Compromise Agreements ~ Their Impact on Equal Pay Claims

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A landmark judgment was announced recently by the UK Supreme Court, allowing equal pay claims to be brought in the Civil Courts, where in the past the only route was through the Employment Tribunal:

http://www.guardian.co.uk/commentisfree/2012/oct/25/victory-birmingham-equal-pay?newsfeed=true

A key factor in this decision is the differing timescales or eligibility periods between the Employment Tribunal and the Civil Court processes.  In the past, Equal Pay claims would time out after six months of leaving employment – a constraining factor which had always played into the hands of the employer.  However, the civil courts allow a greater and far more reasonable 6 year period of opportunity – vital when preparing more complex cases, or in allowing employees who may be unaware that they have suffered through unequal pay, more time to discover the facts and take up legal support in order to prepare a case.

The above link refers to a number of determined female employees, 170 in total, who had worked for Birmingham City Council, and who brought their cases to the High Court against a background of double-dip recession, austerity and central government cuts, in a climate where many large council employers were busy cheaply shedding posts across a number of years.

Many councils, including Cheshire West and Chester for example, have been encouraging employees either made jobless, taking voluntary redundancy or early severance / retirement, to consider taking small financial settlements and sign compromise agreements.  These are legal documents which take the form of full and final settlements.  They’re written up ostensibly in order to give a “clean break”, but motivated by self-interest as they encourage the ex-employee to enter a binding contract to waive any legal claims against their former employer in the future.

Compromise agreements are powerful and pretty much all-encompassing instruments.  The only legal avenue which cannot be closed off in this manner is that of personal injury claims.  Each compromise agreement will usually cost the employer around £250 to draw up and process.  This cost will rise if the employer seeks to include gagging clauses, preventing the employee from talking about details of the contract or even the contract itself.  To make the document lawful and above board, employees, as signatories to the document, will need to access and receive legal advice as part of their exit procedure.

In January 2011, exercising my statutory Freedom of Information rights, I conducted research encompassing 345 English councils.

http://www.easyvirtualassistance.co.uk/page12.html

I asked these councils to provide details for the number of compromise agreements they had processed during the previous 6 years.  This was restricted to those drawn up in circumstances of dispute, such as grievances, investigations and whistleblowing cases.  If I’d requested ALL agreements, including those drawn up in redundancy situations or equal pay claims, it’s highly unlikely the councils would have been in a position, due to the sheer numbers involved, to provide the information without going above the £450 costs limit.  This is a provision within the Freedom of Information Act 2000 which takes into account an organisation’s resources / workload and is given to data controllers as one of the exemptions under which information which is held does not have to be released.

Some councils responded instantly, generally the smaller, well-run ones.  Many more took a few weeks to reply, but did respond within the 20 working days that the Act allows them.

To receive all the answers took many months, but eventually, following numerous internal reviews and 55 appeals to the Information Commissioner’s Office, I finally had answers from all 345 councils.  The last one to respond was my own council, the Metropolitan Borough of Wirral – an organisation which has been mired in scandal upon scandal, a very small portion of which is covered elsewhere on this blog.

In total, there were approaching 300 English councils who responded and provided figures, mostly for a period of 6 years, between 2005 and 2011.  Around 50 of them gave varying reasons for not responding, and engaged various exemptions within the Act, usually the costs exemption, claiming that the act of going through their records and providing the data would cost more than £450.  Others claimed that releasing the data would be an infringement on the ex-employees’ personal privacy.  I appealed many times with the Information Commissioner, but ultimately, only 22 appeals were successful in overturning the councils’ decision not to comply.

The total number of compromise agreements drawn up in circumstances of dispute, grievance, investigation and whistleblowing was 4,410 or an average of 15 per council.  Applying estimated costs of £350 per agreement (as such agreements are very likely to contain one or more gagging clauses), this works out to a total of £1,543,500.

The use of such agreements followed a trend which has been rising exponentially over the last 6 years.  One could reasonably speculate that council employers will be tempted to make even greater use of these agreements in equal pay and redundancy situations.

The graph above indicates steady growth in the use of compromise agreements in dispute circumstances over the last 6 years. 2010 figures were still working through, and with 55 requests refused, the adjusted figure may eventually fall into line with the rising historical trend.

Should compromise agreements as full and final settlements still be regarded as valid following the recent Supreme Court judgment – and there’s no reason to conclude that they won’t be – what a wise and profitable move it will have been for the employers who issued them.

However, what’s good for employers is not usually good for their staff…. or indeed their former staff.

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#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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UPDATED – Analysis of 14 Freedom of Information requests to Wirral Council – verdict is not good…

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I don’t profess to be an expert where Data & Information Governance are concerned.  I have a layman’s self-taught appreciation of FOIA and DPA.  Experts will find fault in the following analysis, but I hope I’ve covered the basics adequately.  As time goes on, I will update the times and insert more context and background information on each request.

14 x FoI requests to Wirral Council – 2011 to present day

The majority of these requests (10) contain multiple breaches of Statutory Law.

1.     http://www.whatdotheyknow.com/request/meeting_between_party_leaders_an#outgoing-220406

Summary: Requesting information around important initial meeting held between Anna Klonowski and all Wirral party leaders.

Date of request:     12th Oct 2011

Age of request in working days:      315 and counting

Response within 20 working days: reply on Day 20

Internal review requested:      9th Nov 2011

Working days for internal review to report:     281 and counting (breach of Statutory Law)

Request completed: NO

Note: Amid a background of proven malpractice, bullying and the targetting and disposal of a whistleblower, along with serious failures in governance, the council press office notified the Liverpool Echo to advise them of this meeting.  In response to this FoI request, Wirral described it as “an informal gathering that didn’t require minuting”.  Whereas the Liverpool Echo headline had screamed: “Wirral Council Leadership Hangs in the Balance”.  After 315 woring days, I still await a measured and reasoned response.

I still await an internal review, originally requested over a YEAR ago.

2.     http://www.whatdotheyknow.com/request/dass_recent_departure_of_two_sen#comment-30487

Summary: Requesting information around two ex DASS senior officers, gagged, paid off, allowed to leave, but never disciplined.

Date of request:     11th Jan 2012

Age of request in working days:      233

Answered within 20 working days: reply on Day 21 (breach of Statutory Law)

Appealed with ICO:      13th Apr 2012 

Working days for council to respond:     169 (breach of Statutory Law)

Decision notice:     Published

Request completed: FS50438500 – Click to read ICO Decision Notice

Rosemary Lyon requested a 14 day extension.  Surjit Tour requested a 7 day extension.  Both granted.  Both deadlines missed.

I’m currently waiting for the ICO to publish the Decision Notice on this.  It’s been presented to me by the ICO as a “complex” decision.  I regarded it as a pretty straightforward case of failure to discipline officers and the enablement of future abuse.

UPDATE   December 2012

The decision notice is now in.  The ICO appear to regard ‘personal privacy’ as more worthy of its attention than a dangerous threat to the wellbeing of learning disabled people.  But the least said about that the better.  The decision is being appealed to the First Tier (Information Rights) Tribunal.

3.     http://www.whatdotheyknow.com/request/senior_officers_requirement_to_d#comment-29981

Summary: Requesting information on Senior Officers’ register of declared interests.

Date of request:     20th Jun 2011

Age of request in working days:      344

Answered within 20 working days: reply on Day 27 (breach of Statutory Law)

Internal review requested:      13th Aug 2011

Working days for council to respond:   Internal Review  not carried out (breach of Statutory Law)

Request completed: NO

Appealed with ICO:     15th July 2012

Decision notice:     Published

ICO reference No.     FS50416628 (Click to read ICO Decision Notice)

Contempt of Court proceedings are potentially about to be issued, depending upon the response I receive to the following email, sent this evening:

From: Paul C
Sent: 04 September 2012 21:15
To: ‘casework@ico.gsi.gov.uk’
Subject: Freedom of information request re: Wirral Council Register of Senior Officers’ interests FS50416628

FAO [Senior Case Officer’s name redacted]

Dear [Senior Case Officer’s name redacted],

Further to the Decision Notice you issued to Wirral Council dated 13th August 2012, 35 calendar days have now expired, but I have not received any contact from Wirral Council specifying to me whether it holds further information which falls within the scope of my request as required by Section 1(1)(a) of the Act.

Neither have I received any further information contingent upon the Council’s consideration of any further information it holds for disclosure to me, the complainant, as required by section 1(1)(b) of the Act.

Neither have I had any indication that the Council has considered any information which it does hold for disclosure bearing in mind the First Tier Tribunal’s decision in the case of Greenwood v ICO (EA/2011/0131 & 0137).

I therefore request that you take this case to the next stage and also update me with the details of any action that you are taking,

Best regards,

Paul Cardin

11th October 2012

After 16 months, Wirral Council has finally and reluctantly provided some information on the declared interests of 26 x Senior Officers.  Given that Wirral are making frequent claims to a newly emerging climate of transparency and openness, I have no idea why it took them so long.  I haven’t yet checked whether the list is complete and includes all of the council’s officers above the pay level of £58,200  (a stipulation made at the Information Tribunal in the case of Greenwood v ICO (EA/2011/0131 & 0137), but will be doing so in the near future.

Here’s a link to the blog post specifically covering this and holding links to all the information that Wirral Council supplied.

The Council have now provided information, however it was provided piecemeal, over several days, in shoddily presented documents, and has not come up to standard.  I have now asked the ICO to consider issuing an Enforcement Notice.

The ICO, true to form, has backed the Council.  However I’m querying why they’ve allowed the Council to claim a Section 40(2) exemption on an obvious conflict of interest – which patently cannot  represent personal data in any shape or form.

4.     http://www.whatdotheyknow.com/request/copy_of_letter_published_on_webs#outgoing-216044

Summary: Requesting copy of a letter published on Council website “mistakenly” identifying Highways Contract whistleblower.

Date of request:     11th Jul 2012

Age of request in working days:      120 and counting

Answered within 20 working days:      no answer (breach of Statutory Law)

Internal review requested:      11th Aug 2012

Working days for council to respond:     89 (breach of Statutory Law)

Request completed: NO

Appealed with ICO:     6th October 2012

5.     http://www.whatdotheyknow.com/request/helpline_regarding_illegal_delay#outgoing-216036

Summary: Requesting information on results of a helpline set up following exposure of a hidden, illegal 4 week delay on care packages.

Date of request:     8th May 2012

Age of request in working days:      112

Answered within 20 working days:      reply on Day 66 (breach of Statutory Law)

Internal review requested:      6th July 2012

Working days for council to respond:     112 (breach of Statutory Law)

Request completed: NO (currently considering appeal to ICO)

Appealed with ICO:     Reply received from Wirral Council on 10th October 2012

Please see the following blog post for comment and analysis of the information received:

https://easyvirtualassistance.wordpress.com/2012/10/11/wirral-councils-unlawful-implementation-of-a-4-week-delay-on-social-care-packages/

6.     http://www.whatdotheyknow.com/request/agreed_departure_of_chief_execut#comment-29785

Summary: Request for information regarding the departure of CEO Jim Wilkie, again shrouded in secrecy, possibly gagged, paid off.

Date of request:     7th Jun 2012

Age of request in working days:      144 and counting

Answered within 20 working days:      no answer (breach of Statutory Law)

Internal review requested:      6th July 2012

Working days for council to respond:     no answer (breach of Statutory Law)

Request completed: NO

Appealed with ICO:     5th October 2012

7.     http://www.whatdotheyknow.com/request/consultant_anna_klonowski_declar#outgoing-210386

Summary: Request for information around Anna Klonowski’s declarations / costs / nature of association with Wirral Council.

Date of request:     12th May 2012

Age of request in working days:      162 and counting

Answered within 20 working days:      no answer (breach of Statutory Law)

Internal review requested:      11th July 2012

Days taken for council to respond:     no answer (breach of Statutory Law)

Request completed: NO

Appealed with ICO:     6th October 2012

8.     http://www.whatdotheyknow.com/request/suspension_of_director_david_gre#incoming-286811

Summary:     Requesting information relating to the procedure of suspending a Director and the potential consequences.

Date of request:     2nd May 2012

Age of request in working days:      170 and counting

Answered within 20 working days:      no answer (breach of Statutory Law)

Internal review requested:      4th September 2012

Days taken for council to respond:     no answer (breach of Statutory Law)

Request completed: NO

Appealed with ICO:     6th October 2012

9.     http://www.whatdotheyknow.com/request/out_of_hours_monitoring_of_stree#incoming-286806

Summary:     Requesting information on street lighting night-time scouting rounds; areas; frequency; responsible contractor, etc.

Date of request:     5th May 2012

Age of request in working days:      36 (completion time)

Answered within 20 working days:      reply on Day 23 (breach of Statutory Law)

Internal review requested:      N/A

Days taken for council to respond:     N/A

Request completed: YES

Appealed with ICO:     N/A

10.     http://www.whatdotheyknow.com/request/request_for_copies_of_correspond_2#outgoing-199397

Summary:     Requesting copies of corresondence between Council & DLA Piper UK LLP – law firm assigned work within AKA report

Date of request:     4th Feb 2012

Age of request in working days:      179 and counting

Answered within 20 working days:      no answer (breach of Statutory Law)

Internal review requested:      6th March 2012

Days taken for council to respond:     no answer (breach of Statutory Law)

Request completed: NO

Appealed with ICO:     21st April 2012

11.     http://www.whatdotheyknow.com/request/stephen_maddox_former_chief_exec#comment-26245

Summary:     Requesting information relating to early departure of former CEO Steve Maddox; payments, correspondence, etc.

Date of request:     3rd January 2011

Age of request in working days:      296 (Completion time)

Answered within 20 working days:      reply on Day 31 (breach of Statutory Law)

Internal review requested:      26th April 2011

Days taken for council to respond:     no answer (breach of Statutory Law)

Request completed: YES

Appealed with ICO:     26th July 2011

ICO Reference No.       FS50406724 – Click to read Decision Notice

Ultimately, although this took well over a year, the ICO made the council produce the following report:

http://www.whatdotheyknow.com/request/56617/response/256393/attach/html/3/ER.pdf.html

12.     http://www.whatdotheyknow.com/request/letters_sent_to_abused_learning#comment-23443

Summary:     Requesting copy of reimbursement letter to abused tenants of three supported living establishments in Moreton, Wirral

Date of request:     29th Oct 2011

Age of request in working days:      18 (completion time)

Answered within 20 working days:      reply on Day 18

Internal review requested:      N/A

Days taken for council to respond:     N/A

Request completed: YES

Appealed with ICO:     N/A

13.     http://www.whatdotheyknow.com/request/total_figures_for_referrals_to_p#incoming-206071

Summary:     Requesting information on how many times the Council had been referred to the Press Complaints Commission.

Date of request:     23rd Aug 2011

Age of request in working days:      7 (completion time)

Answered within 20 working days:      reply on Day 7

Internal review requested:      N/A

Days taken for council to respond:     N/A

Request completed: Yes

Appealed with ICO:     N/A

14.     http://www.whatdotheyknow.com/request/total_annual_figures_for_comprom_18#comment-19204

Summary: Requesting information on how many compromise agreements / gagging clauses issued by the Council in the last 6 years.

Date of request:     1st Jan 2011

Age of request in working days:      216 (completion time)

Answered within 20 working days:      reply on Day 64 (breach of Statutory Law)

Internal review requested:      31st March 2011

Days taken for council to respond:     40 (breach of Statutory Law)

Request completed: YES

Appealed with ICO:     Yes.  The Council eventually sent the information after a total of 216 working days.

Appealed with ICO:     N/A

The following spreadsheet, covering the above 14 FoI requests is provided to assist the reader in comparing the appalling average response times displayed here with those given in this cynical report, issued by Wirral Council dated 6th September 2012.

The average waiting time on these requests is 26 weeks / six months / half a year.  It seems the awkward and potentially “sensitive” nature of these requests has had an impact.  A subject like “Street Lighting night-time scouting rounds” has been a whole lot easier to deal with than  “pay offs and gags for senior officers, suspected to be involved in learning disabled abuse and disability discrimination”.

Click on the links in Column 1 to view associated press articles.

Subject Date Time Time Completed Links
summary originally Waited Waited
lodged (working (expressed
days) in weeks)
Info around important initial meeting held between Anna Klonowski and all Wirral party leaders. 12/10/2011   248   49   No   1.     http://www.whatdotheyknow.com/request/meeting_between_party_leaders_an#outgoing-220406
Info around two ex DASS senior officers, gagged, paid off, allowed to leave, but never disciplined. 11/01/2012   183   36   No   2.     http://www.whatdotheyknow.com/request/dass_recent_departure_of_two_sen#comment-30487
Info on Senior Officers’ register of declared interests. 20/06/2011   330   65   No   3.     http://www.whatdotheyknow.com/request/senior_officers_requirement_to_d#comment-29981
Copy of letter published on Council website “mistakenly” identifying Highways Contract whistleblower. 11/07/2012   53   10   No   4.     http://www.whatdotheyknow.com/request/copy_of_letter_published_on_webs#outgoing-216044
Info on results of helpline set up following exposure of hidden illegal 4 week delay on care packages. 08/05/2012   99   19   No   5.     http://www.whatdotheyknow.com/request/helpline_regarding_illegal_delay#outgoing-216036
Info regarding the departure of CEO Jim Wilkie. 07/06/2012   77   15   No   6.     http://www.whatdotheyknow.com/request/agreed_departure_of_chief_execut#comment-29785
Info around Anna Klonowski’s declarations / costs / nature of association with Wirral Council. 12/05/2012   95   18   No   7.     http://www.whatdotheyknow.com/request/consultant_anna_klonowski_declar#outgoing-210386
Info relating to the procedure of suspending a Director and the potential consequences. 02/05/2012   103   20   No   8.     http://www.whatdotheyknow.com/request/suspension_of_director_david_gre#incoming-286811
Info on street lighting night-time scouting rounds; areas; frequency; responsible contractor, etc. 05/05/2012   23   4.6   Yes   9.     http://www.whatdotheyknow.com/request/out_of_hours_monitoring_of_stree#incoming-286806
Copies of correspondence between Council & DLA Piper UK LLP – law firm assigned AKA report work. 04/02/2012   165   32   No   10.     http://www.whatdotheyknow.com/request/request_for_copies_of_correspond_2#outgoing-199397
Info relating to early departure of former CEO Steve Maddox; payments, correspondence, etc. 03/01/2011   296   59.2   Yes   11.     http://www.whatdotheyknow.com/request/stephen_maddox_former_chief_exec#comment-26245
Copy of reimbursement letter to abused tenants of three supported living establishments. 29/10/2011   18   3.6   Yes   12.     http://www.whatdotheyknow.com/request/letters_sent_to_abused_learning#comment-23443
Info on how many times the Council had been referred to the Press Complaints Commission. 23/08/2011   7   1.4   Yes   13.     http://www.whatdotheyknow.com/request/total_figures_for_referrals_to_p#incoming-206071
Info on how many compromise agreements / gagging clauses issued by the Council in the last 6 years. 01/01/2011   216   43.2   Yes   14.     http://www.whatdotheyknow.com/request/total_annual_figures_for_comprom_18#comment-19204
           
Average 136 27 5 completed
waiting times days weeks 9 outstanding

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

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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


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#FoI request 003/11 ~ Suffolk County Council – Departure of former Chief Executive Andrea Hill – Matters arising

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Departure of former Chief Executive Andrea Hill – Matters arising

Following the above FoI request (003/11) I lodged on 4th July 2011, an answer arrived on 9th August.  Andy Bloxham of The Daily Telegraph reported yesterday evening on the history surrounding this and the vast amount of public money handed over to secure the release of the controversial former chief.  The grand total is a staggering £347,768.  This is not far off the £405,000 that was paid during her tenure in a 4 month period this year, when 13 presumably unhappy staff left the authority, signing compromise agreements.

Andrea Hill is a great believer in these agreements, so much so she signed one herself.  See former felon Glenn Mulcaire, News International, and witness the power in 21st century Britain for these agreements to safely draw a legal veil across a sweeping gamut of potential criminal conduct, malpractice, malfeasance in public office, morally bankrupt behaviour, bullying, harassment, victimisation and so on.  I believe there will be gagging / penalty clauses drawn up into the Andrea Hill agreement, but she is not willing to reveal them – her consent to disclosure was not provided.

Still, I imagine a collective and shuddering sigh of relief will have been released, not only by embarrassed, shame-faced councillors and rejoicing senior colleagues, but by browbeaten junior council staff, and the beleagured Suffolk public.

It will be fascinating to see where (and if) Andrea turns up next, given the recent scandal-prone track record.  The former chief’s propensity for courting controversy, flirting with disaster and lavishing public money on photo-sessions and lifestyle coaches may not easily attract or win over the hearts and minds of future employers.

Suffolk Council appear tight-lipped, and have refused to reveal the information requested in question 2 below, quoting Section 40 (Personal Information) and Section 42 (Legal Professional Privilege) exemptions:

1. Did Andrea Hill sign a compromise agreement (confidentiality agreement) in full and final settlement of her employment contract at the council? (Answer: Yes)
2. If the answer to q1. is in the affirmative, details of any and all gagging clauses and penalty clauses contained within this agreement

The reply states, “… consent to disclosure was not provided.  Further, the nature and content of the information were key factors in contributing to the argument in favour of withholding the information.”  No public interest test is required under a Section 40 exemption.

As for Section 42, the exemption is qualified and does carry a public interest test.  The Council states, “there will need to be strong public interest in disclosure to offset the inevitable strong public interest in favour of the exemption.” (!)

Given the huge level of interest in this case, whipped up by the behaviour of the Chief Executive herself, the suicide of a close senior colleague, the circumstances surrounding the appointment of Wragge & Co. Solicitors to investigate, and by the apparent inability of the council to stem the flow of haemorrhaging public funds, there appears to be a VERY strong interest in full disclosure here – not just locally, but nationally.

Try as I might though, I can’t personally detect any evidence of the council’s quoted “strong public interest in favour of the exemption” – can you?!

Please check back here for updates on the internal review I’ve requested, which is currently underway.


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Simon Goacher to depart #QuackCWaC Council – simpering leaked email doing the rounds

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10th December 2012

Word reaches me that Simon Goacher, #QuackCWaC Head of Legal and ‘Democratic’ Services, he of the undemocratic, unscrutinised FOI / DP ban (see below) that they sought to impose on me when I left the council back in 2009, is himself leaving #QuackCWaC for pastures new.

He’s bailing out of the public sector and into the private, to become Head of Local Government at Weightman’s Solicitors.

Ok for some?  Presumably he’ll be onto a good number with a pay rise to match.  A simpering leaked email is now doing the rounds, originating from the offices of the Chief Executive, Steve Robinson, bemoaning the council’s ‘loss’.

However, this can only be positive news for the brunt of #QuackCWaC‘s disputing employees (presumably there will be many) as they are less likely to have their statutory Freedom of Information and Data Protection querying rights ‘removed coercively’ by Gotcha’s replacement.

I wonder whether abusive Wirral Council’s former Director of Law Bill Norman (£150,000 parting gift gratefully accepted from long-suffering council tax payers in October) might see an opportunity to repeat Gotcha’s 2009 move and make the short hop across to leafy Cheshire?

Hmmm.  Anyway, the fawning email tells us that the Gotcha ‘team’ was “Shortlisted for ‘Excellence in Democratic Services at the MJ Awards’.

Excellence!  I doubt the nation’s leading privacy lawyer, Hugh Tomlinson QC, would recognise any merit in this shortlisting, given Gotcha’s awfully-contrived legal horrors (see below), which traversed the great man Tomlinson’s desk in early 2011 !

In October 2009, Cheshire West and Chester Council sought to ban me from accessing information and personal data.  They now appear fully prepared to do this with more ex-employees in the future.  If they get away with it next time, it will be achieved once again by ‘removing’ selected individuals’ statutory Freedom of Information and Data Protection querying rights.  The ‘gag’ will be drawn up within a compromise agreement.

When the bond of trust has broken down between employer and employee, in circumstances of dispute, grievance or whistleblowing, a compromise agreement is an “agreement” in name only.  All recipients (regardless of any proven complicity or guilt), when managed correctly through the process, will be given two ultimate choices.  Take what’s on offer and lose your livelihood, or begin the process of bringing a claim to an Employment Tribunal …and lose your livelihood.  It’s rather like walking the plank.  You either make a V-sign to your tormentors and jump, taking your chances in the open ocean, or you turn back and get quickly run through with a cutlass.  More details here: http://tinyurl.com/6gaf2ts

Cheshire West’s ongoing use of the FoI / DP gagging clause flies in the face of a number of dubious claims, placed in the public domain – one of which is their ongoing ‘commitment to openness and transparency’.  The tactic also seems to be a direct breach of their own FoI / DP guidance.   Nowhere within the published FoI policy document or Data Protection advice is clearance given for officers or councillors to impose such a ban.  My own emailed attempts to contact the County Archivist in charge of Data Protection are not gaining a response.  Upon ringing him to ask reasonable, if searching questions, I was quickly told that my own gag was carried out without his involvement.

Which left me to ponder – was it wise for directors and legal advisers to take a step into the unknown, without consulting the relevant on-call professionals, such as the head of Data Protection?  Cheshire’s Head of all things DPA has now conceded he was left on the sidelines, whilst Senior Officers acted without his knowledge.

Unsurprisingly, this salaried employee, with many decades in the profession, maintains his loyalty and refuses to condone or condemn what would strike most people as impulsive and irrational conduct.  I’ve conveyed my disappointment to him, and reflected that if left unchecked, this behaviour could leave an indelible stain on his and his fellow senior officers’ perceived competence and professionalism.

More importantly, from the wider public interest standpoint, although these bans are carried through to a conclusion, their origins are uncertain.  There appears to be no transparency, and there was no scrutiny, let alone accountability.

The Information Commissioner is rightly concerned about a potential contravention of the Human Rights Act, and has aired his concerns publicly, stating that the only means of lawfully preventing access to information is via the exemptions written into the FoI Act.   He’s further clarified on the one hand that the council is likely to be in breach of the Act, but on the other, any breach of the gagging clause may have its own consequences for an individual who acts in defiance of the gag.  The person could find themselves being vigorously pursued through the courts in response to the simple act of requesting information.

The Information Commissioner’s Office have stated that they cannot sue for a breach of the Act unless and until one occurs i.e. when a ‘banned’ individual makes an FoI or DPA request in defiance of their gagging clause.  Such an action may also be taken in defiance of their own legal advice (as it would have been in MY case – my solicitor endorsed my own position of NOT breaching the unlawful gagging clause).  The only conclusion a reasonable person would arrive at is that once such a ‘ban’ is enforced, it’s highly unlikely that the material being desperately protected by the public body enforcing it, would ever see the light of day.  The pressure comes from ALL sides to put up and shut up.  In other words, here is a loophole for public bodies to exploit, and full licence to drive a coach and horses through their own policies, procedures and FOI / DP obligations!

On the face of it, the tactic appears threatening – a large club over the head of the departing employee.  That’s my opinion.  But the research I’ve been conducting has uncovered even more disturbing opinions – from other councils!  Upon receiving and examining the contributions of several of Cheshire West’s LGA colleagues, it seems the banning tactic is seen as foolhardy, and the issuing body reliant upon an unenforceable contract clause.  Ten English councils have questioned the council’s heavy-handed and ill-considered approach.  Some state it’s not possible for an individual to willingly contract out of their FoIA / DPA rights.  Others go further, saying they would never contemplate using it.  We’re left with the impression that the muzzling of former staff amounts to a half-baked, and retrograde step, but one which enables controversial, reputation damaging information to be concealed from public view.

My own personal ban (not breached in 20 months) was lifted in June 2011, thanks to my long term perseverance and the direct, personal involvement of Hugh Tomlinson QC.  But the Council Leader and the Head of Legal and Democratic Services remain unmoved.  They continue to hold out, insisting that in my case, a perpetual ban going forward, seemingly across all UK public bodies, was a balanced, considered and lawful approach:

Cheshire West and Chester Council believe their banning tactic to be lawful

Prior to this partial climbdown, the Leader of the Council, Councillor Mike Jones had already thrown his hat into the ring.  He stated in February 2011 that following ‘balanced consideration’, the Council was prepared to use the tactic again in the future.  Ever since the day my own personal ban was lifted, Councillor Jones has not been in touch to withdraw or modify the position he’d already set out (below).

I’ll therefore assume it still stands, and is testament to Cheshire West’s unheralded, unpublished, undemocratic, “on the hoof” policy making.  (Please click on the image to magnify and read in a new window).  Apologies for the rambling nature of the correspondence:

UPDATE   18th August 2012

Back in March of this year, I contacted Cheshire West & Chester Council’s Labour leader Justin Madders, in order to gain some more information on how this FoI / DP gagging clause had come to pass; whether it had received any scrutiny and which Council committee may have considered and approved such a measure.  He told me that the item never received any committee scrutiny or approval, and asked me to email Councillor Alan Mckie, Chair of the Staffing Committee:

From: Paul Cardin
Sent: 16 March 2012 23:26
To: MCKIE, Alan (Councillor)
Cc: MADDERS, Justin (Councillor); JONES, Mike (Leader of the Council); GOACHER, Simon
Subject: Cheshire West Council, opting out of its Freedom of Information and Data Protection obligations

Dear Councillor McKie,

I’ve been in touch with Cllr Justin Madders, who passed on your name as chair of the Staffing Committee.

He tells me that you were not prepared to put this item on the agenda of the committee.  Why not?

You did provide verbal assurances that the council wouldn’t use the anti-democratic Freedom of Information / Data Protection gagging clause again.   Most sane people with at least a measure of integrity, believe it should never have been used in the first place; because it circumvented proper scrutiny and flew directly in the face of your own and ALL other public bodies’ published policies.  Is it embarrassing to councillors that they may have been deliberately duped or by-passed?

I am currently trying to find out what records the council has with regard to this issue and have been told that there are none, which is frankly preposterous, as it doesn’t instil confidence in the council officers’ competence in the minds of the Cheshire public.  Although it’s not really surprising to me having been a victim in the past to systematic malpractice and concealment:

http://www.whatdotheyknow.com/request/freedom_of_information_and_data_2#incoming-258886

You may note that the council has made a public statement insisting that such an anti-democratic tactic “requires no scrutiny”.  Is this your recollection as chair of the Staffing Committee – that this is the case, AND that nothing was ever recorded?  Did the measure ever cross yours or the chairperson’s desk in summer 2009?  Were councillors happy to wash their hands of it, and for council officers to be given free rein to end livelihoods, level trumped up disciplinary charges, apply duress and aim to damage / remove a person’s human and statutory querying rights?

Please can you provide me with a written assurance that the council will not use the gagging clause again in the future?  Currently, existing employees and potential honest whistleblowers, acting in good faith and the public interest, could be in danger of being muzzled and suffering through immoral, illegal or compromising behaviour on the part of senior officers.  I’d appreciate it if you could act in the public interest and remove the threat forthwith,

Many thanks,

Paul Cardin

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Alan McKie’s response:

From: MCKIE, Alan (Councillor) [mailto:Alan.Mckie@cheshirewestandchester.gov.uk]
Sent: 20 March 2012 20:57
To: ‘paul.cardin@ntlworld.com’
Cc: JONES, Mike (Leader of the Council)
Subject: FW: Cheshire West Council, opting out of its Freedom of Information and Data Protection obligations

Dear Mr Cardin

Thank you for your e-mail.

I considered the request that the matter be put on the Staffing Committee Agenda but did not feel that it, in the circumstances, it was necessary to do so.

Elected members do not get involved in disciplinary issues for staff other than Chief Officers or statutory officers.  Operational management and disciplinary action in relation to individual officers is a matter for Chief Officers.  Elected members become involved only at the appeal stage.

I have spoken to the Head of Legal and Democratic Services who advises me that the compromise agreement was completed by staff in his team together with colleagues in Human Resources and the Community and Environment Directorate.  As is a requirement you received independent legal advice on the agreement and neither you nor your legal adviser raised any objection to the clause at the time.

The Head of Legal and Democratic Services advises that the circumstances of using such a clause would be extremely unusual and he does not foresee any circumstances in the future where it is likely to be used.  Each case will be considered on its own facts and on its own merits.

I do not consider that placing this before the Staffing Committee for consideration at this point is necessary for the following reasons;

1)      This was an isolated instance of such a  clause being used;

2)      It happened when the authority was fairly new and occurred some time ago

3)      On review by senior officers it was agreed that the restriction would be lifted;

4)      There is no evidence that the authority intends to use it again;

5)      Staff disciplinary issues and compromise agreements are operational matters for Chief Officers and members should not interfere   in their operation;

6)      There are safeguards in place for officers entering in to compromise agreements including the requirement that they seek independent legal advice; and

7)      There are further additional safeguards in place for whistleblowers and the Council has in place a clear whistle blowing policy.

I hope that this deals with the issues which you have raised.

Regards,

Alan McKie

Alan McKie Cllr.

Weaver and Cuddington Ward

Cheshire West and Chester Council

Tel: 01928 724960

Mob: 07971832467

Email: alan.mckie@cheshirewestandchester.gov.uk

Visit: cheshirewestandchester.gov.uk

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None of the contents of the above email reassures me that they won’t use this ban again, as there are ‘get outs’ peppered throughout it.  When their backs are up against the wall – and they are found to have been involving themselves in malpractice or breaching their own internal policies and procedures, which all risks being exposed, you can guarantee that the thought will cross their minds; “Hmm, it worked last time, for 20 months, and we eventually got away with telling him we don’t hold the information in response to his eventual FoI request.”

Not wanting to be exposed as dishonest at an industrial tribunal, along with the reputational damage they would incur, my view is that #QuackCWaC will indeed use this ban again, coupled with the brandishing of a fat wodge of other people’s money to sweeten the deal.

It’s the kind of miserable conduct engaged in by those “lacking a backbone”; and it’s now just a matter of time before they come up against a whistleblower with guts, spirit and a bit of fight in them…

If you read item 5 of the recently released Hugh Tomlinson QC opinion on this very subject, which makes certain recommendations on the legality of #QuackCWaC’s past conduct, the chances are they and others may feel emboldened anew!

Comment posted to David Higgerson website from November 2011

Cheshire West and Chester Council and Brent Council have also successfully ‘banned’ ex-employees (one was a whistleblower – me) from making Freedom of Information and Data Protection requests into the future. This was achieved within a compromise agreement. In total, the ‘ban’ lasted for a period of 20 months between October 2009 and June 2011. It took the intervention of Hugh Tomlinson QC to make them think again.

However, the council leader and monitoring officer have been in touch to tell me that they feel the measure is ‘lawful’ and they intend to use it again in the future as and when the circumstances arise. The problem is all professionals I’ve spoken to (except one) in the Data and Information field regard its use as regressive and unlawful, furthermore I don’t believe it’s ever received democratic scrutiny before any of their committees, which makes sitting councillors all seem rather redundant where data / info / transparency / openness is concerned.

Speaking of ‘redundant’, the Council’s Data Protection Officer informed me that he wasn’t made aware of the tactic either, although sadly he was unable to condone or condemn it, and couldn’t find it in himself to be supportive, remaining firmly ‘on the fence’ – which I personally found extremely disappointing.

The problem here is that the Information Commissioner’s Office is unable to police such behaviour, because the Freedom of Information Act is not breached until a ‘banned’ person breaks their gagging clause by lodging an FOI query or a DPA subject access request. When the council uses the gag as justification to withhold information – something which I never did – the ICO can act. The particular measure which deters people from doing this is a ‘large club over their head’ in the shape of a threat by the Council to pursue them through the courts should they breach the clause, for the return of any settlement money paid during the process of full and final settlement.

The upshot of all this is that, because the superior legal advice I received was I did the right thing not to breach the clause, the tactic works, and cleverly exploits a loophole. The council’s motivation for pulling out all the stops to use it is that it succeeds in concealing and protecting the reputation of the Council. Any immoral, unlawful or compromising behaviour indulged in during a dispute remains safely under wraps. It’s not nice and I imagine there are many members and officers who would not want to be associated with such sordid and unwholesome behaviour, regardless of the fact that it may have saved some money in going to tribunal – the reason usually trotted out when justifying the cover up of deplorable conduct.

Another problem is that the position of ‘monitoring officer’ is a powerful one. Such officers enjoy special privileges along with heads of paid service and finance, which make them very difficult to discipline or remove, however in the case of Cheshire West and Chester’s Simon Goacher, I feel that any extended powers he has may have been misused or even abused in this case. After all, they don’t give him the freedom to drive a coach and horses through his internal FoI and DP policies, let alone the FOI Act.

Because there’s nothing in place to stop it, councils are strapped for cash and because some people in public life can behave crookedly, there’s now a danger that this sort of thing could mushroom out of control. Although I don’t like the word ‘banned’, with all its negative connotations, I hope one day to update your blog with the welcome news that this sort of behaviour, which would not look out of place in Burma or North Korea, has finally been outlawed.

There’s more info on this here:
http://www.easyvirtualassistance.co.uk/page4.html

And an article on gagging clauses and compromise agreements here:
http://www.lawbriefupdate.com/2012/02/10/foi-and-local-authority-gagging-clauses/