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AA v. London Borough of Southwark [2014] EWHC 500 (QB) - settlement

We're waiting for V Scully to read recent responses and update the status.

Dear Southwark Borough Council,

I would like to request the following information under the Freedom of Information Act:

This week, the judgement of HHJ Anthony Thornton QC in the case of AA v London Borough of Southwark was handed down in the Queen's Bench Division of the High Court. (Neutral citation [2014] EWHC 500 (QB); case number HQ13X02922.)

The Council's employees were found liable for unlawful eviction, conspiracy, misconduct in public office, and negligence. (The judgment can be read in full here: http://www.bailii.org/ew/cases/EWHC/QB/2...) An out of court settlement was reached as to quantum before the start of the second trial, which was to determine the damages to be paid to AA. Please provide the following information:

1) How much was this settlement for?

2) If available, how was this settlement apportioned between exemplary, aggravated, special and general damages (and any other heads of loss)?

(I am aware that there is a limited anonymity order in place in relation to this case, but HHJ Thornton's judgment says it is "confined to the identity and precise address of the claimant". Nonetheless, if you would otherwise decline my requests under 1) or 2), I am content for you to round the figures in the settlement into an approximation to avoid any possibility of identifying him.)

3) What action has been taken against all of the council employees who have been criticised in the judgment in this case? In particular, those in paragraph 187 listed as "Mr Davis, Ms Okwara, Ms Ashley, Ms Maresch, Ms Marsh [and] Ms Scheibner" where it is said of them that "It is clear that all these officers knew, or had turned a blind eye to the fact that AA had been unlawfully evicted and that his possessions were still in the flat despite his having been evicted and that they were about to be removed and destroyed." I am also interested in the outcome for "Mr Ola Akinsola", who is mentioned in paragraph 196. If any other disciplinary action has been taken as a result of this case which is not covered by the rest of this request, please supply me with the outcome of that as well.

If, and only if, you are otherwise unwilling to supply me with this information, I will accept being told (e.g.) that 1 was dismissed for gross misconduct, 2 have undergone retraining etc.
I am aware that this might be considered personal information, however, I would urge you to consider the public interest element in relation to this: these are officers of the council who have been found to have committed misconduct in public office and a civil conspiracy by a High Court judge, and their names are already in the public domain as having done so in any case.

Please do not hesitate to contact me if you would like any further clarification or information in relation to my request. I am also sorry for the length of this request; I have been trying to focus my questions so that you only need to provide the information I am actually interested in.

Yours faithfully,

V Scully

Janet McDonald, Southwark Borough Council

Southwark Council - Information request

Our reference: 462923

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Dear Janet McDonald,

Twenty working days have now elapsed since you received my request, so you are now in breach of your statutory obligations to respond "promptly" or, in any event, within that period to my request.

Please initiate an internal review into the causes of this delay, and update me as to when you will have a final response for me.

Yours sincerely,

V Scully

Janet McDonald, Southwark Borough Council

1 Attachment

Southwark Council - Information request

Our reference: 462923

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McDonald, Janet, Southwark Borough Council

Dear V Scully

I acknowledge receipt of your email of 15 November 2014 received by me
today, 17 November 2014.

Your request was received on Monday 20 October 2014, the first day is 21
October, therefore 20 working days make the request due today, 17
November 2014.

You will have now received the Council's reply under separate cover.

Regards

Janet McDonald
Corporate Freedom of Information Manager
Finance & Corporate Services
P.O. Box 64529
London SE1P 5LX
Email: [email address]
Tel No: 020 7525 7511
Fax No: 020 3014 8598
P please consider the environment - do you really need to print this
email?

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Dear Janet,

In view of your response earlier today, I'm happy to drop my previous request for an internal review over the timing of your response.

However, I wish to request a further one over its content, for the purposes of which I have tried to set out my arguments as briefly as possible below:

In relation to my original question 1, as to the value of the settlement:

Your response to this is in breach of section 17(1)(b) of the Freedom of Information Act - I have an absolute right to know under which exemption you have refused me access to this data . There are no exceptions to this duty to inform me. Once you have told me which exemption you are purporting to rely on, I will provide further argument against this if it appears to me to be incorrectly applied in all the highly unusual circumstances of this case. There is no general exemption of "confidentiality", and even if there were, you would need to state the section of the FOIA it resided in.

In relation to question 3, as to any disciplinary action undertaken against named and other staff:

You are right that section 40(2) is not subject to a public interest test. However, sections 40(2) and 40(3)(1)(a) together only provide an absolute, unqualified exemption where one of the data protection principles under the Data Protection Act has been breached. The ICO's guidance, located here http://ico.org.uk/for_organisations/free..., at paras [32]-[38] demonstrates how only data protection principle 1 is in fact engaged, so I will deal only with that here - should your internal reviewer wish to rely on any other principle under section 40(2), then I will be glad to provide fuller submissions on that point upon request.

In argument here, I will follow the ICO's approach to assessing whether to disclose under the first data protection principle, available at para 39 and following of the above link, which is supported as the correct approach by the cases they cite in that guidance. You must start by considering whether it is "fair": the ICO cite the relevant factors as being whether the information is "sensitive", the potential consequences of disclosure, reasonable expectations of the subject, and the legitimate interests of the public (and an ultimate balancing exercise). I do not consider that my request for anonymised data amounts to personal data within the DPA/s 40 FOIA at all, and I would like you to address that point in addition.

This information cannot be considered sensitive under s 2 of the DPA. It is certainly not under (g): it is not "personal data consisting of information as to...the commission or alleged commission of an offence" since, firstly, these are civil proceedings, and any crimes committed by your officers diverge from the (admittedly similar) torts the employees were found to commit, both in content and the requisite burden of proof. Secondly, it is not personal data AS TO that: they have been named in the judgment. Subsequent disciplinary proceedings are at best ancillary as to the commission of these torts, not to any crimes. Given this, I will not consider whether any of the Schedule 3 conditions of the DPA apply to this information.

The adverse consequences on employees of the disclosure of this data are relatively minimal: having publicly known the results - even anonymised! - of the disciplinary proceedings surely pales into comparison next to being found to have individually committed egregious misconduct in public office (and so on) by the High Court, which information is freely in the public domain on the Bailii website in perpetuity. For the employees, their proven misconduct might again be publicly highlighted, but it is important to bear in mind that this is very much an adverse effect that they have brought upon themselves. Of course, if they were exonerated by the tribunal, then disclosure would in fact have a positive effect on the employees, since they would not longer be as associated with a proven incidence of misconduct.

Your officers are in a public position, and have been publicly found to have committed misconduct. It is hard to see that they would have a great expectation of privacy at the subsequent disciplinary proceedings, though given the inadequacy of the reasoning you supplied in response to this request, it is hard to respond with any specificity. There is of course a general expectation of privacy in disciplinary proceedings, but in a case of such appalling wrongdoing, that is not conclusive of the data protection principle of whether it is "fair" on the data subject to disclose this information to me. At the balancing of interests stage, I would invite you to look at para [80] and following of the ICO's guidance above: this is clearly a case where there is an overriding public interest in disclosure, for obvious reasons: this is the worst case of public authority wrongdoing I have read about in a very long time, involving a concerted cover-up, and appalling failures right up to trial in discharging, for example, the council's disclosure obligations in relation to the internal report. It is important for the public to know what eventually happens to people who have committed such awful wrongs, and to find out whether or not the council has just ignored the High Court and let these employees - so clearly unsuited to public-facing roles dealing with the most vulnerable in society in social housing - continue working as they did before, with no repercussions from their proven conspiracy (etc.).

As to the schedule 2 DPA condition to permit disclosure once it is regarded as "fair", I would like to rely on condition 6. I have already covered the legitimate interest test and the residue of individual harm caused is certainly not "unwarranted", for the reasons explained above. Therefore, I only want to address here the question of necessity of disclosure: as explained in the case of Corporate Officer of the House of Commons v the Information Commissioner and Ben Leapman, Heather Brooke and Michael Thomas (EA/2007/0060-63, 0122-23 & 0131, 26 February 2008), this requirement is about whether it is necessary (in the sense that nothing else will do) to achieve a legitimate aim, and whether nonetheless that disclosure is proportionate to that aim. It is submitted here that only knowing the results of the disciplinary tribunals, even if that is in "2 dismissed, 3 no action" etc. form (which is very much my fall-back position), is going to be enough to satisfy the public interest as described above. The limited adverse effects on these employees are not disproportionate to the overriding public interest in knowing about the outcome to those involved in this truly exceptional case.

For the avoidance of doubt, I am satisfied that you do not hold the information requested in question 2, so I am not asking for an internal review into that answer. However, I am not satisfied that you initially provided adequate reasons in relation to section 40 for refusing my request number 3, as required by section 17(1)(c) of the FOIA, and I am certainly not satisfied that you complied with your section 17 obligations in relation to request 1. I am willing to be contacted at any point to clarify any of the issues I have raised in this request for an internal review or my original request. Please acknowledge my request for an internal review as soon as possible, and let me know when it will be completed by.

Yours sincerely,

V Scully

McDonald, Janet, Southwark Borough Council

Thank you for your email.  I am out of the office until Thursday 20
November 2014. I will not have access to emails and will respond on my
return.

E mails will not be read in my absence. 

If you have a Freedom of Information or Data Protection request please
forward the item to [Southwark Borough Council request email] where colleagues will
filter and progress as necessary.

 If you need to speak to someone urgently please contact Jo Anson on 020
7525 4308 or Lisa Quarrell on 020 7525 4372.

Regards

Janet

The email you received and any files transmitted with it are confidential,
may be covered by legal and/or professional privilege and are intended
solely for the use of the individual or entity to whom they are addressed.
If you have received this in error please notify us immediately. If you
are not the intended recipient of the email or the person responsible for
delivering it to them you may not copy it, forward it or otherwise use it
for any purpose or disclose its contents to any other person. To do so may
be unlawful. Where opinions are expressed in the email they are not
necessarily those of Southwark Council and Southwark Council is not
responsible for any changes made to the message after it has been sent.

Lisa Quarrell, Southwark Borough Council

Southwark Council - Information request

Our reference: 462923

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Dear Lisa Quarrell,

My internal review has now taken longer than the 20 working days specified to be completed - could you please let me know when it will be finished?

Best wishes, and a Merry Christmas to you and your team.

V Scully

Quarrell, Lisa, Southwark Borough Council

Thank you for your email.

 

I am out of the office until 5 January. I will respond to you on my
return.

 

Many thanks,

Lisa

 

The email you received and any files transmitted with it are confidential,
may be covered by legal and/or professional privilege and are intended
solely for the use of the individual or entity to whom they are addressed.
If you have received this in error please notify us immediately. If you
are not the intended recipient of the email or the person responsible for
delivering it to them you may not copy it, forward it or otherwise use it
for any purpose or disclose its contents to any other person. To do so may
be unlawful. Where opinions are expressed in the email they are not
necessarily those of Southwark Council and Southwark Council is not
responsible for any changes made to the message after it has been sent.

Quarrell, Lisa, Southwark Borough Council

Dear Mr/Ms Scully,

Happy New Year and thank you for your Christmas wishes! I have been on leave for the Christmas period; please do accept my apologies for not updating you as to the progress of your internal review before I left the office. I am hopeful that my review will be complete this week and that I will be able to respond to you in full by Friday 9 January. I will email you as soon as possible if I anticipate further delay and I will of course respond to you before Friday if I can.

I hope this is helpful - please do not hesitate to contact me if I can be of further assistance.

Yours sincerely,

Lisa Quarrell

Information Governance Manager
020 7525 4372 | 07985 114357
Southwark Council | 160 Tooley Street | London | SE1 2QH

Postal address:
Southwark Council | Finance and Corporate Services | 2nd floor Hub 1 | PO Box 64529 | London | SE1P 5LX

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Dear Lisa,

Thank you for your email - not a problem; I'm just glad to know when you anticipate completing the review.

Best wishes for the New Year, and I look forward to hearing from you.

Best wishes,

V Scully

Quarrell, Lisa, Southwark Borough Council

Dear Mr/Ms Scully,

I write to apologise that I have been unable to finalise my response to you today; I had hoped that I would be in a position to send you a full response this evening but I am hopeful that I may be able to do so early next week. I will update you on Monday - I hope that is acceptable, with best wishes for the weekend.

Lisa

Lisa Quarrell

Information Governance Manager
020 7525 4372 | 07985 114357
Southwark Council | 160 Tooley Street | London | SE1 2QH

Postal address:
Southwark Council | Finance and Corporate Services | 2nd floor Hub 1 | PO Box 64529 | London | SE1P 5LX

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Dear Lisa,

Thank you for letting me know - I understand that it's a busy time of year!

Best wishes,

V Scully

Dear Lisa,

I was just wondering if you had any updates on when my internal review will be completed? I understand that it's a busy period, and that the time limits apply quite harshly over the Christmas holidays, but I make it 37 working days today since my internal review request was acknowledged, and the ICO's guidance on internal review states that they should only take up to 40 days, and then only in "exceptional circumstances".

I am, however, very grateful that you have been keeping me informed of progress and - as ever - I'm always happy to take requests for further clarification or information.

Best wishes,

V Scully

Quarrell, Lisa, Southwark Borough Council

Thank you for your email.

 

I am on a training course on 15 January with only intermittent access to
emails. I will respond to you as soon as I can.

 

Many thanks,

Lisa

 

The email you received and any files transmitted with it are confidential,
may be covered by legal and/or professional privilege and are intended
solely for the use of the individual or entity to whom they are addressed.

If you have received this in error please notify us immediately.

If you are not the intended recipient of the email or the person
responsible for delivering it to them you may not copy it, forward it or
otherwise use it for any purpose or disclose its contents to any other
person. To do so may be unlawful.

Where opinions are expressed in the email they are not necessarily those
of Southwark Council and Southwark Council is not responsible for any
changes made to the message after it has been sent.

Quarrell, Lisa, Southwark Borough Council

Dear Ms/Ms Scully,

Thank you for your email and your on-going patience while I conduct this review. I appreciate that the delay you have experienced has been significant; the delays have occurred because of the complexities of this case but please be assured that I am working on the review and that it continues to be a priority for me.

Please accept my apologies again for the time that it has taken me to conduct this review. I will update you on progress before close of business on Thursday when I hope to be able to provide more detail.

Many thanks,
Lisa

Lisa Quarrell

Information Governance Manager
020 7525 4372 | 07985 114357
Southwark Council | 160 Tooley Street | London | SE1 2QH

Postal address:
Southwark Council | Finance and Corporate Services | 2nd floor Hub 1 | PO Box 64529 | London | SE1P 5LX

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Tim Bullimore left an annotation ()

Dear Lisa,

Thank you for your email. I'm aware this case is complicated for you, however by the time you read this it will have been 50 working days since my internal review request was received by you, and over 70 since I requested this information back in October. Could you please give me a firm deadline of when my internal review will be completed?

I know my request has probably required more thought than most you receive, however the purpose of the Act is to ensure quick and easy access to information – and I have now been waiting 3 1/2 months. As ever, I'm grateful for you keeping me informed, and happy to assist you further in your enquiries if I can.

All best wishes,

V Scully

Dear Lisa,

By the time you read this email, it will have been 55 working days since you acknowledged my internal review request, and 75 working days when the clock has been running since my request (I exclude the 3 days between my sending and your receiving of my internal review request). You last promised me that I would have an update by 22 January - over two weeks after that, I am still waiting.

I mention this all to point out that I have been very patient in this request - at least in part because I understand the difficulties it may have caused. However, given the excessive amount of time that has lapsed, I now have no option but to refer this case to the information commissioner: this I will do if I do not receive a positive response to my request by the close of play this coming Friday, the 13th.

I might point out that you have not yet even complied with your section 17(1)(b) requirements in relation to part 1 of my original request of telling me what exception you were relying on in your refusal of my request! This is an absolute requirement, which you are in continual and inexcusable breach of (and which I pointed out in my request for an internal review back in November).

If you explain to me in detail why there are good reasons that you need any more time to complete the internal review, and set a specific deadline, I will of course be happy to reconsider my deadline for referral to the ICO.

Yours sincerely,

V Scully

Quarrell, Lisa, Southwark Borough Council

2 Attachments

Dear Mr/Ms Scully,

I write in response to your request for an internal review of our handling of your FOI request, our reference 462923.

Please find attached my full response to your request.

I acknowledge that the delays you have experienced have been wholly unacceptable and I can only apologise for not being able to respond to you sooner. I endeavoured to keep in touch regularly, to update you on my progress, and I further apologise for not having been able to do so over the last few weeks. You have been most patient and I have appreciated your understanding of the complexities of the case.

I hope that you find the response helpful.

Best wishes,
Lisa Quarrell

Lisa Quarrell

Information Governance Manager
020 7525 4372 | 07985 114357
Southwark Council | 160 Tooley Street | London | SE1 2QH

Postal address:
Southwark Council | Finance and Corporate Services | 2nd floor Hub 1 | PO Box 64529 | London | SE1P 5LX

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V Scully left an annotation ()

Update: I have requested a review of this matter by the Information Commissioner's Office, which I have given Southwark notice of. I will post updates as this progresses on here.

We don't know whether the most recent response to this request contains information or not – if you are V Scully please sign in and let everyone know.