI and personal Data Protection querying rights, the time has come to release the opinion of Senior Counsel Hugh Tomlinson QC, who has granted his permission.

This “ban” lasted for 20 months, between October 2009 (my leaving date) and June 2011 – original www.whatdotheyknow.com request here – It took an instruction to possibly the country’s most senior privacy lawyer for the council to realise its behaviour was ultra vires and it had gotten too big for its little boots.

The “ban” flew in the face of the council’s own internal Freedom of Information and Data Protection policies (and certainly every other council’s policies up and down the country).  These are always phrased to embrace accessibility, to promote openness and transparency and to speak up for the free and uninterrupted flow of information.  However, the Council’s most senior Data Protection person on site, who understandably had a large hand in drafting Council policy, admitted to me that he was “never consulted” over this defensive and retrograde step.

Neither was this “ban” democratically scrutinised by elected councillors – possibly because there was a danger elected officials may have taken their role seriously and “raised a red flag” upon spotting the folly of it all.

So it became the private, back-office, unscrutinised work of the monitoring officer, Simon Goacher, and his “team” – as trotted out in an email, heavy on the “flannel”, from Councillor Alan McKie, chair of the Staffing Committee.  Despite the council’s lofty public claims to “democratic accountability”, when a “ban” on freedom of information and data protection became a necessity, the legitimate and compelling public interest never really got a look in.

The council have now claimed, in response to a subsequent FoI request of mine that no information is held” on this subject.

With that, the obvious question arises, “Why on earth did they feel the need to do it in the first place?

And now, into the mix comes Hugh Tomlinson QC’s opinion, which gives clarity, and makes an important distinction between historical and future requests.  For me, the key statement is made in paragraph 5:

Opinion of Counsel

The Council failed to give any assistance by clarifying the meaning of the clause, preferring instead to cave in enigmatically.

With the prospect of serious litigation being mounted, the council declared they “did not accept the provisions within the agreement were unlawful”, but it was all a long time ago, and they were now “happy to confirm that [I] was not prohibited from making requests under the [FoI and DP Acts]”.

I’ve interpreted this as the Council running away, taking their little ball with them, and turning back to shout, “We were right all along anyway….”

My reading of counsel’s opinion is:

If an employer proposes a compromise agreement with an FoI / DP gagging clause which seeks to prevent an employee or ex-employee from making FoI / DP requests of this employer, specifically related to the historical circumstances which have led to an employee’s departure, that is OK.

If an employer proposes a compromise agreement with an FoI / DP gagging clause which seeks to prevent an employee or ex-employee from making FoI / DP requests of this employer (or any other employer) in the future that is not OK.

The fact that the agreement is signed in the presence of independent legal advice appears to have some bearing on the former, but not the latterwhich appears to maintain that contract law trumps statutory rights.

But I am NOT a lawyer.  Any comments on this subject are most welcome…

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