Charity 267386 NARCONON - any action taken?

William Thackeray made this Freedom of Information request to Charity Commission for England and Wales

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William Thackeray

Dear Sir or Madam,

Re: Charity # 267386 - NARCONON

This charity is linked to Scientology, which has previously been refused charitable status.

It has turnover greater than £1m.

Both annual return and accounts are significantly (over a year) late.

Has the Charities Commission taken any action against this charity, and if not, why not?

Yours faithfully,

William Thackeray

Web Enquiries, Charity Commission for England and Wales

Thank you for your email to the Charity Commission.

We aim to give you a full and clear response within fifteen working days
from receipt of your email. We will ensure that our response is both
accurate and appropriate.

This is the same service standard we apply to letters and faxes but
Charity Commission Direct will usually respond to general email enquiries
within five working days where there is no need for referral to one of our
specialist operational teams.

If we cannot give you a full response within fifteen days, we will contact
you and let you know the reasons why this is not possible and indicate
when we expect to be in a position to give you a full response. We will
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your query.

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Jan Provost, Charity Commission for England and Wales

JP/CRM/ Information Compliance

Dear Mr Thackeray

Thank you for your email of 3rd February (copy below).

The Commission takes its regulatory responsibility extremely seriously and
when a charity is in default we will maintain regular contact to ensure
that the charity complies with its obligations as soon as possible.

I can confirm that the Commission is currently in contact with the charity
in regard to the outstanding documentation. The charity's responses to the
Commission, in addition to the Commissions correspondence to the charity,
both amount to confidential information.

Section 41 of the Freedom of Information Act states where the information
is provided in confidence, the information is Exempt from disclosure. In
the present circumstances the responses provided by a charity and the
contact in relation to the Commissions active regulatory process, which
are taken to ensure the proper lodgement of required documentation, must
implicitly include a condition that the information will not be passed by
the Regulator to any third party and this must be the expectation of those
responsible for lodging that information.

If you are unhappy with our response to your FOI request, have a complaint
or wish to request a review of our FOI decision, you should write to:
Charity Commission Direct, PO Box 1227, LIVERPOOL, L69 3UG. Please state
what it is you are dissatisfied with, which will assist us when we review
our response.

If after this you remain unhappy with the decision, you may apply directly
to the Information Commissioner (ICO) for a decision. Generally, the ICO
cannot make a decision unless you have exhausted our complaints procedure.
The Information Commissioner can be contacted at: The Information
Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshire SK9
5AF.

Yours sincerely
Ms Jan Provost (Compliance Manager)

------------------- Original Message

show quoted sections

William Thackeray

Dear Jan,

Thank you for your email of Feb 24th.

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Charity Commission for England and Wales's handling of my FOI request 'Charity 267386 NARCONON - any action taken?'.

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

My reason for requesting a review is:

I see no reason why "the responses provided by a charity and the contact in relation to the Commissions active regulatory process", ... "must implicitly include a condition that the information will not be passed by the Regulator to any third party".

I.e. I do not agree that there is an implicit condition that correspondence between the Commission and a charity concerning irregularities at that charity should remain confidential.

On the contrary, I believe there is a strong public interest in information about irregularities in the running of charities being available to the public.

Please provide:

1)

A reference to the legislation in which the Commission believes that this condition implicitly exists.

2)

The legal advice which leads the Commission to believe that it has the power to infer the existence of a condition such as this which is not explicitly present in legislation.

Thank you for your time and attention on this matter.

Yours sincerely,

William Thackeray

Web Enquiries, Charity Commission for England and Wales

Thank you for your email to the Charity Commission.

We aim to give you a full and clear response within fifteen working days
from receipt of your email. We will ensure that our response is both
accurate and appropriate.

This is the same service standard we apply to letters and faxes but
Charity Commission Direct will usually respond to general email enquiries
within five working days where there is no need for referral to one of our
specialist operational teams.

If we cannot give you a full response within fifteen days, we will contact
you and let you know the reasons why this is not possible and indicate
when we expect to be in a position to give you a full response. We will
also let you have the name and contact number of the person dealing with
your query.

You can find the Commission's contact details on our website at
[1]http://www.charitycommission.gov.uk/tcc/...

This email and any files transmitted with it are confidential and intended
solely for the use of the individual or entity to whom they are addressed.

If you have received this email in error please notify the sender and
delete
the original message from your system.

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Communications via the GSi may be automatically logged, monitored and/or
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References

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1. http://www.charitycommission.gov.uk/tcc/...

Jan Provost, Charity Commission for England and Wales

JP CRM 267386 Information Compliance

Dear Mr Thackeray

Thank you for your below email. As you have asked for further information
this has been assessed as a new Freedom of Information request rather than
a Freedom of Information review.

In reply to point 1

The Commission does not believe there is automatically an "implicit"
condition that applies a duty of confidence, as we have indicated this
depends on the circumstances.

In reply to point 2

The approach the Commission has adopted is based upon the Law, and the
awareness guidance that has been produced by the Information Commissioners
office. Please see the following link.

[1]http://www.opsi.gov.uk/acts/acts2000/ukp...

I hope this has addressed your further questions however, if you are
unhappy with our response to your FOI request, have a complaint or wish to
request a review of our FOI decision, you should write to: Charity
Commission Direct, PO Box 1227, LIVERPOOL, L69 3UG. Please state what it
is you are dissatisfied with, which will assist us when we review our
response. If you request a Decision Review you will be notified of our
final decision.

If after this you remain unhappy with the decision, you may apply directly
to the Information Commissioner (ICO) for a decision. Generally, the ICO
cannot make a decision unless you have exhausted our complaints
procedure. The Information Commissioner can be contacted at: The
Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire SK9 5AF.

Yours sincerely

Ms Jan Provost (Compliance Manager)

Dear Jan,
Thank you for your email of Feb 24th.
Please pass this on to the person who conducts Freedom of
Information reviews.
I am writing to request an internal review of Charity Commission
for England and Wales's handling of my FOI request 'Charity 267386
NARCONON - any action taken?'.
A full history of my FOI request and all correspondence is
available on the Internet at this address:
[2]http://www.whatdotheyknow.com/request/ch...
My reason for requesting a review is:
I see no reason why "the responses provided by a charity and the
contact in relation to the Commissions active regulatory process",
... "must implicitly include a condition that the information will
not be passed by the Regulator to any third party".
I.e. I do not agree that there is an implicit condition that
correspondence between the Commission and a charity concerning
irregularities at that charity should remain confidential.
On the contrary, I believe there is a strong public interest in
information about irregularities in the running of charities being
available to the public.
Please provide:
1)
A reference to the legislation in which the Commission believes
that this condition implicitly exists.
2)
The legal advice which leads the Commission to believe that it has
the power to infer the existence of a condition such as this which
is not explicitly present in legislation.
Thank you for your time and attention on this matter.
Yours sincerely,
William Thackeray

This email and any files transmitted with it are confidential and intended
solely for the use of the individual or entity to whom they are addressed.

If you have received this email in error please notify the sender and
delete
the original message from your system.

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Communications via the GSi may be automatically logged, monitored and/or
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References

Visible links
1. http://www.opsi.gov.uk/acts/acts2000/ukp...
2. http://www.whatdotheyknow.com/request/ch...

William Thackeray

Dear Jan,

Thank you for your response. I request a decision review.

In respect of point 1, I asked for:

-- begin quote

1) A reference to the legislation in which the Commission believes that this condition implicitly exists.

-- end quote

You replied:

-- begin quote

The Commission does not believe there is automatically an "implicit" condition that applies a duty of confidence, as we have indicated this depends on the circumstances.

-- end quote

In my question, I was referring to your email of 24th February, in which you said:

-- begin quote

In the present circumstances the responses provided by a charity and the contact in relation to the Commissions active regulatory process, which are taken to ensure the proper lodgement of required documentation, *must* *implicitly* *include* *a* *condition* that the information will not be passed by the Regulator to any third party and this must be the expectation of those responsible for lodging that information.

-- end quote

I have highlighted the words "must implicitly include a condition" in your response, as your later response (saying that there is no such implicit condition) contradicts your earlier response (saying that there must be such an implicit condition).

Whether this condition is 'implicit' or not, you have not provided a reference to the legislation in which the Commission believes this condition exists. Please do so.

In respect of point 2, I asked for:

-- begin quote

The legal advice which leads the Commission to believe that it has
the power to infer the existence of a condition such as this which
is not explicitly present in legislation.

-- end quote

and you replied:

-- begin quote

The approach the Commission has adopted is based upon the Law, and the
awareness guidance that has been produced by the Information
Commissioners office. Please see the following link.
http://www.opsi.gov.uk/acts/acts2000/ukp...

-- end quote

The statement 'based upon the Law [sic]', with a reference to the FOI act, does not answer my question at all. I asked for "the legal advice which leads the Commission to believe that it has
the power to infer the existence of a condition such as this which
is not explicitly present in legislation."

As you have not answered my questions, I would ask you to read the questions again and revisit your answers, pending referral to the Office of the Information Commissioner.

Yours sincerely,

William Thackeray

Lilian Marshall , Charity Commission for England and Wales

1 Attachment

Dear Mr Thackeray,

Please see the attached letter.

<<20090327 - letter to Mr Thackeray.pdf>>
Regards,
Lilian Marshall

FDT Team
Charity Commission Direct, PO Box 1227, LIVERPOOL, L69 3UG
Direct Line: 01823 345077
Fax: 01823 345002
email: [email address]

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William Thackeray

Many thanks, Lilian. I appreciate your assistance with this matter.

Yours sincerely,

William.

Andrew Wherrett, Charity Commission for England and Wales

1 Attachment

Dear Mr Thackeray,

Please see attached letter

<<20090421 email to William Thackeray.doc>>

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William Thackeray left an annotation ()

Letter reads:

Mr William Thackeray0x08 graphic

by email only
[FOI #7594 email]

Charity Commission Direct

PO Box 1227, Liverpool L69 3UG

t: 01823 345094

f: 01823 345002

Your Ref:

Our Ref: AW/LT/708951

Date: 21 April 2009

0x08 graphic
Dear Mr Thackeray

Request for information under Freedom of Information Act ("FOI")

In your emails of 3 February 2009, 24 February 2009 and 20 March 2009, you ask a number of questions. I would like to confirm my understanding that your questions are:

1.

In respect of the annual return and accounts of Narconon, you said they were “significantly (over a year) late.” In respect of the annual return and accounts, you asked “has the Charities Commission taken any action against this charity?”
2.

If no action had been taken, you asked “if not, why not?”
3.

We provided a response and you asked us questions about the response. You asked for “a reference to the legislation in which the Commission believes that this condition [relating to confidence] implicitly exists”.
4.

You also asked for “the legal advice which leads the Commission to believe that it has the power to infer the existence of a condition such as this which is not explicitly present in legislation.”

Please let me know if I have not correctly understood your questions. As I understand your questions, I am pleased to be able to answer them in full.

In respect of your first question, there are two parts to the answer.

The first is to explain the process which is used when a charity's annual return and accounts are late. The Commission will write to the charity's correspondent, a person the charity has told us we should direct correspondence to. We write several letters at different stages in the accounts and annual returns process. Regarding the most recent annual return and accounts for the year ending in 2007 we have done the following:

*

On 4 January 2008, just after the financial year end, we wrote to the charity inviting them to submit an annual return, report and accounts;
*

On 5 August 2008, before the documents were due, we wrote to the charity reminding of the need to submit the annual return, reports and accounts by the due date.
*

On 31 October 2008 the documents became due;
*

On 15 November 2008, we wrote to the charity to tell them that the annual return, reports and accounts had not been received, that they were overdue, that failure to submit the documents is a serious matter and that defaulting charities are listed in the register of charities. We added that we would need to consider enforcement action if the documents are not provided.
*

On 9 February 2009, we wrote a reminder to the charity. In this letter we again explained that this was a serious matter. We added that we may take the continued failure to submit these documents as evidence that the charity has ceased to exist or does not operate. We warned that the charity may be removed from the Register of Charities in accordance with section 3(4) of the Charities Act 1993.

Since I understand that the Annual Return and Accounts for 2006 were overdue at the date of your original FOI request, I understand your question would include action taken in respect of those documents too. I can see from our records that in respect of the annual return, accounts and reports for the year ended in 2006, we took the following action:

*

On 27 February 2007, we wrote to invite the charity to complete the annual return, accounts and reports.
*

On 3 August 2007, we wrote a reminder to the charity.
*

On 21 November 2007, we wrote to the charity to inform them that the documents were overdue.

I do not believe your question is intended to relate to action taken in respect of any earlier Annual Returns or Accounts since they were not outstanding at the date of your request. If you do want information relating to action taken in respect of earlier Annual Returns or Accounts, you can of course make a further FOI request specifying the information you want.

Second, we have taken the following additional steps in order to have the 31 December 2006 and 2007 annual return, reports and accounts provided:

*

We contacted the charity following your FOI request, leaving a message on the charity contact's voicemail.
*

On 12 February 2009 we left a further message on the charity contact's voicemail.
*

On 20 February 2009 we telephoned the charity's contact who thought the Annual Return for the year ended 2006 had already been completed online. The charity's contact explained that the Annual Return for the year ended 2006 would be submitted in the following week.
*

On 4 March 2009, we received a call from the charity's correspondent. The charity could not access the Annual Return 2006 online.
*

On 9 March 2009, we emailed the charity's correspondent with an Annual Return 2006 to complete.
*

On 24 March 2009, we received a copy of the Annual Return 2006 which was not in a form we could accept since it was a print out of an online form rather than the form we had sent by email. We left a voicemail message for the charity's correspondent.
*

In a telephone conversation on 26 March 2006 we explained to the charity's correspondent that the emailed Annual Return for 2006 would need to be completed.
*

On 1 April 2009 we received the Annual Return for 2006.

2 You only asked this question if the Commission had taken no action. As you can see from my answer to your first question, action has been taken. This question does not arise.

3 The Freedom of Information Act 2000 provides the public with a right to recorded information held by a public authority. It does not require public authorities to create new information nor does it require public authorities to undertake and provide a legal analysis to questions posed about the interpretation of the law.

That said, you have asked us to clarify a view we offered in earlier correspondence and it is appropriate to explain. It seems to me most likely that we were referring to a principle which might loosely be summed up as follows: that information obtained under the threat of powers of coercion is likely to be held under an implied duty of confidence. Where that duty arises, it means the information can only be used for the purpose intended by the powers in question. The source for this principle is found in case law, not statute. Strictly, I believe the answer to your question is that there is no reference to legislation in which the condition exists.

Rather more constructively, in keeping with our duty under FOI to provide reasonable assistance and the overall spirit of this letter, I can give you a reference to case law which appears to be relevant to your question. An example the principle being applied can be seen in the Court of Appeal case, Marcel v Commissioner of Metropolitan Police [1992] Ch 225. The reference is the name of a case which can be found in the 1992 Chancery Division reports at page 225.

As you have seen, when I answered your first question I did not need to disclose confidential information. On reconsidering your first question, I have not needed to rely on the implied duty of confidence which you asked about in your third question. I have not needed to rely on the exemption under section 41 of the Freedom of Information Act 2000 which relates to confidential information.

4 On the files to which your question relates, there is no record of the content of legal advice beyond the following record “the content of any contact both Commissions and the charities comes under Section 41”. The record attributes this to legal advice.

I believe I have answered your questions fully. I have not applied any exemptions when providing you with the information you asked for.

If you have any further questions for us under FOI, please contact Charity Commission Direct.

Yours sincerely

Andrew Wherrett