#FoI Request ~ Departure of Chief Internal Auditor David Garry from Wirral 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


18th October 2012

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

See also this related blog post

Dear Wirral Metropolitan Borough Council,

On 17th October 2012, it finally became public knowledge that
disgraced Chief Internal Auditor David Garry – who had perversely
and inexplicably given the disgraced HESPE contract 3 stars – had
received permission, to leave his employment with Wirral Council.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Please provide the names and addresses of all organisations /
bodies involved in providing legal advice to Mr Garry. 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 Garry in relation to any failures /
malpractice / abuse which may or may not have brought about his
departure from the Council.

If Mr Garry 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 confirm which meetings have taken place. Presumably there
will have been at least one gathering called to scrutinise the
so-called “compromise contract” that was drawn up and agreed,

Yours faithfully,

Paul Cardin

For further context and background information, see the story of  Nigel Hobro, an accountant of 30 years’ standing, working for Wirralbiz, who blew the whistle on alleged malpractice at Wirral Council, attached to the BIG (Business Investment Grant) Fund:

http://www.liverpooldailypost.co.uk/liverpool-news/regional-news/2012/04/12/wirral-council-investigates-new-whistleblowers-claims-99623-30740243/

Mr Hobro has taken his issues to an employment tribunal, which was recently postponed due to a contributor’s illness.  Presumably he will have lodged a case against his former employer WirralBiz for discrimination or for unfair or constructive unfair dismissal ~ which is often what happens to whistleblowers.  The messenger is attacked.

Mr Hobro has also made some revealing remarks in the comments pages of the local media and has been very keen in his blog to get his message out there:

Here’s a WhatDoTheyKnow request, lodged in May this year, but not yet answered by the council five months on.  It is now at appeal with the Information Commissioner’s Office.

The story was continued in the Liverpool Daily Post during the last week of September 2012 on page 9.  However for some reason, there is no web link to the story.

Site Meter

#FoI request ~ Discovery of Wirral Council’s failure to record compromise agreements

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

Face of a man who is covering his eyes uid 1460818

“Let’s close our eyes everyone.  Because then….

….it’s not really happening”

Total numbers for Compromise Agreements (full & final settlements for departing employees)

I lodged a previous request on this subject back in January 2011.  This was one of 345 separate requests made to English councils at the time.  Wirral trailed in 345th…. the very last council to respond, taking 216 working days to provide the following:

2006: 2
2007: 1
2008: 3
2009: 2
2010: 4

The FoI / DP gagging clause had never been used.

I thought, given the Chief Internal Auditor’s recent finding of high priority fundamental risks in this area, and a failure to scrutinise and record anything, not only was I left scratching my head on how they’d provided figures for years 2006 to 2010, but the time had come to try and draw back the veil that’s been cynically pulled across, shine a spotlight into the gloom, and update the public on how many compromise agreements were issued throughout 2011 – a year of great turbulence for the Council.

Compromise agreements are important and sombre legal documents, and often contain “gagging clauses” in order to keep the employee and the issuing body quiet.  They rule out future legal recourse and are associated with the handing over of large sums of public money, aimed at pacifying complainants, whistleblowers (who can’t in law actually be gagged) or those who have been subject to disciplinary allegations or investigations.  In other words ~ they are the lynchpin to an extremely touchy and sensitive area.

Sharp-eyed readers may have spotted in the above report that David Garry, Chief internal auditor, has failed to highlight the subject of  ‘compromise agreements’ in the introduction to the report, whilst making room for and headlining more mundane subjects such as “the overdue audit of Bidston Village Primary School”.

In her report, independent investigator Anna Klonowski has already headlined that such dysfunctional, secretive behaviour, followed by a peculiar brand of selective reporting is all in a day’s work for Wirral Council, ending her 249 pages with, “If positive and constructive change is to occur a clear articulation of ‘this is how we do business in Wirral’ needs to be developed and modelled every day by those in leadership positions throughout the tiers of management.  This will need to be supported by the development of an ability to constructively challenge those who do not adhere to these behaviours.” *waves at Mr Garry*

So, on it goes despite Klonowski.  The habitual kneejerk lurch towards the dysfunctional…. continuing ‘as abnormal’.  The “Wirral Way” of doing things never bodes well for anyone banking on integrity breaking out, or ideals such as openness, transparency, and the free and unhindered flow of information.

Maybe it’s just too early to usher in normality.  And with no accountability in sight, maybe normality is a bridge too far?

Here is the new FoI request, which was lodged today:

http://www.whatdotheyknow.com/request/total_annual_figures_for_comprom_347

Please check back for updates.

UPDATE   9th October 2012

Appended to the above FoI request:

Dear Wirral Metropolitan Borough Council,

In relation to the above request, please also supply the figures
for THIS calendar year, 2012, to date. As follows:

Following on from the 2011 END DATE of the previous request….the
annual figures for the total number of current employees or
ex-employees of Wirral Borough Council who have signed compromise
agreements directly related to the resolving of dispute(s) /
grievance(s) / internal and external investigation(s) /
whistleblowing incident(s).

Yours faithfully,

Paul Cardin

UPDATE    30th October 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 ‘Total Annual Figures
for Compromise Agreements, etc.’.

You have failed to respond to this query within the statutory 20
working days allowed. Please ask a senior officer to carry out an
internal review and also provide the person’s name, role and
contact details including phone number. Please also provide a
receipt for my request for review.

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

Yours faithfully,

Paul Cardin

UPDATE   28th November 2012

Dear Wirral Metropolitan Borough Council,

It is now over 20 working days since I requested an internal
review.

As you are again in breach of the Freedom of Information Act, I
will now turn to the Information Commissioner and lodge an appeal /
complaint,

Yours faithfully,

Paul Cardin

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