#FoI request ~ Unscrutinised Machinations; Suspended Director of Law Departs Wirral Council

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17th October 2012

http://www.whatdotheyknow.com/request/unscrutinised_machinations_permi/new

See also this related blog post

Dear Wirral Metropolitan Borough Council,

On 17th October 2012, it became public knowledge that suspended
Director of Law, Bill Norman had received
permission, as part of a secret, protected and apparently
unscrutinised process, concealed from public
view, to leave his employment with Wirral Council. According to the
press, this is believed to follow an external investigation stating
that he had “no case to answer” and to involve the granting of a
package approaching £150,000 in public money.

http://www.wirralglobe.co.uk/news/999130…

Above is a link to a news story published today in the
Wirral Globe, which reported this matter. Once again, the comments
beneath the article indicate the strength of feeling amongst a
still outraged public.

The former CEO, Jim Wilkie, who himself is the subject of another
freedom of information request, currently breaching the FOI Act:

http://www.whatdotheyknow.com/request/ag

…admitted to years of learning disabled abuse by the council.
This was followed by the departure of two senior social services
officers in January of this year. It is still not clear whether
these two individuals WERE leaving as a result of their involvement
in abuse AND whether they signed compromise agreements with gagging
clauses. As of today, despite several assurances, Wirral have not
responded to the following FoI request and are many months overdue
and again in breach of the FOI Act:

http://www.whatdotheyknow.com/request/da

Despite the fine words trotted out in Appendix S2 of the Anna
Klonowski “Refresh and Renew” Supplementary Report, the Wirral
public have still yet to see any sign of accountability or a
reckoning towards the as yet anonymous employees who perpetrated
this sustained abuse against learning disabled people over a period
of several years – which totalled over £700,000 plundered from
their bank accounts.

There were also abuses of power, as found by two independent
investigations – but which remain unpunished, and an admission to
learning disabled abuse here (See 7.1):

http://democracy.wirral.gov.uk/mgConvert

Please provide all information you have which is connected to the
departure of Mr Norman. This will relate to meetings, hearings,
discussions, reports (including the report of Mr Richard Penn, the
external investigator), and may be stored in the form of recorded
minutes, verbatim and non-verbatim notes, emails, letters, memos,
aide memoirs, documents, whether electronically or manually stored.

Please confirm and provide full details of the existence of any
payments made to Mr Norman in relation to his departure. This will
include precise amounts, the method of payment and the budget from
which the payment was / is to be derived.

Please confirm details of the existence of any “compromise
agreement” or “confidentiality agreement” or “compromise
contract”or “confidentiality contract” agreed and signed by Mr
Norman in relation to this departure or to his involvement in
abuse or malpractice. This will include confirmation and
description of any ‘gagging clauses’ and whether a positive /
neutral / negative reference was provided regarding potential
future employment.

In light of the [strangely] recent discovery by Wirral’s NOW
EX-Chief Internal Auditor David Garry that “compromise contracts”
were NOT being recorded but were being arranged behind closed
doors, beyond any councillor scrutiny and beyond view of the
public:

http://democracy.wirral.gov.uk/documents

…please describe the exact process that was followed and supply the
documents, reports, aide memoirs, notes, etc. that were created and
recorded as part of the NEW process. Please take a deep breath
before you do this, and ponder your overriding duty to act not out
of self-interest, but fairly and impartially in the unbending
service of us the public.

Please provide the names and addresses of all organisations /
bodies involved in providing legal advice to Mr Norman. Please also
provide details of meetings which occurred including times, dates
and matters discussed.

Please confirm the details of any disciplinary charges either
planned or levelled against Mr Norman in relation to any failures /
malpractice / abuse which may or may not have brought about his
departure from the Council.

If Mr Norman was provided with a “clean bill of health” regarding
his time served at the council, please provide a copy of this /
these document(s).

Please redact documents as you see fit, and remove any personally
sensitive information in accordance with the requirements of the
Data Protection Act.”

Please be mindful that as Mr Norman was the “Director of Law” and
fulfilling that role, and paid / rewarded in line
with that role as part of these as yet secret arrangements, I am
making you aware that case law within this area, combined with the
legitimate and compelling public interest demands a far greater
degree of openness.

As yet, I can find no evidence either in the press or on the
Council website that this departure has received ANY democratic
scrutiny by elected officials. Please confirm which meetings took
place. Presumably there will have been at least one gathering
called to scrutinise the so-called “compromise contract” that was
drawn up and agreed.

Please also confirm whether the July suspension of Mr Norman and
his two colleagues was carried out correctly i.e. it followed to
the letter the guidance laid out within the Local Government Act
2000 and was mindful of the extra protection that is afforded to
Directors of Law and Finance.

If Mr Michael Frater, local gov troubleshooter [now departed] made
an error in suspending the two officers Norman and Coleman, and
this has “blown up in his face” and potentially caused a situation
in which we may find ourselves today i.e. shot in the foot;
compromised; picking up the pieces, and paying off officers who
have had their employment rights breached, then please confirm it
if true, and release all the documents which relate to it,

Yours faithfully,

Paul Cardin

18th October 2012

According to Principal Committees Officer Andrew Mossop, the relevant minutes were added to the website yesterday, almost a whole month after the Employment and Appointments (Compromise Contracts) meeting took place.

This relatively new committee was established in April 2012.  As we all know, mucho concealed machinations will have transpired before then.  Anyway…. drip, drip, drip….

http://democracy.wirral.gov.uk/ieListDocuments.aspx?CId=656&MId=4224&Ver=4

Pay-offs ~

David Garry’s breakdown

Total to the tax payer: £46,584.

People will wonder, “Why did the Chief Internal Auditor have to go?”  Is it anything to do with the HESPE Highways Contract awarded to COLAS, now lying in tatters?  Can it be related to the lack of audit oversight which was allowed to occur under Mr Garry’s watch?  Can it be connected to the perverse decision to award “3 stars” (whatever that means – sounds like an endorsement to me) to the whole rotten process?  Did David Garry receive a “clean bill of health” within his compromise agreement, intended to reassure any unwitting employers thinking of appointing him in the future, following this fiasco?  We need to know!

Bill Norman’s breakdown

Total to the tax payer: £151,416.

The reason given for the former Director of Law’s departure is “Redundancy/Severance payment”.  Presumably the post of “Director of Law” now lies redundant, obsolete; to be deleted from the staff structure…. or have I got this wrong?  Experience tells us such issues are approached differently on Wirral.  Will the position be given a new, fresher title…. one to key in with the positive spin, with the supporting machinations whipped into a frenzy, as the media machine churns onwards and “moves forward”.

Did anybody ever read and digest the Klonowski Supplementary Report ~ the absurdly titled “Refresh And Renew”, with its fine words promising accountability before the public?  Or does that and the full report sit on a shelf somewhere, unheeded, gathering dust ?

Sharp-eyed readers of the Council minutes will have spotted that the meeting called on 20th September 2012 was just one day prior to the reporting of the external investigator, Richard Penn, on 21st September 2012.  Which reminds us of the release of the two senior DASS oficers the day before the release of the full Klonowski report.  “Manipulation” and “massage” appear to be writ large not just through the minutes produced on the website, but in the actions and the exquisite timing of the actions of Wirral’s “inner ring”.

What kind of an organisation would draw up and present a compromise agreement the day before a crucial investigation finally reports its findings.  What kind of an organisation would allow a suspended employee to leave in the event that the investigation came up with “no case to answer” – which is precisely what transpired.  What the hell is going on here?

#FoI Request ~ Secret agreement allowing suspended Ian Coleman to leave Wirral Council

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5th October 2012

http://www.whatdotheyknow.com/request/secret_agreement_allowing_suspen

Dear Wirral Metropolitan Borough Council,

On 3rd October 2012, former Acting Chief Executive; former Finance
Director, and suspended senior officer Ian Coleman received
permission, as part of a protected process, concealed from public
view, to leave his employment with Wirral Council.  According to the
press, this is believed to involve the granting of an early
retirement package worth £82,000.

http://www.wirralglobe.co.uk/news/996522…

Above is a link to a news story published the next day in the
Wirral Globe, which reported this matter.  The comments beneath the
article also indicate the strength of feeling amongst an outraged
public.

The former CEO, Jim Wilkie, who himself is the subject of another
freedom of information request, currently breaching the FOI Act:

http://www.whatdotheyknow.com/request/ag…

…admitted to years of learning disabled abuse by the council.
This was followed by the departure of two senior social services
officers in January of this year.  It is still not clear whether
these two individuals WERE leaving as a result of their involvement
in abuse AND whether they signed compromise agreements with gagging
clauses.  As of today, despite several assurances, Wirral have not
responded to the following FoI request and are many months overdue
and again in breach of the FOI Act:

http://www.whatdotheyknow.com/request/da…

The Wirral public have still yet to see any sign of accountability
or a reckoning towards the as yet anonymous employees who
perpetrated this sustained abuse against learning disabled people
over a period of several years.

There were also abuses of power, as found by two independent
investigations – but which remain unpunished. Admission to learning
disabled abuse here (See 7.1):

http://democracy.wirral.gov.uk/mgConvert…

Please provide all information you have which is connected to the
departure of Mr Coleman.  This will relate to meetings, hearings,
discussions, reports, and may be stored in the form of recorded
minutes, verbatim and non-verbatim notes, emails, letters, memos,
aide memoirs, documents, whether electronically or manually stored.

Please confirm and provide details of the existence of any payments
made to Mr Coleman in relation to his departure.  This will indicate
which position / role he was fulfilling and the total amount(s) of
final salary pension monies released attached to that role.  This
will include precise amounts, the method of payment and the budget
from which the payment was / is to be derived.

Please confirm details of the existence of any “compromise
agreement” or “confidentiality agreement” or “compromise contract”
or “confidentiality contract” agreed and signed by Mr Coleman in
relation to this departure or to his involvement in abuse or
malpractice.  This will include confirmation and description of any
‘gagging clauses’ and whether a positive / neutral / negative
reference was provided regarding potential future employment.

In light of the [strangely] recent discovery by Wirral’s Chief
Internal Auditor David Garry that “compromise contracts” were NOT
being recorded but were being arranged behind closed doors, beyond
any councillor scrutiny and beyond view of the public:

http://democracy.wirral.gov.uk/documents…

…please describe the exact process that was followed and supply the
documents, reports, aide memoirs, notes, etc. that were created and
recorded as part of the NEW process.  Please take a deep breath
before you do this, and ponder your overriding duty to act not out
of self-interest, but fairly and impartially in the unbending
service of us the public.

Please provide the names and addresses of all organisations /
bodies involved in providing legal advice to Mr Coleman. Please
also provide details of meetings which occurred including times,
dates and matters discussed.
Please confirm the details of any disciplinary charges either
planned or levelled against Mr Coleman in relation to any failures
/ malpractice / abuse which may or may not have brought about his
departure from the Council.

If Mr Coleman was provided with a “clean bill of health” regarding
his time served at the council, please provide a copy of this /
these document(s).

Please redact documents as you see fit, and remove any personally
sensitive information in accordance with the requirements of the
Data Protection Act.”

Please be mindful that if Mr Coleman was the “Acting Chief
Executive” and fulfilling that role, and paid / rewarded in line
with that role as part of this secret agreement, I am making you
aware that case law within this area, combined with the legitimate
and compelling public interest demands a far greater degree of
openness,

Yours faithfully,

Paul Cardin

6th October 2012

This is probably covered by the above, but just to be certain, I’ve added the following:

Dear Wirral Metropolitan Borough Council,

Further to the publicised £82,000 figure, please include the total
amounts of any additional severance payments, the existence of
which may not have been referred to within the publicity material
released by Wirral Council.

Indeed this figure may be calculated subsequent to 3rd October
2012. Please look for it, and if found, supply it.

Given the ongoing climate of ongoing scandal on Wirral, the public
interest is building very quickly on this important case, and I
believe it will need to be satisfied with early answers,

Yours faithfully,

Paul Cardin

Response in from FoI section at Wirral:

From: InfoMgr, FinDMT
Wirral Metropolitan Borough Council
2 November 2012

Good Morning

Thank you for your request below, Wirral Council can confirm there were no
additional payments.  Please see link where the report has been published
on our web site.

[1]http://democracy.wirral.gov.uk/ieListDoc…

Thank you for your enquiry, kind regards

Kind regards

Tracy O’Hare

Information Management

Wirral Council

And then, three days later:

From: InfoMgr, FinDMT
Wirral Metropolitan Borough Council
5 November 2012

Good Morning

Thank you for your request below, Wirral Council can confirm this is
information held with a view to publication at a future date and considers
this information exempt from disclosure under section 22 FOIA 2000 as
information that the authority is intending to publish at a future date

You have the right under Section 17 of the Freedom of Information Act 2000
to ask for an internal review of the refusal of the information
requested.  Please would you direct any request for an internal review to
Mr Michael Rowan, Legal and Member Services, Department of Law, HR and
Asset Management, Town Hall, Brighton Street, Wallasey, CH44 8ED
You do also have the right to complain to the information Commissioner, if
you are dissatisfied with the outcome of any internal review, whose office
is situated at:

Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire SK9 5AF
Tel: 08456 30 60 60 or 01625 54 57 45
Fax: 01625 524510  www.ico.gov.uk <[1]http://www.ico.gov.uk/>

Thank you for your enquiry, kind regards

Tracy O’Hare
Information Management
Wirral Council

My response:

From: Paul Cardin
5 November 2012

Dear InfoMgr, FinDMT,

I have requested a diverse range of information and now seek some
further clarification.

In order for me to proceed, please re-read my original request and
respond more precisely on the nature of the information which you
have a settled intention to publish to the general public in the
future.

OR… confirm the following:

o Apart from the existence of ‘additional payments’, which was
previously dealt with, the authority is engaging a Section 22
exemption on the remaining full range of diverse information which
I have requested.

Once I have your response, which I hope arrives this week, I will
consider whether to request an internal review or not,

Yours sincerely,

Paul Cardin

I am asking the council to list the information which it is going to publish.  I asked for a varied spread of info.  They’d come back and told me there weren’t any additional payments, so is it now going to publish everything else I asked for at a later date?  Does the Section 22 exemption used here cover everything else?  If not, then the exemption is NOT engaged and will fail.

UPDATE   6th December 2012

As they hadn’t responded, I prodded them as follows:

From: Paul Cardin
6 December 2012

Dear Wirral Metropolitan Borough Council,

Please pass this on to the person who conducts Freedom of
Information reviews.

I am writing to request an internal review of Wirral Metropolitan
Borough Council’s handling of my FOI request ‘Secret Agreement
allowing suspended Acting CEO to depart Wirral Council’.

You appear to have ignored my email, sent on 5th November, which
read as follows:

From: Paul Cardin

5 November 2012

Dear InfoMgr, FinDMT,

I have requested a diverse range of information and now seek some
further clarification.

In order for me to proceed, please re-read my original request and
respond more precisely on the nature of the information which you
have a settled intention to publish to the general public in the
future.

OR… confirm the following:

o Apart from the existence of ‘additional payments’, which was
previously dealt with, the authority is engaging a Section 22
exemption on the remaining full range of diverse information which
I have requested.

Once I have your response, which I hope arrives this week, I will
consider whether to request an internal review or not,

Yours sincerely,

I gave you the opportunity to clarify, but my reply DID NOT arrive
that week and I am still waiting for a response.

Please take the above into account and carry out the internal
review according to the FOIA i.e. within 20 working days, or within
40 working days if there are exceptional circumstances,

A full history of my FOI request and all correspondence is
available on the Internet at this address:
http://www.whatdotheyknow.com/request/se…

Yours faithfully,

Paul Cardin

They responded today, failed to clarify, as requested and referred me back to their response of 5th November, ignoring my request for an internal review.  I rang them up and told them they were in breach of the law if they failed to acknowledge it and didn’t act on it within 20 working days (40 working days in exceptional circumstances).

So they sent the following:

From: InfoMgr, FinDMT
Wirral Metropolitan Borough Council
6 December 2012

Good Afternoon

Wirral Council acknowledges your request for an internal review; this has
been passed to the department of Law HR and asset management.

Thank you for your correspondence, kind regards.

Tracy O’Hare

Information Management

Wirral Council

And so, ushered in is the next period of silence.  How long it lasts is anybody’s guess.

As far as publication of the information goes, ‘at a future date’ is the assurance.

See you next year?
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FoI / DP Gagging clauses – Did the Information Commissioner use them in its own compromise agreements?

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Full marks to this FoI requester – for using WhatDoTheyKnow to take a thorny issue to the heart of the ICO – the UK regulating body, overseeing information and data.  On the surface, this request may seem cheeky / provocative / frivolous, but far from it…. the Information Commissioner, whilst stating last year that public bodies would most likely be in breach of the Act, should an FoI request be made by a ‘banned’ ex-employee, has recently admitted that it has no power to prevent public bodies opting out of their obligations under the FOI Act by including gagging clauses in compromise agreements.  So questions like this should be expected.  But just LOOK at the standard of response it received.

The request goes as follows:

Dear Information Commissioner’s Office,

How many compromise agreements, or similar settlements for people
who have resigned from the Information Commissioner’s Office have
been signed in each of the past ten years, including this one?

For any agreement signed, did it include any provision for the
individual to agree not to make FOI and DP requests, or to
correspond with the ICO?

How many allegations of unfair dismissal have been made against the
ICO in each of the past ten years, including this one?

Yours faithfully,

The ICO response came within the required 20 working days (you’d hope so given this is the regulator) – but despite this, it can only be described as “sloppy”.  They’re at pains to say there’s a whole lot of  ‘considering’ going on, but there’s very little of the much-trumpeted and much-hoped-for ‘openness and transparency’:

The number of compromise agreements and allegations of unfair dismissal
broken down in to each year is exempt under Section 40(2) by virtue of
Section 40(3)(a)(i) of the Freedom of Information Act 2000.  This section
of the Act allows a public authority, such as the ICO, to withhold
information in response to a request under FOIA when the information being
requested is the personal data relating to someone other than the
requester and where its disclosure would contravene one of the Data
Protection Principles.

We consider that because of the small number of compromise agreements and
allegations of unfair dismissal in each year it would be possible to
identify the person or ex employee of the Commissioner.  Therefore, this
would be the personal data of each of those individuals.  In these
circumstances there would be no reasonable expectation of those
individuals that these details would be made public and released in
response to such a request, and in some cases a further degree of
confidentiality was provided.  To release this personal data broken down
into years would therefore be unfair and in breach of the first data
protection principle which states that – Personal data shall be processed
fairly and lawfully…

I can however confirm that in the last ten years there have been nine
compromise agreements or other settlements and two allegations of unfair
dismissal.

We also consider that the details of, or provisions within, those
individual agreements is exempt information under Section 40(2) of FOIA
for the reasons detailed above.

I hope this information is of some interest and assistance.

OK, the unwillingness to risk identifying recipients of compromise agreements due to the small numbers involved sounds reasonable on the surface, but eagle-eyed readers will have spotted pretty much immediately that the ICO, the regulator of all things data and information has failed to respond to the WHOLE question.

Here was a pretty unambiguous request for details of FOI / DP related “provisions” (gagging clauses aimed at preventing the recipients of compromise agreements exercising their statutory information and data querying rights) which the requester made reference to in his initial query – “did it include any provision for the individual to agree not to make FOI and DP requests, or to correspond with the ICO?”

As is his right, the requester then came back with a request for an internal review to be undertaken by a senior officer:

I would like to request an internal review on the following basis.

I do not believe that it would be possible for an individual to be
identified purely because you confirmed that, for example, “there
was one compromise agreement signed in 2006″.

I would also like a review on the issue of whether any agreement
include provision not to make FOI / DP requests. Given that the
Information Commissioner is the FOI / DP regulator, I believe that
anyone signing such an agreement would have a reasonable
expectation that this information might be made public. However, I
also do not believe that it is possible to maintain your position
that the information is not disclosable in the format you used to
respond. In confirming that there have been nine agreements or
other settlements, I do not believe that there would be any
possibility of identification if you confirmed that any or all of
the agreements included a provision not to make FOI or DP requests.

Yours faithfully,

Spot on.  The justification given for not releasing the numbers of compromise agreements was NOT explained very well and the reasons given were sparse.  It’s not surprising that the requester wasn’t happy.  As for the FoI / DP gagging clauses, I’m more inclined to believe the regulator either missed the point or deliberately didn’t address it, rather than failed to mention it because it could have identified individuals.

Eventually, on 23rd November, what can only be described as a ‘partial climb-down’ came through the ether:

Dear …….

Case Reference Number IRQ 0421243

I refer to your email of 3 November 2011 asking for an internal review of our decision on your FOI request to us of 19 October 2011.  I have now had an opportunity to discuss the basis for our original decision with my colleague Charlotte Powell and to carry out the review you have requested.  We now believe that there is some additional information that we can provide you with.

So far as compromise agreements or similar settlements are concerned the main difficulty for us is in identifying those years in which there were no such agreements.  This would disclose personal data about all those who left the ICO’s employment during the year in question, by telling you, with absolute certainty, that more of them benefited from a compromise agreement or similar settlement.  However, provided that we do not distinguish between those years in which there were no agreements and those years in which there was only one, we consider that we can disclose the information requested without breaching the Data Protection Act. 

We are therefore able to disclose the following to you:

YEAR No. OF COMPROMISE AGREEMENTS OR OTHER SETTLEMENTS UNFAIR DISMISSAL CLAIMS
2011/1210/1109/1008/0907/0806/07

05/06

04/05

03/04

02/03

230/10/10/10/1

0/1

2

0/1

0/1

0/10/10/10/10/10/1

0/1

0/1

0/1

0/1

 So far as the question of whether any agreement includes provision not to make DP/FOI requests is concerned a similar consideration applies.  If we were to openly disclose that none of the agreements contains such a provision this would tell anyone who might already know that a particular person has benefited from such an agreement something about that agreement and hence disclose personal data about that person.  However, on reflection we do not consider that, in this case, there could be any meaningful breach of the Data Protection Act given that it is so improbable that we, as the information rights regulator, would ask someone to agree to a term signing away the very rights we are seeking to uphold. Indeed it is a little disappointing that you feel the need to even ask this question of us.  However I can confirm that no such term has been, nor would be, included in any compromise agreement or other settlement between a former member of staff and the ICO.

I hope this provides you with the information you are seeking.  If you remain dissatisfied you have the right, under section 50 of FOIA to apply to the Information Commissioner for a decision as to whether your request has been dealt with in accordance with the Act.  If you make such an application it will be considered independently of your original request and this review.

Yours sincerely

David Smith 

Deputy Commissioner

When you consider this response came from the Deputy Commissioner himself, it’s pretty startling to read “……. Indeed it is a little disappointing that you feel the need to even ask this question of us.

It’s worrying to think that the Deputy Commissioner is on the defensive, acting all affronted and has to be dragged protesting over the need to address probing questions, especially given that his  own organisation now appears to have been sidelined by clever lawyers in this area.  A number of  ‘publicly accountable’ organisations are pouring council tax or central government money hand over fist into insidious devices aimed at blocking the free flow of information; or actively circumventing their own stated obligations as public data controllers under both Acts.

But why would they seek to do this?  Because when they’re caught red-handed breaking the law or up to their collective necks in deceit, or immoral behaviour, the last thing they want is somebody they regard as a ‘troublemaker’ using the statutory provisions within the FoI or DP Acts to expose their deplorable conduct.

So, riding in on a white charger come compromise agreements (see Glenn Mulcaire and #Leveson) – a legal option available to them, backed by the Law Society, the Local Government Association, by unions and by central government.  These agreements (and the gagging clauses within them) are a cornerstone of reputation management, which sweeps (and conceals) all before it.


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