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: tinyurl.com/65ebm5o (Page 6)

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

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

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


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#FoI Request 005/11 ~ Cheshire West and Chester – Register of Senior Officers’ Personal Interests

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Senior Officers – a Requirement to Declare and Register Personal Interests

This request was updated by Cheshire West and Chester Council on 30th August, with some very good news.

My internal review has been upheld.  The council had failed to successfully apply a Section 22 exemption, as expected, and their desire to hold onto the information until October collapsed.  They have now offered to produce it within 35 days (October – lol).  As the scope was reduced significantly, I’ve asked for it within 14 days.

But, it’s not all over.  They are still claiming that it’s completely up to the council how the information is drawn up and that the ICO’s involvement in John Greenwood’s Bolton case, applied to Bolton alone.  The message they want to send out to the Cheshire public is that the ICO’s landmark decision on Bolton has no bearing upon what goes on in Cheshire (!)

I’ve reminded them of their public duties, and the requirement to operate accordingly, by applying checks and balances, and for elected members to scrutinise these areas on behalf of the local electorate.  Full democratic scrutiny of policies is an important area that they appear to have fallen down on in the past (see post regarding FoI / DPA ban).

So, despite the fact Cheshire West have agreed to publish (with redactions), they’re not yet putting out the full information – the details that the public want to see.  An appeal to the Information Commissioner is currently being drawn up.


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