Was Anna Klonowski’s investigation truly independent? Wirral Council still to reply – 9 months on

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

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

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

www.wirralinittogether.wordpress.com

Blue information sign with direction arrow uid 1275249

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

The above FoI request was placed in May 2012.  Last spring.  Wirral Council acknowledged receipt 7 months later in December.  This winter.  So it’s the customary, not exactly timely response.

It’s pretty much the kind of thing we’ve come to expect when approaching Wirral Council in good faith for public information ~ a  towering and pretty impregnable brick wall of inertia.

You might gain the impression they frankly don’t give a damn.

Link to news that Wirral will be the only council in the land, monitored by the Information Commissioner – starting in January 2013

But at least while they sit in silence, and in breach of the Freedom of Information Act, and we continue to wait for something to happen, we have an opportunity to discuss the issues brought up in this request, one by one.

  • AKA Associates, headed by local government consultant Anna
    Klonowski has a track record of working with Wirral Council, in the
    areas of training of senior officers and councillors, consultation
    on governance, and “independent” investigation. According to press
    reports, and the council website, it appears AKA’s associations
    with the Council as an “independent” consultant are ongoing and
    developing further

That’s right.  This ‘independent’ external investigator had a prior association with Wirral Metropolitan Borough Council, which began five years before AKA were appointed to externally investigate, back in 2006.  It took the form of ‘governance training’ provided to senior officers and councillors.

Despite several written requests – here is a selection from Twitter – I’ve never been provided with any information to allay public concern over the true impartiality or ‘independence’ of the Klonowski inquiry.  The people involved are all public servants, working for you and me, but there are serious, compelling and ongoing questions, raised in the interests of openness, transparency, fairness and democracy, but yet to be answered:

  1. Why was AKA chosen ahead of other qualified individuals and organisations – many without a prior association?
  2. What exactly were the company’s credentials for taking on such a complex and wide-ranging inquiry?
  3. Did Councillor Green’s choice fully comply with the Council’s policy and procedure for the commissioning of external investigations?
  4. With being a former trainer, did AKA stand to gain or lose in any way by the decisions / findings / recommendations reached?
  5. Why did AKA fail to investigate Balls Road Supported Living in the same way West Wirral was looked at? (The AKA “not enough time” excuse was inadequate and may have breached the remit)
  6. Why did AKA stubbornly refuse to minute or dual-tape-record their investigations with participants of the external review despite many requests?  The chance to record a completely accurate version of events was quickly lost forever

Why do these questions need to be answered?  Because AKA do not appear to have declared any prior interest or affiliation when the then leader Jeff Green commissioned them to carry out a review which eventually cost the local taxpayer £250,000.

Also, having a prior connection, that of providing governance training to councillors and senior officers, Anna Klonowski Associates seems to have stood to gain (or lose), dependent on the eventual outcome.  It’s not in the interests of the wider public, to entrust an organisation whose fortunes clearly rode on the outcome they themselves would reach.  In fact, it seems to have been a forseeable and avoidable conflict of interest which could have interfered with the nature of the conclusions eventually arrived at.

AKA found that all 66 councillors were completely blameless – which many existing staff, former staff, and members of the public understandably found astonishing.  The problem for AKA was: if they’d found a number of councillors culpable, it may have interfered with future funding decisions, and put an end to their association with the council; an association that AKA had spent  many years building and nurturing.  With ‘playing safe’, and clearing the decision makers, there was no direct obstacle to AKA continuing to provide their ongoing consultancy services.

I’m not saying this is what actually transpired, and that these were the reasons for the decisions made – but we can’t rule anything out or in – because there has been either silence or a dearth of information.  And to the sceptical, hard-bitten Wirral Council watcher, there was always the potential for ‘shenanigans’ to occur.  And given the council’s proven historical abuse of power, this would not look out of place.

The public can’t be blamed for harbouring serious misgivings – doubts which have never been safely put to bed.

(More to follow…..)

I wonder what’s happening with this?  I haven’t heard a thing

— Wirral In It 2gether (@Wirral_In_It) January 13, 2013

Compromise Agreements ~ Their Impact on Equal Pay Claims

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

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

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

www.wirralinittogether.wordpress.com

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.

Site Meter

Wirral Council to be monitored AGAIN for poor performance by Information Commissioner

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

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

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

www.wirralinittogether.wordpress.com

Clock over person s eye uid 1460629

‘TIMELINESS’

21st December 2012

As Christmas approaches, it was announced today that Wirral Council are one of only 4 public bodies to face a three month period of ICO monitoring, commencing in January 2013.  They are the only English Council to face the regime this time around.

It’s happened before, but the same staff and councillors appear to have learned very little; unlike the other 18 (count them) councils mentioned at this link – who appear to have upped their game and not re-appeared on the list this time.  Is this second appearance on the ‘naughty list’ another first for Wirral?  Who knows?  But they could begin to make a habit of it, given the convergence of their deep-seated,  unchecked arrogance and the wider climate of cuts.

Having dealt with Wirral Council for some years, the news doesn’t surprise me one bit.  Let me reassure you, they are every bit as bad as this decision to monitor implies – and probably worse.  I won’t trot out all of my dismal experiences here, but here’s a link to some analysis of a few of my own requests, which will be updated in the New Year, but should give you a flavour of the inertia that the public are greeted with by default – and the level of importance this council attaches to the public’s statutory right to Freedom of Information and Data Protection.

In the following article, whoever the Liverpool Echo interviewed from Wirral felt it necessary to blame the public once again by indicating that one citizen is the source of a fifth of all complaints.  And yet again, there’s an inability to acknowledge that they’ve been mired in scandal upon fiasco upon further scandal since well into the last century.

http://www.liverpoolecho.co.uk/liverpool-news/local-news/2012/12/22/mersey-council-under-scrutiny-over-freedom-of-information-failures-100252-32478176/

As I’ve said before, no organisation can grapple with a deep-seated problem such as this until self-awareness fully hits home and it stops going down the easy route of blaming other people for its own desperate, self-inflicted failures.

As far as Freedom of Information is concerned, with the wider climate of cuts and job losses, and with Wirral Council’s tendency to hit out and take potshots at the public who voted them into power, I expect more of the same and for the abusive masters clutching the whip hand to thrash about and sink even deeper into the miserable black hole of their own creation.

Wirral just don’t get it – Freedom of Information report to Councillors- 3rd September 2012

Please see the following link to an article in the Wirral Globe, dated today, 3rd September 2012:

http://www.wirralglobe.co.uk/news/9907712.Concerns_over_Freedom_of_Information_workload/?action=success

Then read the following report, written up by Wirral’s “Head of IT Services”.  My first observation is… Why mix in LGO complaints with FoI complaints?  Not very helpful to conflate the two, and a muddying of the water.

http://democracy.wirral.gov.uk/documents/s50005983/FOIREPORT.pdf

As far as Freedom of Information goes, much of the emphasis throughout this report seems to fall upon unnamed members of the public, who’ve had the temerity to raise a large number of requests.  There’s a reference to a table titled, “Top Ten Originators of FOI Requests” – a kind of rogues’ gallery, which is worth reproducing here.

Good that they resisted the urge to reproduce citizens’ names publicly in this report.  That would have been both stupid & outrageous.

Originator 1 has made eleven times more requests than Originator 2.  I’d suggest that if, as the data controller, you’re justified in going down the road of blaming a small number of people making a large number of requests – which you certainly are not – then this is your problem person !  1 person making 245.  There’s no need for the rest of the table in fact.

And who exactly decides what is excessive?  Are Originators 8, 9 and 10, (making 7 requests each in a whole year) too much for Wirral Council to cope with?  Do they deserve to be lumped in?  Give us a break !

It’s quite clear that “Originators” 2 thru 10 are merely “padding” – having only made between 22 and 7 requests in the whole year, or a total of 98 and an average of just over 10 (less than one a month) between them.  Can they really be part of a groundswell of unseemly and pernicious FoI requesting breaking out all across Wirral?

As rumour and innuendo seem to have been given free rein, it appears our elected councillors, the intended recipients of this report, are being urged to believe that despite the council doing its utmost, a small number of people (with an axe to grind?) …are making life very difficult for hard-pressed FoI officers.  How can staff cope if the sheer volume of requests prevents them from doing their jobs effectively?

It doesn’t suit the report’s author to bring everything into context and refer to any of the important statutory provisions and protections detailed within the Act.  It seems to have been more convenient for him to invoke an ‘out of control public’, egged on by stories in the newspapers, then juxtapose that alongside carefully selected keywords e.g. vexatious; repeated; obsessive; harassing; causing distress; significant burden; distraction; disruption; annoyance; lacking serious purpose or value.

Neither does Mr Paterson mention the fact that Wirral have dedicated only two staff to the problem ~ one data / info professsional and an admin assistant.  Which kind of sums up the level of importance Wirral have attached to addressing the public’s statutory information and data querying rights.

Sadly, the report’s purpose is to run, headlong, with the tactics of smear.  The heavy hint to councillors is that all of these requests are somehow “vexatious”.  There’s no reference to the fact that a person / requester cannot be vexatious,  because the truth would be inconvenient in this case – and detract from the message.


In addition to the above, the formal ICO description of the “vexatious request” is helpfully given to councillors by the report writer – seemingly intended to “point them in the right direction”.  And despite the report’s clear desire to cast far and wide for blame, rather than look inward, and perhaps put the focus onto the council’s own resources, there are some curious omissions closer to home:

  • The person making 245 requests in the last year has not been challenged for placing vexatious requests – possibly because not one of those requests is repetitious, invalid or frivolous in any way and therefore cannot be refused under the Act.  Well, I can’t think of any other reason not to get tough with “Mr Sheffield” !
  • The Freedom of Information Act 2000 makes absolutely no provision for data controllers to shift the blame across to “requesters who make a large number of requests” in order to mask their own poor performance – which the council will know – but it seems they’d rather gloss over all that and spin some irresponsible nonsense to the wider public (Wirral Globe) & councillors (the report)
  • The Freedom of Information Act 2000 doesn’t place a limit on the number of requests an individual can make to any particular data controller.  Every public body, including Councils, NHS Trusts, the police, has statutory obligations, and is required to meet and resource those accordingly.  Wirral’s information governance appears woefully under-resourced, with practitioners preferring instead to fail, plod on, muddy the water, and stir up a cynical smoke screen
  • The erstwhile head of FoI, and Acting Chief Executive Ian Coleman is currently suspended from work

There’s another angle.  Wirral compares itself to “other local authorities” and claims that it is receiving a “disproportionately higher amount of enquiries compared to those of a similar size”.  The public don’t doubt that at all, but there ARE reasons for this.  There are some rather startling yet unacknowledged facts; in the shape of quite horrendous albatrosses, draped across the shoulders of Wirral Council:

The above list is by no means exhaustive.  Wirral recently let slip the identity of another public-spirited whistleblower. It was published in full view of the world on the council’s website.  Many have interpreted this as a deliberate “shot across the bows” of any principled staff members who may be contemplating blowing the whistle themselves.

There are countless more scandals and fiascos, too numerous to mention.  Predictably, ‘other councils’, similarly sized or not, don’t tend to boast such horrific roll-calls of bullying, historical malpractice, attempted cover up, repeated abuse and suspected impropriety, going back well over a decade, and on into the last century.  Hence, the all too understandable response from the public, a legitimate and compelling desire as concerned citizens (who hand over a great deal of money in council tax): to find out what the hell is going on.

Given the above Council report, which is just the latest addition to the ongoing fiasco, the people of Wirral must be doubtful that those at the top have ever digested and fully understood the AKA report.  With the situation so dire, and with vulnerable people still struggling under this basket case of a Council, self-awareness is all.  Sadly, the top people appear myopic at best, blind at worst to progressive solutions – and are falling into the same old traps all over again.

There’s no perceived commitment to good old-fashioned public service – despite the calling in of an LGA “improvement board” – which has already been seen to omit important issues raised by the local public from the minutes of its public meetings.  I attended an improvement board meeting on 22nd June this year, went before them and lodged a clear and detailed question on accountability for people believed to have been involved in abuse.  These were two former senior officers who dodged any disciplinary sanction, and were then paid off and gagged (total £220,000) within a legal document.  When the minutes arrived, they’d been generalised; homogenised, with all the discomfiting points related to the clear enabling of abuse omitted.

Thank you Wirral.  Job done.  How convenient.  How self-serving; but not very open; not very transparent; not at all accountable, and certainly NOT an “improvement”.

The fact we’ve had no reckoning for past abuses means they’re still locked into complete denial ~ spinning, protecting, shielding and concealing everything within a destructive vacuum – a kind of black hole that consumes all, destroys any light, and succeeds only in “churning out heat and smoke”; the intention being to protect the power, obscure the issues, and pave the way for future speculators to descend into a pit of abuse, knowing they can emerge clean, and loaded down with a stash of easy money to disappear with over the horizon when the time comes.

That’s what happens with proven basket case authorities, blind to accountability.  Chancers and those on the make see an opportunity – and become desperate to join in and raid the public purse – where they know there’s a good chance they’ll get away with it.

Link to total number of Wirral WhatDoTheyKnow FoI requests & number of concerned citizens following this authority

24th November 2012

Word on the street is that Geoff Paterson, author of the above disingenuous and smearing report will be looking for a new job soon.

Site Meter

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

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

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

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

www.wirralinittogether.wordpress.com

Silhouette of scale

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

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

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

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

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

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

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

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

Opinion of Counsel

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

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

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

My reading of counsel’s opinion is:

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

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

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

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

Site Meter

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

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

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

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

www.wirralinittogether.wordpress.com

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

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

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

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

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

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

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

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

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

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

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

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

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


Site Meter