Fine words – but where Wirral Council’s concerned, they’re always a hostage to fortune

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Here’s a link to a fine Wirral Council document.  ‘Fine’ because its stuffed with nice sounding, positive words – strong, decisive ones.  Only later – much later – to be revealed as shitty, deceitful and hollow.  The abusive council which promised so much… but delivered nothing.

http://democracy.wirral.gov.uk/mgConvert2PDF.aspx?ID=18972

It’s the process of bogus, pained self-flagellation / feigned victimhood that workplace bullies lurch towards when caught in the act.  Like rabbits in the headlights, they’re briefly stunned; but not missing a beat, they quickly recover.  Soon they’re up and running again, promising not to be so awful to their staff again in the future.  Their staff – the people they’ve described so many times in the past as ‘our most important asset’.

“Never again”, they will say. “This time….  it’s for real.”

But because they have all the power, they’ll quickly remind you that they’re the ones who are best placed to sort it all out.  They’ll start by making an earnest pledge to the watching public.

“We will stop at nothing in pursuit of the truth.  Lessons will be learned.  We will make the people responsible for this atrocious conduct (i.e. we the councillors / senior officers and our on-message sycophants) fully accountable…. and we are determined to succeed.  We are committed to fixing this organisation, and  moving forward.  We will start by calling for an immediate and robust review of all the relevant policies and procedures.”

This will be their call to ‘action’.  They may even call the whole thing an “Action Plan“.  Because that sounds positive.  Unless like Wirral, you happen to be on Action Plan number 94 for whatever year, with the list of self-generating scandals and fiascos growing ever longer:

  • (to be continued…..)

The experienced council watchers among you are now seeing phrases trotted out such as ‘we need to draw a line under it’ or ‘this council has to move forward’ or ‘that’s historical and happened such a long time ago’.

Here’s a reminder of Councillor Denise Roberts’ amendment from way back when – otherwise known as ‘the ‘series of unfortunate events defence’ – stuffed to the gills with the corrosive language of avoidance – which despite or because of LGA involvement, still epitomises to this day Wirral Council’s inability to take onboard and recognise its own desperate failings.

As the desire to cover up gathers fresh momentum, a public inquiry and / or special measures are desperately needed – to stem the haemorrhaging of £millions more of our money into the burgeoning black hole of Wirral councillors’ and senior officers’ creation.

Now…!

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UPDATE – Wirral Councillors NOW REGISTERED with the ICO – but are YOU paying…?

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Back in early October, following the publishing of my email address without permission on a group of Wirral Councillors’ website, I decided to make enquiries and find out how many of our then 66 councillors were registered as ‘data controllers’ with the Information Commissioner’s Office.

This is a legal, statutory requirement where councillors are acting on behalf of constituents and storing their personal information electronically on home computers.

Within the ICO website, there’s a handy name checker where you can type in a name, address, etc. and discover whether an individual or company is actually registered.  I did this for the Wirral 66 and discovered that….  none of them were registered.

So I gave them all fair warning, advising them that they may have been in breach statutory law.  It was possible that not all of them needed to register, but highly unlikely that all 66 didn’t.

Since then, two have sadly died, however I waited a further month, but of the remaining 64, only 2 have registered.

So I’ve now sent a second email, advising them that as a member of the public, not wanting to see constituents’ personal data being manipulated illegally, I see it as my duty to inform the ICO, who will hopefully be taking steps to put the situation right.

Here are both emails:

Email One

From: Paul C
Sent: 10 October 2012 21:38
To: ‘ronabbey@wirral.gov.uk’; ‘chrisblakeley@wirral.gov.uk’; ‘eddieboult@wirral.gov.uk’; ‘alanbrighouse@wirral.gov.uk’; ‘wendyclements@wirral.gov.uk’; ‘tonycox@wirral.gov.uk’; ‘jimcrabtree@wirral.gov.uk’; ‘georgedavies@wirral.gov.uk’; ‘phildavies@wirral.gov.uk’; ‘billdavies@wirral.gov.uk’; ‘darrendodd@wirral.gov.uk’; ‘pauldoughty@wirral.gov.uk’; ‘davidelderton@wirral.gov.uk’; ‘gerryellis@wirral.gov.uk’; ‘stevefoulkes@wirral.gov.uk’; ‘leahfraser@wirral.gov.uk’; ‘philgilchrist@wirral.gov.uk’; ‘patriciaglasman@wirral.gov.uk’; ‘jeffgreen@wirral.gov.uk’; ‘robertgregson@wirral.gov.uk’; ‘pathackett@wirral.gov.uk’; ‘johnhale@wirral.gov.uk’; ‘tomharney@wirral.gov.uk’; ‘paulhayes@wirral.gov.uk’; ‘sylviahodrien@wirral.gov.uk’; ‘andrewhodson@wirral.gov.uk’; ‘mikehornby@wirral.gov.uk’; ‘peterjohnson@wirral.gov.uk’; ‘markjohnston@wirral.gov.uk’; ‘adrianjones@wirral.gov.uk’; ‘chrisjones@wirral.gov.uk’; ‘peterkearney@wirral.gov.uk’; ‘stuartkelly@wirral.gov.uk’; ‘briankenny@wirral.gov.uk’; ‘anitaleech@wirral.gov.uk’; ‘annemcardle@wirral.gov.uk’; ‘donmccubbin@wirral.gov.uk’; ‘annmclachlan@wirral.gov.uk’; ‘moiramclaughlin@wirral.gov.uk’; ‘chrismeaden@wirral.gov.uk’; ‘davemitchell@wirral.gov.uk’; ‘berniemooney@wirral.gov.uk’; ‘simonmountney@wirral.gov.uk’; ‘christinamuspratt@wirral.gov.uk’; ‘steveniblock@wirral.gov.uk’; ‘tonynorbury@wirral.gov.uk’; ‘cherrypovall@wirral.gov.uk’; ‘deniserealey@wirral.gov.uk’; ‘lesleyrennie@wirral.gov.uk’; ‘deniseroberts@wirral.gov.uk’; ‘lesrowlands@wirral.gov.uk’; ‘johnsalter@wirral.gov.uk’; ‘harrysmith@wirral.gov.uk’; ‘tonysmith@wirral.gov.uk’; ‘waltersmith@wirral.gov.uk’; ‘jeanstapleton@wirral.gov.uk’; ‘michaelsullivan@wirral.gov.uk’; ‘adamsykes@wirral.gov.uk’; ‘joewalsh@wirral.gov.uk’; ‘geoffreywatt@wirral.gov.uk’; ‘stuartwhittingham@wirral.gov.uk’; ‘irenewilliams@wirral.gov.uk’; ‘jerrywilliams@wirral.gov.uk’; ‘patwilliams@wirral.gov.uk’; ‘stevewilliams@wirral.gov.uk’; ‘janettewilliamson@wirral.gov.uk’
Subject: Registering with the Information Commissioner’s Office as a data controller

Dear Councillor(s),

After checking, I note with some concern that none of Wirral’s 66 councillors appear to be registered with the Information Commissioner’s Office as Data Controllers.  This seems unusual given that a number of you are likely to have personal details e.g. residents’ names and addresses / email addresses stored on your computers at home, and are likely to have represented these residents either individually or collectively in some way, shape or form.

Here is a helpful message from Jane Corrin, the Council’s Information Manager, explaining some of the background to this issue:

Good Afternoon,

Thank you for your email below.

Advice from the Office of the Information Commissioner for Local Councils is that each individual councillor needs to review and consider if they need to notify with the ICO; depending how they process Personal Data.  This advice is detailed at the link below, which I trust you find useful.

http://www.ico.gov.uk/Global/Search.aspx?collection=ico&keywords=councillors

A short summary is also below, which explains how some processing will be covered by the Council’s Notification and Councillors do not need to register; although circumstances may arise when Councillors must notify individually, at a cost of £35 a year.

“In determining whether they need to notify, councillors need to consider the role in which they are processing personal information. If doing so as a member of the council or as a representative of a major political party, councillors will not normally be required to notify with the ICO. However, when carrying out their role as a representative of the residents in a ward or an independent councillor who is not affiliated to any political party a councillor may need to notify.”

Kind Regards

Jane Corrin

Information Manager

Wirral council

Simon Entwistle, Director of Operations at the ICO, said:

“Most councillors have regular access to the personal information of the residents they represent. Like all organisations who handle people’s information, it is of paramount importance that they take their responsibilities under the Data Protection Act seriously.

“We will be writing to councillors with advice on whether they need to notify with the ICO. Those who fail to notify with us when required may face enforcement action.”

Please take time to follow this link, which will enable you to very quickly and honestly assess your own position in order to determine whether any of your own activities should be registered.  This may help to protect the data security and privacy of any residents whose information you may be storing:

http://www.ico.gov.uk/notify/self/question1.html

Please note that any qualifying failure to notify with the ICO may result in a £5,000 fine, or an unlimited Crown Court fine.

More helpful information here:  http://www.ico.gov.uk/~/media/documents/pressreleases/2011/councillors_dp_compliance_news_release_20110125.ashx

As a Wirral resident, given the Council’s less than adequate performance on Freedom of Information in particular, I am concerned that a degree of sloppiness may have been allowed to creep into the important areas of data protection and security.  For this reason, I will be checking with the ICO in a month’s time to see what progress has been made,

Kind regards,

Paul Cardin

Email Two

12th November 2012

Dear Councillors,

I’ve re-checked with the Information Commissioner’s Office and it appears that despite the email I sent to you all a month ago (below), only one of you appears to have decided to ‘go legal’ and register with the ICO as a data controller.

Individually, there may be perfectly valid reasons for this, but 63 councillors lawfully not registered seems highly unlikely, given that many of you deal on a day to day basis with constituents’ personal data and information – and may have that personal data and information stored on your home computers for the purposes of e.g. carrying out casework on behalf of individual constituents.

I’ll now take this on to the next stage and report the situation to the ICO, who I’m sure will be grateful to receive the heads up.  Given the background on Wirral of years of disabled abuse; disability discrimination; impropriety; hideously misconceived legal crusades; failed standards complaints; blaming the public for the Council’s own inadequacies in data and information management; suspensions, followed by vindication; pay offs; gags; nobody made accountable, and layer upon layer of cover up, they may not be surprised.  But there’s one thing for sure….

I’ll be surprised if the ICO agree with Councillor Crabtree’s sentiments, and declare it…… quote… ‘a load of tosh’,

Best regards,

Paul Cardin

ps. Please accept my apology here and now if you have registered and the ICO has not yet updated its records to reflect this

I attached a read receipt to these messages and a number of councillors sent the receipt back “not read” i.e. the message itself was deleted without being read.

Since this email was sent, one further councillor has registered with the ICO.

I’ve now sent an email to the ICO, with a list of the 62 councillors not registered, asking them to advise:

18th November 2012

Dear ICO Notification Department,

I have sent the attached emails to all Wirral Councillors regarding non-notification as data controllers with the ICO.  Wirral currently has an LGA “Improvement Board” in place following a number of serious scandals which were played out over a number of years.  The council has also had a loose grasp on the importance of Freedom of Information and has been subject to the ICO’s ‘special measures’ following poor performance.  My own experiences are not good and I have placed requests which have taken over a year to address.

When I sent the 1st email in early October, there were 66 councillors in total, none of whom were registered.  Since then, two councillors have sadly died.  I sent the 2nd email a month later after allowing them ample time to take action (if they felt it was necessary), however only two are now registered, making 2 from a total of 64.  It seems likely to me that many of them will be active in representing constituents, will possess personal details in electronic format, will potentially be in breach of the Data Protection Act and are required to register.

I have checked against your own website records and I am therefore notifying you of the failure of the following 62 councillors to comply and to register:

  1. Ron Abbey
  2. Chris Blakeley
  3. Eddie Boult
  4. Alan Brighouse
  5. Wendy Clements
  6. Tony Cox
  7. Jim Crabtree
  8. George Davies
  9. Phil Davies
  10. Bill Davies
  11. Darren Dodd
  12. Paul Doughty
  13. David Elderton
  14. Gerry Ellis
  15. Steve Foulkes
  16. Leah Fraser
  17. Phil Gilchrist
  18. Patricia Glasman
  19. Jeff Green
  20. Robert Gregson
  21. Pat Hackett
  22. John Hale
  23. Tom Harney
  24. Paul Hayes
  25. Sylvia Hodrien
  26. Andrew Hodson
  27. Mike Hornby
  28. Mark Johnston
  29. Adrian Jones
  30. Chris Jones
  31. Stuart Kelly
  32. Brian Kenny
  33. Anita Leech
  34. Don McCubbin
  35. Ann McLachlan
  36. Moira McLaughlin
  37. Chris Meaden
  38. Dave Mitchell
  39. Bernie Mooney
  40. Simon Mountney
  41. Christina Muspratt
  42. Steve Niblock
  43. Tony Norbury
  44. Cherry Povall
  45. Denise Realey
  46. Lesley Rennie
  47. Denise Roberts
  48. Les Rowlands
  49. John Salter
  50. Harry Smith
  51. Tony Smith
  52. Walter Smith
  53. Jean Stapleton
  54. Adam Sykes
  55. Joe Walsh
  56. Geoffrey Watt
  57. Stuart Whittingham
  58. Irene Williams
  59. Jerry Williams
  60. Pat Williams
  61. Steve Williams
  62. Janette Williamson

The two now registered councillors are Peter Kearney and Michael Sullivan.  Party leaders are Phil Davies, Jeff Green and Tom Harney.

I would appreciate it very much if you could acknowledge receipt of this email, advise me what’s now required and advise me what action you will be taking,

Best regards,

Paul Cardin

21st November 2012

No response in from the ICO yet.

26th November 2012

Still no response in from the ICO.

28th November 2012

Just spoke to a very helpful person from the ICO’s ‘Non-Compliance’ Department, who assured me that Wirral Council’s leader, Phil Davies, has been in touch and that hopefully soon, a cheque will be on the way to pay for all non-compliant councillors.

I should add that this cheque will cover 62 people, and they will not be paying out of their own pockets.  This will include and benefit the elected member (identity available on request) who told me in an email it was “A load of tosh“.

The Wirral public will be digging deep (£2,170) to cover not just themselves, but any errant councillor playing fast and loose with their sensitive personal information.

See here and here.

Watch here for further information and correspondence.

UPDATE   21st January 2013

Email in from a lead case officer at the ICO:

—– Forwarded message —–
From: [Lead Case Officer’s email address redacted]
To: Paul Cardin
Subject: Non-registration of 62 Wirral Councillors – FAO [Lead Case Officer’s name redacted]
Date: Mon, Jan 21, 2013 16:28

Dear Mr Cardin,

My apologies for not being able to reply sooner, I have been on leave and today is my first day back in the Office since Christmas.

I have been in communications with the Legal Services team at Wirral Council since you raised the matter of their councillors being un-registered.

On the 21 December 2012 we received 62 application forms for the individual councillors together with 1 cheque from the council to cover the 62 lots of £35 registration fees. I have no idea if the council will be re-imbursed by the individual councillors or whether the council is in fact paying for the registrations of their councillors.

If I remember rightly, a set of application forms was posted out in the name of Phil Davies and the legal services team then used that application form for the template for the rest of the councillors, obviously changing the data controller name each time to that of the respective councillor and a different registration number was created by us for each councillor when the forms were processed.

The forms were processed by our Notification Department on the 24th December 2012 and all of the councillors are registered at the same address (the Wirral Borough Council Offices address) so if you are wanting to do a search of the councillors registrations if you go onto our website and onto the public register page and put in the post code CH44 8ED then you should be able to see the list of the councillors that are now registered.

There was a covering letter with the application forms as I think they are waiting on 1 more application form but I think that is because of an upcoming election for a vacant seat? Perhaps I have got that wrong but I do recall there being a valid reason for the omission.

Hope this helps, like I say I am only just getting back into the swing of things and some of my recollections are a bit vague!!

Kind regards,

[Lead Case Officer’s name redacted]

Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF.

T. [redacted] F. [redacted] www.ico.gov.uk

From: Paul C
Sent: 18 January 2013 09:26
To: Notification@
Subject: FW: Non-registration of 62 Wirral Councillors – FAO [Lead Case Officer’s name redacted]

FAO [Lead Case Officer’s name redacted]

Dear [Lead Case Officer’s name redacted]

Please forward copies of the information we discussed last year: documentation to show that Councillor Phil Davies placed a ‘bulk order’ for 60+ Wirral Councillors’ data controller registrations.

I realise that you are currently on leave, but would be grateful if you could act on this request shortly after returning.

I hope you had a good break,

Regards,

Paul Cardin

The officer hasn’t forwarded what I asked for yet – copies of documentation in the form of correspondence / a ‘bulk order’ for 60+ councillors, but I’ll be chasing him up on it.  Hopefully I won’t have to place an FoI request…. and wait.

____________________________________________________________________

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Wirral #FoI news. Whistleblower ‘accidentally’ identified on Wirral Council Website

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11th July 2012

The following FoI request was placed today, after the identity of a Highways Department whistleblower was ‘accidentally’ made available to the whole world via the Wirral Council Website.

This was in relation to the HESPE contract, awarded to COLAS in 2008 and later found to have been riddled with impropriety.  The Director involved, whose own brother used to work for the winning bidder, was suspended from his job back in March of this year.  He has since been cleared with ‘no case to answer’, courtesy of somebody who spends a lot of time defending senior council officers in trouble, and has also watched several colleagues being either cleared, gagged, paid off or all three since he hung his boots up.

The offending letter was taken down quickly, but too late…. the damage was already done.

The place is in turmoil, and seasoned observers of Wirral Council have interpreted this behaviour as a calculated ‘shot across the bows’ of any existing staff, who may have been considering following in the footsteps of Martin Morton, Andy Campbell and the person involved in this case, Gary Downey (who is one of a group of courageous and as yet unnamed whistleblowers).

As far as Wirral Council are concerned the watchwords are ‘Whistleblower Beware’, given that those prepared to act in the public good seem to have been branded as troublemakers, threatened and hounded out of their jobs, had their identities unfairly revealed or had their personal health and wellbeing put through the mincer.  Compare this if you will to the treatment given to abusive senior officers.  As the anniversary of the Anna Klonowski Report passes, the abusers’ real identities are still jealously guarded, having been replaced by numbers – which cleverly subverts the pesky little process known as ‘Accountability’.

So a big thank you to the LGA ‘Improvement’ Board – whom I assume must have been endorsing the council’s crazed, swivel-eyed, tongue lolling, anti-democratic practices.  More depressing legal news reaches me connected to the behaviour of this woeful bunch.

Watch this space for updates.  The request is currently with Surjit Tour, new boss of Legal who, along with 3 other staff, has taken up the department’s workload since Bill Norman, former Director of Law, was recently paid off.

Here is the FoI request:

http://www.whatdotheyknow.com/request/copy_of_letter_published_on_webs#incoming-330708

UPDATE   12th November 2012

As you’ll see, there’s no real urgency attached for them, and it’s taken four months to acknowledge receipt.   Once again, they’re in breach of the Freedom of Information Act.

“Tell us something new” I hear you saying.

UPDATE   29th November 2012

The ICO have been in touch, telling me that they’ve contacted Wirral Council by letter and given them 10 working days from receipt of the letter to either furnish the information or provide a valid reason for not doing so:

PROTECT

29 November 2012

Case Reference Number FS50475062

Dear Mr Cardin

Your information request to Wirral Metropolitan Borough Council

Thank you for your correspondence dated 6 October 2012 in which you complain about Wirral Metropolitan Borough Council’s failure to respond to your information request which is outlined below;

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

When considering complaints about delayed or failed responses to information requests our priority is to ensure requesters receive a response as quickly as possible (where one has not been provided) and to monitor any persistent trends which might indicate that a public authority was routinely failing to respond within the statutory 20 working days permitted under section 10 of the Freedom of Information Act.

We monitor complaints where a serious contravention of section 10 is recorded and where persistent contraventions occur we will consider placing a public authority on our monitoring programme (http://www.ico.gov.uk/what_we_cover/promoting_openness/monitoring_compliance.aspx ).

I have written to the public authority to provide them with a copy of your original request, reminding them of their responsibilities and asking them to respond to you within 10 working days of receiving our letter. I enclose a copy of my letter to the public authority for your information. The late response will be recorded and as described will form part of our ongoing activity to consider the performance of public authorities and the Freedom of Information Act in the future.

Should you wish the Information Commissioner to issue a decision notice for your specific complaint we are able to do so, however it is important to note that the Commissioner does not need to serve a decision notice in an individual case in order to use that case as evidence for enforcement action.

If Wirral Metropolitan Borough Council responds and refuses to release the information you have asked for and you are dissatisfied, you may, after exhausting their internal complaints procedure, complain to us again.

I have enclosed a fact sheet explaining more about our complaint handling procedures. At this point the case has been temporarily closed and I would like to thank you for bringing this these concerns to the attention of the Information Commissioner. If you do not receive a response within 10 working days please contact us quoting the reference number on this letter.

If you require any further assistance then please contact me on the number below.

Yours Sincerely

[Officer name redacted]
Case Officer
First Contact
Information Commissioner’s Office

UPDATE   18th January 2013

I gave them plenty of opportunity to respond (6 weeks plus), but nothing’s arrived – so I’ve sent the following to the ICO today:

From: Paul C
Sent: 18 January 2013 09:33
To: ‘casework@ico.gsi.gov.uk’
Subject: RE: ICO Response Re: Information request to Wirral Metropolitan Borough Council[Ref. FS50475062]

Dear [Case office name redacted]

Wirral Council has failed to provide the information connected to this request, despite you writing to them several weeks ago.

In my own experience there have been several persistent contraventions and I thank the ICO for placing this organisation onto the current monitoring programme.

I would now request that you issue a Decision Notice with regard to this request in order to bring them into compliance with the Freedom of Information Act.

I look forward to receiving a response from you in good time,

Best regards,

Paul Cardin
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Compromise Agreements ~ Their Impact on Equal Pay Claims

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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.

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Wirral Council’s 4 Week Delay helpline investigation – was it ‘INDEPENDENT’?

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Between October 2008 and August 2010 (according to newly released information), Wirral Council’s Department of Adult Social Services imposed a blanket 4 week delay on Community Care Packages.  It appears this measure was brought in to save money – a situation which according to then council leader Jeff Green, was unlawful.

As new applicants came in for assessment, an “obstacle to care” had been put in the way; the system relied upon a senior manager “waiving the delay” in order to allow a service user to secure care services quickly.  However, if the manager decided not to waiver, the delay would kick in by default every time and the person in need of an assessment for care would not be considered for it until the 4 weeks was up.

Former DASS employee and whistleblower Andy Campbell approached the council in 2011, and was greeted by a wall of resistance.  Their inertia caused him to turn to the media, including Community Care magazine.  Within the following article is the opinion of the magazine’s legal expert Ed Mitchell, who states, “The courts will afford a council a reasonable period of time to put a care service in place as they recognise that services cannot be conjured up out of thin air. But a policy of not even beginning the process of securing services until a set period of time has elapsed cannot be considered lawful.”

http://www.communitycare.co.uk/Articles/13/09/2011/117431/whistleblower-says-council-ordered-care-packages-delay.htm

When approached, Interim Director of DASS, Howard Cooper CBE, nearing retirement at the time, lurched immediately onto the back foot.  He referred to “misinterpretation”, “unclear advice to employees” and couched his words very carefully in dubious, non-specific denials.  There wasn’t an admission of guilt, and to this day, despite the death of one Wirral lady, there has never been a statement of regret, let alone a public  apology.

Very soon after ‘the heat began to rise’, the policy was quickly withdrawn.

Have a look at this Freedom of Information request, seeking information on the council’s helpline and the provision of a report, lodged back in May 2012:

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

An answer finally arrived after 112 working days on 10th October 2012.  There are two links to the information.  The first, “Leader’s Meeting 27th April 2012” is so heavily obliterated, it now makes very little sense at all:

http://www.whatdotheyknow.com/request/116035/response/319894/attach/html/3/20121008155450390.tif.html

The second link is to the report itself:

http://www.whatdotheyknow.com/request/116035/response/319894/attach/html/4/foi%20helpline%20report.doc.html

Apart from being very low quality and poorly laid out, the general thrust of the document appears to rely on these events being “all a long time ago” and is buried in the blandest of language.  The words serve to paper over the cracks, and appear to represent a self-imposed clean bill of health for the Council, despite its involvement in what many regard to be highly dangerous activity – the deliberate placing of financial savings ahead of the safety of vulnerable people.   There is no acceptance of any wrongdoing; no reference to illegality; indeed the following excerpt shows the report concluding with a blithe watering down of the controversy; no mention of any deaths, and a tendency towards the tired, but trusty chestnut of  ‘looking forward rather than back’.  In summary, a desire by the curiously unnamed [therefore unrepresentative] “independent reviewer” to conclude matters, and put all this behind them:

See the following link to a Wirral Globe article for the true human cost of the council risking people’s lives in this way:

http://www.wirralglobe.co.uk/news/9585095.DELAY_SCANDAL__Wirral_man_s_despair_as_his_mother_died_after_waiting_for_care_package/

Following this revelation, there was lots of fighting talk and “standing for no nonsense” by the Council leader at the time, Jeff Green, but predictably with this tired and broken set up, it seems to have been all for show, with the whole affair apparently ending not in a bang, but a whimper.

There’s been zero accountability for the manager concerned, who had taken it upon himself to sideline care, and to sacrifice empathy and basic humanity in favour of conserving cash.  Rick O’Brien, has been moved elsewhere but has never been openly linked or associated with these events by the council, who have defaulted back to pre-Klonowski “machinations”, opting to shield, deny, minimise, obfuscate, give very little away and to cover up ~ all done in order to stay one step ahead of the legitimate and compelling public interest ~ the centrepiece of which is…. accountability.

Despite the council’s historical litany of on the record fudges and denials, here’s a revealing link to details of a meeting that took place to discuss how the 4 week delay was operating and how cost savings were stacking up – in other words, a “smoking gun”.  This document was later uncovered as part of an FoI request:

http://www.whatdotheyknow.com/request/97832/response/260635/attach/html/3/Budget%20Mtg%2023.10.08.doc.html

UPDATE   5th November 2012

The FoI request relating to this  was lodged back in May.  Here we are approaching Christmas and Wirral Council are unable to break out of their old dyed in the wool inability to comply with public Freedom of Information requests.

This one has now been appealed with the Information Commissioner.  The following message was posted up on the WhatDoTheyKnow site on 14th October 2012:

Dear InfoMgr, FinDMT,

I am not satisfied with your response, which is inadequate and once
again is in breach of the FOIA.

You are incorrect and mistaken in offering me a SECOND internal
review, having ignored my first review request, made in July 2012.
It is now my statutory right within the Act to appeal to the ICO
against the information which you eventually got round to
supplying.

The information referred to in the “Leader’s Meeting” link is not
considered and selective, and has been very heavily and incorrectly
obliterated, breaching DPA guidelines. Your actions therefore do
not represent a desire to protect personal privacy and identities
and have encompassed far more, by placing obstacles in the path of
the free and fair flow of information.

You have failed to identify the name and organisation of the
“independent investigator”. Protecting such an individual’s
privacy, if that was your intention, also flies in the face of all
concepts of openness and the legitimate public interest.

I will now be appealing to the Information Commissioner,

Yours sincerely,

Paul Cardin

UPDATE   15th December 2012

The ‘Independent Reviewer’ has since been unmasked as someone named Rob Vickers.  He used to work at St Helens Council as an Assistant Director of Commissioning, but a large number of emails (reproduced below) omits any mention of his council background (perhaps doing so would be unhelpful?), preferring to describe him as some sort of free agent, with no axe to grind, self-employed / a sole-trader.

Whatever his history, whatever his current allegiances, they’re pushing the ‘this person has nothing do with the council’ line.  I can’t seen any investigatory credentials, and the wider public, expecting impartiality, may be concerned that Mr Vickers, an undeclared former council employee, has not been able to supply any information up front to reassure them that he has no prior affiliation with abusive Wirral Council (scroll to 7.1).

So… the abusive council wants us to trust them again, and to believe that without this crucial piece of the jigsaw, Rob Vickers can be regarded as an independent party, i.e. somebody whose impartiality can be relied upon.  Whoever commissioned Rob Vickers seems to be following the cue of Jeff Green and Anna Klonowski before them.  But that’s not good enough.

We were were not born yesterday.  AKA and the then Wirral administration may have preserved their own interests ‘going forward’ (£historical governance training, the £supplementary and £full reports, ongoing £assistance, et al), but this is post-Klonowski, post-Refresh and Renew with a demanding local public who have been promised openness, transparency and everything done above board – not a reactionary lunge back to the bad old days of black holes, uncertainty, inertia, nods and winks – and controversial issues entrusted to shadowy agents of independence, operating under “no trading name”.

Here are the emails:

From: Rowley, Stephen
Sent: 13 December 2012 08:37
To: Paul C
Cc: Hodkinson, Graham R.; Jones, David N. (Social Services QAU)
Subject: RE: FoI request

Dear Paul

I thought I had already replied to your email, I do apologise as that was clearly not the case.

I have spoken to Rob Vickers and he confirmed that his organization had no trading name as he was a sole trader.  He also confirmed that he made no declarations regarding prior associations with Wirral Council. [my emphasis]

I hope this is of use to you.

I would say that I am leaving the employment of Wirral Council next week so if you have any follow up or other DASS related issues please send any emails to Graham Hodkinson copied to David Jones [redacted] in that way your requests will be picked up.

Kind regards

Stephen Rowley
Wirral Council
Department of Adult Social Services
Head of Finance and Performance Branch
Phone [redacted] Mobile [redacted]
E-mail
Visit our website: www.wirral.gov.uk
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From: Paul C
Sent: 06 December 2012 19:05
To: Rowley, Stephen
Cc: Hodkinson, Graham R.
Subject: FW: FoI request
Importance: High

Stephen,

You have still not responded to this, sent almost a month ago.

I would like a detailed answer, addressing the points if you’d be so kind,

Regards,

Paul Cardin

From: Paul C
Sent: 12 November 2012 22:26
To: ‘Rowley, Stephen’
Cc: ‘Hodkinson, Graham R.’
Subject: RE: FoI request

Stephen,

Do you have the name of his organisation, as requested?  And also, if available, the declarations he will have made before being commissioned, to prove no prior associations with Wirral Council?

Did he in fact make any?

Many thanks,

Paul

From: Rowley, Stephen
Sent: 12 November 2012 16:59
To: Paul C
Cc: Hodkinson, Graham R.
Subject: RE: FoI request

Hello Paul

Sorry for not getting back to you earlier on this issue.

The report author was Robert Vickers, Independent Investigator, who is self employed.

I hope this is off use to you.

Thank you
Stephen Rowley
Wirral Council
Department of Adult Social Services
Head of Finance and Performance Branch
Phone [redacted]
E-mail
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From: Paul C
Sent: 11 November 2012 00:04
To: ‘Rowley, Stephen’
Cc: ‘Hodkinson, Graham R.’
Subject: FW: FoI request

Dear Stephen,

Just a reminder about the email below, sent on 1st November, requesting the name and organisation of the independent reviewer / investigator referred to in the response to my FoI request.

I have appealed to the ICO, and this issue is a part of that appeal, but given Mr Hodkinson’s assurance stated below, I’d be very grateful if you could lift the secrecy, address the public interest, and find time to supply the information,

Many thanks,

Paul Cardin

From: Paul C
Sent: 01 November 2012 22:44
To: ‘Rowley, Stephen’
Cc: ‘Hodkinson, Graham R.’
Subject: RE: FoI request

Dear Stephen,

Apologies, I mixed this up with another report and made a mistake in requesting it again.  I DID receive a heavily redacted version of the report in question, which I am not happy with because I believe the council has overstepped the mark and breached DPA requirements, in obliterating a lot more information than could be described as personal and relevant to the Section 40 exemption.  I have appealed to the ICO regarding this.

On a related matter, can I refer you to Mr Hodkinson’s email below, dated 8th October 2012, in which he states he would be ‘happy for me …to have any other information that you want as long as it does not breach the confidentiality of individual vulnerable people or their relatives.’

Here is a link to assist you…

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

Please provide the name and organisation of the independent investigator referred to in the response to my FoI request,

Many thanks,

Paul

From: Rowley, Stephen
Sent: 01 November 2012 16:34
To: Paul C
Cc: O’Hare, Tracy J.; Hodkinson, Graham R.; Jones, David N. (Social Services QAU)
Subject: RE: FoI request

Dear Paul

Thank you for your email below; I understand from Graham that there is an issue that has been referred to the Information Commissioner but if there is something other that is still outstanding can you please let me know what it is and I will try to obtain the information for you.

Regards

Stephen Rowley
Wirral Council
Department of Adult Social Services
Head of Finance and Performance Branch
Phone [redacted]
E-mail
Visit our website: www.wirral.gov.uk
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From: Paul C
Sent: 30 October 2012 22:55
To: Hodkinson, Graham R.
Cc: O’Hare, Tracy J.; Rowley, Stephen
Subject: FW: FoI request

Dear Graham,

Still nothing heard.  Brave new world now looking uncertain from where I’m standing !

Regards,

Paul

From: Paul C
Sent: 22 October 2012 23:21
To: ‘grahamhodkinson@wirral.gov.uk’
Cc: ‘tracyohare@wirral.gov.uk’; ‘stephenrowley@wirral.gov.uk’
Subject: FW: FoI request

Dear Graham,

I’ve left it a fortnight, but haven’t heard anything regarding this report.

Can I also refer you back to the questions that were asked in my email below?

Regards,

Paul

———- Forwarded message ———-
From: Hodkinson, Graham R.
Date: 8 October 2012 14:04
Subject: RE: FoI request
To: Paul C
Cc: “O’Hare, Tracy J.” , “Rowley, Stephen”

Thank you for your request Paul.  I have asked for the matter to be dealt with, I would be happy for you to have a copy of the Investigation Report into this matter and for you to have any other information that you want as long as it does not breach the confidentiality of individual vulnerable people or their relatives.

Regards

Graham Hodkinson

Director of Adult Social Services

Wirral Council

T: [redacted]

E: [redacted]

Please save paper and only print out what is necessary.

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From: Paul C
Sent: 06 October 2012 09:14

To: Hodkinson, Graham R.
Cc: O’Hare, Tracy J.
Subject: FoI request

Dear Graham,

Further to our meeting of 28th September, please look at the following link to an FoI request dated 8th May 2012.  This asks for FOUR distinct items:

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

As you will see, I’ve received a Section 22 exemption from your people, quoting a “report” to be published before the end of the year, but nothing further, despite a request for further explanation sent back in early August.  Can you confirm whether the four items of information requested, in their entirety, are in fact held, whether a date has been confirmed for future publication, or whether they are published now on the council’s website?

Could you ask somebody to explain the latest situation; or point me towards them, thereby satisfying the original FoI request?

Many thanks,

Paul

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#FoI Request ~ to Wirral Council. Departure of CEO Jim Wilkie

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7th June 2012

This was the date of departure of Chief Executive Jim Wilkie from Wirral Council.

It occurred a few hours before the release on the 8th June of the long awaited damning District Auditor’s report into the multi-million pound HESPE Highways Contract – which was riddled with impropriety and downright dubious conduct by Senior Officers.

This was similar to the release of the Klonowski Report, where two Senior Employees, Maura Noone and Mike Fowler (Employees 13 and 22 within the report), who had been involved in extremely dubious practice, where the bank accounts of learning disabled people had been emptied of more than £700,000 over several years – as originally reported by whistleblower Martin Morton, were allowed to leave the day before the so-called ‘full’ report was released.

A prominent figure, heavily involved in either allowing these people to return to work (in 2008), and later permitting them to leave their employment without any redress or disciplinary sanction was the Council Leader, Councillor Phil Davies.

He has been seen time and again to preside at meetings which have voted for the outrageous option of bypassing the disciplinary procedures, and providing a clean bill of health, before paying people off with often 6 figure sums and gagging them within compromise agreements.  This tactic protects the abusive senior officers involved, but condones their abuse, rewards it and thereby enables it to occur again in the future.

Most people would view this as downright dangerous, and conduct unbecoming of a council which is statutorily required to advance and protect the welfare of vulnerable and disabled people living within its jurisdiction.  But the stakes here are extremely high.  Very senior council officers are protected from prosecution in this way because the threat of being outed as complicit in the abuse is ‘buried as deep as nuclear waste’.

Only the High Court or a Public Enquiry can prise open a compromise agreement to see what nasties are concealed within it.

Here is the FoI request:

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

Dear Wirral Metropolitan Borough Council,

Today, CEO Jim Wilkie received permission by 7 votes (Labour & Lib
Dem) to 3 votes (Conservative) to leave his employment at the
council via EVR (Early Voluntary Retirement).

http://www.wirralglobe.co.uk/news/974093…

Above is a link to a news story published VERY recently in the
Wirral Globe, which reported this matter.

Mr Wilkie himself admitted to years of learning disabled abuse by
the council, and 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:

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

The Wirral public are 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 – as yet 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 Wilkie. This will relate to meetings, hearings,
discussions, and may be stored in the form of recorded minutes,
verbatim and non-verbatim notes, emails, letters, memos, aide
memoirs, whether electronically or manually.

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

Please confirm details of the existence of any “compromise
agreement” or “confidentiality agreement” signed by Mr Wilkie 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.

Please provide the names and addresses of all organisations /
bodies involved in providing legal advice to Mr Wilkie. 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 Wilkie in relation to any failures /
malpractice / abuse which brought about his departure from the
Council.

If Mr Wilkie 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.”

Yours faithfully,

Paul Cardin

6th July 2012 ~ No response received ~ internal review requested below

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 ‘Agreed Departure of
Chief Executive Officer Jim Wilkie on 7th June 2012’.

You have failed to respond to this request. As you are now in
breach of the Act, please ask a qualified individual to perform an
internal review of this request.

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

Yours faithfully,

Paul Cardin

UPDATE   3rd August 2012

Email in from Wirral Council:

Good Morning,

Wirral Borough Council acknowledges your request for information and
further correspondence regards your enquiry and apologies for the delay in
response.  Your request is with the department of Law HR and asset
management and we will respond with any information we can provide as soon
as this information is available.  Thank you for your enquiry.

Kind regards
Tracy O’Hare
Information Management
Wirral Council

UPDATE   5th October 2012

Appealed today with the Information Commissioner.

UPDATE   29th November 2012

The ICO have been in touch, telling me that they’ve contacted Wirral Council by letter and given them 10 working days from receipt of the letter to either furnish the information or provide a valid reason for not doing so:

PROTECT

29 November 2012

Case Reference Number FS50467476

Dear Mr Cardin

Your information request to Wirral Metropolitan Borough Council

Thank you for your correspondence dated, 5 October 2012 in which you complain about Wirral Metropolitan Borough Council’s failure to respond to your information request outlined below:

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

When considering complaints about delayed or failed responses to information requests our priority is to ensure requesters receive a response as quickly as possible (where one has not been provided) and to monitor any persistent trends which might indicate that a public authority was routinely failing to respond within the statutory 20 working days permitted under section 10 of the Freedom of Information Act.

We monitor complaints where a serious contravention of section 10 is recorded and where persistent contraventions occur we will consider placing a public authority on our monitoring programme (http://www.ico.gov.uk/what_we_cover/promoting_openness/monitoring_compliance.aspx ).

I have written to the public authority to provide them with a copy of your original request, reminding them of their responsibilities and asking them to respond to you within 10 working days of receiving our letter. I enclose a copy of my letter to the public authority for your information. The late response will be recorded and as described will form part of our ongoing activity to consider the performance of public authorities and the Freedom of Information Act in the future.

Should you wish the Information Commissioner to issue a decision notice for your specific complaint we are able to do so, however it is important to note that the Commissioner does not need to serve a decision notice in an individual case in order to use that case as evidence for enforcement action.

If Wirral Metropolitan Borough Council responds and refuses to release the information you have asked for and you are dissatisfied, you may, after exhausting their internal complaints procedure, complain to us again.

I have enclosed a fact sheet explaining more about our complaint handling procedures. At this point the case has been closed and I would like to thank you for bringing this these concerns to the attention of the Information Commissioner. If you do not receive a response within 10 working days please contact us quoting the reference number on this letter.

If you require any further assistance then please contact me on the number below.

Yours Sincerely

[Officer name redacted]
Case Officer
First Contact
Information Commissioner’s Office

UPDATE   11th December 2012

Email to ICO, sent tonight:

Case Reference Number FS50467476

Dear [officer name redacted],

I have heard nothing from Wirral Council. I believe the 10 working days that you specified are now up.
I originally lodged this request in June, but have received nothing whatsoever, apart from empty assurances.

I’d be very grateful if you could acknowledged receipt of this email and act upon the situation by taking it to the next stage,

Best regards,

Paul Cardin

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UPDATED ~ Wirral Borough Council’s Ex-CEO, Steve Maddox. Controversial early departure

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Glasses and a top hat uid 1460650

UPDATE   December 2012

This request appeared on the ICO’s highlights for the year 2012, in the NORTH WEST section:

http://www.ico.gov.uk/news/latest_news/2012/ico-highlights-information-revealed-by-foi-in-your-area-20122012.aspx

18th February 2012

This week, I received an important and favourable Decision Notice from the Information Commissioner – here

13 months ago, in early January 2011, I placed the following request via the excellent WhatDoTheyKnow website:

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

This asked for information related to the circumstances in which the former CEO had apparently applied for early voluntary redundancy.  The matter had been presented for discussion at the following special committee meeting on 17th August 2010:

http://democracy.wirral.gov.uk/ieListDocuments.aspx?CId=197&MId=3209&Ver=4

Here is the agenda:

http://democracy.wirral.gov.uk/documents/g3209/Public%20reports%20pack,%2017th-Aug-2010%2017.30,%20Employment%20and%20Appointments%20Committee.pdf?T=10

Item 3 was restricted, and if there were any members of the public present, they would have been cleared out of the room.

BUT… The Information Commissioner has now ruled, after 13 months, that the report held here needs to be released by the Council. They were wrong to withhold the information and to place these restrictions on it.

This is the ICO Decision Notice, #FS50406724:

http://www.easyvirtualassistance.co.uk/18 02 12 – ICO Decision notice – Maddox retirement.PDF

The ICO has given the council 35 days from 15th February 2012 to supply me with the report.  Failure to do so may be reported to the High Court and treated as contempt.

Both myself and the council have the option of appealing any aspect of this decision notice to the First Tier Tribunal.

Watch this space for updates.  The report will appear here when I have it.

The report is now in.  Click here:

http://www.easyvirtualassistance.co.uk/Maddox withheld EVR request.pdf

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

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

The request goes as follows:

Dear Information Commissioner’s Office,

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

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

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

Yours faithfully,

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

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

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

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

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

I hope this information is of some interest and assistance.

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

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

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

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

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

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

Yours faithfully,

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

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

Dear …….

Case Reference Number IRQ 0421243

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

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

We are therefore able to disclose the following to you:

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

05/06

04/05

03/04

02/03

230/10/10/10/1

0/1

2

0/1

0/1

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

0/1

0/1

0/1

0/1

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

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

Yours sincerely

David Smith 

Deputy Commissioner

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

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

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

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


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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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