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

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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…

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

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10th December 2012

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

UPDATE   18th August 2012

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

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

Dear Councillor McKie,

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

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

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

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

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

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

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

Many thanks,

Paul Cardin

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Alan McKie’s response:

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

Dear Mr Cardin

Thank you for your e-mail.

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

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

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

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

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

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

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

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

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

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

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

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

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

Regards,

Alan McKie

Alan McKie Cllr.

Weaver and Cuddington Ward

Cheshire West and Chester Council

Tel: 01928 724960

Mob: 07971832467

Email: alan.mckie@cheshirewestandchester.gov.uk

Visit: cheshirewestandchester.gov.uk

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

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

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

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

Comment posted to David Higgerson website from November 2011

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

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

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

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

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

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

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

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

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