Gagging Clauses – Comment added to Opendata Consultation – October 2011

This site is moving to a new web address.  If you’re a follower, please browse to the new site and register again to continue to receive updates or email notifications.  The old ones will cease to work in around a month’s time, when the old blog is taken down.

All the old content has been moved across and nothing else has changed.

Thanks for your time, and for following and I’ll see you there soon:

www.wirralinittogether.wordpress.com

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: tinyurl.com/65ebm5o (Page 6)

And here: http://tinyurl.com/6gaf2ts

And here: http://tinyurl.com/3sufvqo

Link: http://data.gov.uk/opendataconsultation/questions


Site Meter

Use of the FOI / DP “gagging clause” – some UK Local Authority quotes

This site is moving to a new web address.  If you’re a follower, please browse to the new site and register again to continue to receive updates or email notifications.  The old ones will cease to work in around a month’s time, when the old blog is taken down.

All the old content has been moved across and nothing else has changed.

Thanks for your time, and for following and I’ll see you there soon:

www.wirralinittogether.wordpress.com

Actual UK Local Authority quotes on the use of FOI / DP related “gagging clauses”

Both Cheshire West and Chester Council and Brent Borough Council have used a “gagging clause” within a compromise agreement to prevent former employees from getting at their information after leaving employment.  Cheshire West and Chester are fully prepared to do it again in the future, whilst Brent insist theirs was a “temporary measure”.

The Information Commissioner regards this conduct as “likely to be in breach of the Act”.

Regardless of the apparent stripping away of statutory rights, the Local Government Association is firmly on the fence on this issue, stating that it’s entirely a matter for individual councils.

The following information was volunteered into the public domain – and represents the more revealing opinions of some of Cheshire and Brent’s fellow LGA members:

“We do not have any of these. We do not see how someone could by
a compromise agreement deprive themselves of their statutory rights.”
Halton Borough Council

“No staff (past or present) have signed any document purporting to limit
their statutory rights to information under the Freedom of Information
Act or Data Protection Act nor would we consider asking them to do so.”
Uttlesford District Council

“Please note that a compromise agreement bars an individual from making a
legal claim in exchange for money. This includes claims under the Data
Protection Act 1998 (I believe S13 would apply), and there is a term
within our agreements which covers this – but this would not prevent
anyone from making a subject access request under S7, and this right
cannot be removed.”
West Berkshire Council

“No employees have agreed nor indeed would we even think of requesting
them to forgo their right to approach the council in the future with
Freedom of Information and/or DPA Subject Access requests.”
Harrogate Borough Council

“As far as we are aware, none of the compromise agreements we have entered
into have sought to remove or restrict a person’s rights to make FOI or
subject access requests and we are doubtful a compromise agreement would
be effective in that respect in any event.”
Malvern Hills District Council

“In answer to your query, there have been no barriers placed in the way
of any of the individuals concerned in relation to their legal right of
access to information via any of the information access legislation.”
Harborough District Council

“I am not aware that there are conditions in any of these agreements restricting the right of an individual to approach the Council in future for information via Freedom of Information and/or Data Protection. Indeed I would query whether any such conditions would be binding. I have read the 1998 agreement and the two agreements in 2008. In none of those agreements is there anything to be found that would restrict the right of the individual (at a future date) to access information via either Freedom of Information and/or Data Protection. This is as to be expected.”South Ribble Borough Council

“I cannot imagine a situation whereby this or any other council would encourage a signatory to a compromise agreement to forgo their statutory rights regarding FOI / DPA furthermore if any authority tried to do this I suspect it would be both unenforceable as an agreement and ultra vires (not within the powers of the council and therefore potentially unlawful).  An individual has the right to access their own information via DPA or other information via FOI.” South Norfolk District Council


Site Meter