Dear Mr Cardin,

I refer to your request for information contained in your email of 18
October 2012. Your request was as follows:-

Dear Wirral Metropolitan Borough Council,

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

[1]http://www.wirralglobe.co.uk/news/999130...

Above is a link to a news story published today in the Wirral Globe,
which reported this matter, along with the departure of the suspended
Director of Law, Bill Norman. Once again, the comments beneath the
article indicate the strength of feeling amongst a still outraged
public.  The former CEO, Jim Wilkie, who himself is the subject of another
freedom of information request, currently breaching the FOI Act:

[2]http://www.whatdotheyknow.com/request/ag...

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

[3]http://www.whatdotheyknow.com/request/da...

Despite the fine words trotted out in Appendix S2 of the Anna Klonowski
"Refresh and Renew" Supplementary Report, the Wirral public have still
yet to see any sign of accountability or a reckoning towards the as yet
anonymous employees who perpetrated this sustained abuse against learning
disabled people over a period of several years - which totalled over
£700,000 plundered from their bank accounts.  There were also abuses of
power, as found by two independent
investigations – but which remain unpunished, and an admission to
learning disabled abuse here (See 7.1):

[4]http://democracy.wirral.gov.uk/mgConvert...

Please provide all information you have which is connected to the
departure of Mr Garry. This will relate to meetings, hearings,
discussions, reports, and may be stored in the form of recorded minutes,
verbatim and non-verbatim notes, emails, letters, memos, aide memoirs,
documents, whether electronically or manually stored.  Please confirm and
provide full details of the existence of any payments made to Mr Garry in
relation to his departure. This will include precise amounts, the method
of payment and the budget from which the payment was / is to be derived.

Please confirm details of the existence of any "compromise agreement" or
"confidentiality agreement" or “compromise contract” or "confidentiality
contract" agreed and signed by Mr Garry in relation to this departure or
to his involvement in abuse or malpractice. This will include
confirmation and description of any 'gagging clauses' and whether a
positive / neutral / negative reference was provided regarding potential
future employment.  In light of the [strangely] recent discovery by
Wirral’s NOW EX-Chief Internal Auditor David Garry that “compromise
contracts”  were NOT being recorded but were being arranged behind closed
doors, beyond any councillor scrutiny and beyond view of the public:

[5]http://democracy.wirral.gov.uk/documents...

…please describe the exact process that was followed and supply the
documents, reports, aide memoirs, notes, etc. that were created and
recorded as part of the NEW process. Please take a deep breath before you
do this, and ponder your overriding duty to act not out of self-interest,
but fairly and impartially in the unbending service of us the public. 
Please provide the names and addresses of all organisations /bodies
involved in providing legal advice to Mr Garry. Please also
provide details of meetings which occurred including times, dates and
matters discussed.  Please confirm the details of any disciplinary charges
either planned or levelled against Mr Garry in relation to any failures
/malpractice / abuse which may or may not have brought about his
departure from the Council.

If Mr Garry was provided with a "clean bill of health" regarding his time
served at the council, please provide a copy of this /these document(s). 
Please redact documents as you see fit, and remove any personally
sensitive information in accordance with the requirements of the Data
Protection Act.”

Please confirm which meetings have taken place. Presumably there will
have been at least one gathering called to scrutinise the so-called
"compromise contract" that was drawn up and agreed.

The Council did not respond to your original request and on 15 December
2012, you requested an internal review. A public authority is not obliged
to comply with a request for information if the request is vexatious.
(Section 14 (1) of the Freedom of Information Act, 2000) 

I am refusing your request for information as set out in your email of 18
October 2012, on the basis that your request is vexatious.

The Information Commissioner issued new guidance, Version 5 ,  in June
2012, “When can a request be considered vexatious or repeated?” On 28
January 2013, Mr Nicholas Wikely, Judge of the Upper Tribunal , issued his
decision in the case Information Commissioner V. Devon County Council and
Dransfield {2012} UKUT 440. This case decided that the public authority
had been entitled to rely on Section 14 (1) and gave a detailed analysis
of section 14 (1) of the Freedom of Information Act 2000. I have had
particular regard to this case in reaching my decision. Judge Wilkely 
stated that “vexatiousness may be evidenced by obsessive conduct that
harasses staff, uses intemperate language, …or is any other respects
extremely offensive”. I consider that in your request you have used
intemperate language in connection with a former officer of the Council,
and that the overall tone of your request is offensive , having regard to
the haranguing tone of the request.

I have also had regard to Paragraph 34 of Judge Wikeley ‘s judgment that
“the motive of the requester may well be a relevant and indeed significant
factor in assessing whether the request itself is vexatious.” Judge Wikely
refers to “what may seem an entirely reasonable and benign request may be
found to be vexatious in the wider context of the course of dealings
between the individual and the relevant public authority”. I have had
regard to the course of dealings between yourself and the Council. One of
the criteria referred to by the Information Commissioner in considering
whether a request can be vexatious is “Can the request fairly be seen as
obsessive?”. In the case referred to, Judge Wikely considered that the
First Tier Tribunal “had failed to consider the question of whether the
request was vexatious in the round” I consider that your request is
sufficiently linked to previous course of dealings with the Council in
respect of requests relating to compromise agreements. I consider that the
 volume and frequency of correspondence received from yourself concerning
compromise agreements can be fairly characterised as obsessive.

Having carried out an overall balancing exercise with respect to the
factors mentioned above,I consider that  your request for information is
vexatious and that  the Council is not obliged to comply with your request
for information  under Section 14 (1) of the Freedom of Information Act
2000. I have treated this response as an internal review.

If you are dissatisfied with this response to your request for
information, you have the right to complain to the Information
Commissioner. The address is the Information Commissioner’s Office,

Wycliffe House,

Water Lane,

Wilmslow,

Cheshire SK9 5AF

[6]www.ico.gov.uk

Tel -0303 123 113

Regards and sent on behalf of,

Rosemary Lyon,

Solicitor,

0151-691-8141

show quoted sections

References

Visible links
1. http://www.wirralglobe.co.uk/news/999130
2. http://www.whatdotheyknow.com/request/ag
3. http://www.whatdotheyknow.com/request/da
4. http://democracy.wirral.gov.uk/mgConvert
5. http://democracy.wirral.gov.uk/documents
6. http://www.ico.gov.uk/
http://www.ico.gov.uk/

Dear Mr Cardin,

Freedom of Information Act 2000 (FOIA)

FS50491264

I refer to the decision of the Information Commissioner dated 8 October
2013. The Commissioner requires the Council within 35 days to provide a
fresh response to your information request without relying on Section 14
of FOIA.. This is that response which is being copied to the Information
Commissioner. Your request for information was contained in your email of
18 October 2012, and was as follows:-

I have numbered the various parts of your request for ease of reference.

1. Please provide all information you have which is connected to the
departure of David Garry. 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 stored

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

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

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

[1]http://democracy.wirral.gov.uk/documents...

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

5. Please provide the names and addresses of all organisations /bodies
involved in providing legal advice to Mr. Garry. Please also provide
details of meetings which occurred including times, dates and matters
discussed.

6. Please confirm the details of any disciplinary charges either planned
or levelled against Mr. Garry in relation to any failures /malpractice /
abuse which brought about his departure from the Council.

7. If Mr. Garry was provided with a "clean bill of health" regarding his
time served at the council, please provide a copy of this /these
document(s).

Please redact documents as you see fit, and remove any personally
sensitive information in accordance with the requirements of the Data
Protection Act.”

8. Please confirm which meetings have taken place. Presumably there will
have been at least one gathering called to scrutinise the so-called
"compromise contract" that was drawn up and agreed,

I enclose the Report considered by the Council’s Employment and
Appointments Committee on 20 September 2013. I also enclose the Appendix
referred to in that report. This information relates to Mr. Garry’s
application for voluntary severance. A total severance payment of £46,584
was made to Mr Garry as detailed in the Appendix and I confirm that he
signed a Compromise Agreement. No disciplinary proceedings were taken in
respect of Mr Garry.

I consider that other information which you have requested in respect of
the departure of Mr Garry,is exempt information under Section 40 (2) of
the Freedom of Information Act in that you are asking for information
which is personal data, in respect of which you are not the data subject.
I consider that the disclosure of the requested information would
contravene the first data protection principle, that personal data shall
be processed fairly and lawfully, and shall not be processed unless at
least one of the conditions in Schedule 2 of the Data Protection Act 1998
is met. I consider disclosure of the requested information would have an
unjustified adverse effect on the individual, Mr David Garry, being the
former Chief Internal Auditor of the Council. Mr Garry would have had a
reasonable expectation upon his voluntary severance on 20 September 2012,
that his personal data, apart from the cost to public funds of that
voluntary severance , would remain confidential.

I do not consider that any of the conditions in Schedule 2 would be met
and particularly Condition 6 of Schedule 2 in that the processing would be
unwarranted by reason of prejudice to the rights and freedoms or
legitimate interests of the data subject.  I do not consider that such
processing would be necessary for the purposes of legitimate interests
pursued by yourself as a third party, being a member of the public. I have
considered whether there is a legitimate public interest in disclosure and
balanced this against the rights of the former Chief Internal Auditor, Mr
David Garry . I consider that disclosure of the information requested
would cause an unwarranted interference with a former employee’s rights,
which outweighs any legitimate interests pursued by yourself as a third
party .  I consider, as detailed above that the first data protection
principle would be breached if the withheld information was disclosed. Mr
Garry  asked for voluntary severance, and ,apart from the information
given above, the requested information is personal information relating to
that process. In those circumstances, Mr Garry has a very strong
legitimate expectation that his personal data would not be disclosed to a
member of the public and I consider that any such disclosure would be
unfair and not a lawful processing of his personal data. I do not consider
that there is any legitimate interest in a member of the public being
given personal data concerning that voluntary severance apart from the
Report and Appendix of the meeting of 20 September 2012 enclosed above. I
consider that you, as a member of the public do not have a pressing social
need, which would require disclosure of the other information. I consider
that your  legitimate interest as a member of the public has been met by
your having access to the Report considered by the Employment and
Appointments Committee giving details of the cost to the Council of Mr
Garry being given voluntary severance. Mr Garry would have no expectation
that details of his voluntary severance, beyond what was available in the
information provided in open session at the meeting on 20 September 2012,
would be disclosed to any member of the public in response to a freedom of
information request.

I have had regard to relevant guidance from the Information Commissioners
office and relevant case law including the First Tier Tribunal case of

Gibson, the Information Commission and Craven District Council.
(EA/2010/0095) . Paragraph 43 of that decision states:-

“We accept that there is a category of data - information that might
belong in a personnel file within the human resources department of a
public authority, such as pension contributions and tax codes - that comes
into existence whilst acting in one’s professional capacity, which is
nevertheless inherently private and would attract a very strong
expectation of privacy and protection from the public gaze. “

Paragraph 53 provides:-

“we find that the legitimate interests of members of the public outweigh
the prejudice to the rights, freedoms or legitimate interests of the
ex-CEO only to the extent that the information concerns the use of public
funds “

I consider that it is also relevant to have regard to the consequences for
Mr Garry, if this information were disclosed. It is now over a year since
he took voluntary severance. If the withheld information were to be
disclosed, I consider that this would cause prejudice to his rights and
freedoms as the data subject and that the information already put into the
public domain will meet the needs of a  member of the public.

I consider that this is an absolute exemption and not subject to the
public interest test. I therefore confirm that the Council seeks to rely
on the exemption contained in Section 40(2) of the Freedom of Information
Act 2000. I am therefore refusing, in accordance with Section 17 of the
Freedom of Information Act 2000, part of your request for information,
relying on the exemption contained in Section 40(2)

If you are dissatisfied with this response to your request for an internal
review, you have the right to complain to the Information Commissioner,
whose address is the Information Commissioner’s Office,

Wycliffe House,

Water Lane,

Wilmslow,

Cheshire SK9 5AF

[2]www.ico.gov.uk

Tel -0303 123 113

Yours sincerely

Jane Corrin

Information and Central Services Manager

Transformation and Resources,

Wirral Council

show quoted sections

References

Visible links
1. http://democracy.wirral.gov.uk/documents
2. http://www.ico.gov.uk/
http://www.ico.gov.uk/

Good Afternoon,

Thank you for your email below.  Please see Council’s text alongside your
original questions below as our response to your request for an internal
review.

Kind Regards

Jane Corrin

Information and Central Services Manager

Department of Transformation and Resources

Wirral Metropolitan Borough Council

Town Hall

Brighton Street

Wallasey

Wirral

CH44 8ED

[1]www.wirral.gov.uk

This information supplied to you is copyrighted and continues to be
protected by the Copyright, Designs and Patents Act 1988. You are free to
use it for your own purposes, including any non commercial research you
are doing and for the purposes of news reporting. Any other reuse, for
example commercial publication, would require our specific permission, may
involve licensing and the application of a charge.

From: Paul Cardin [mailto:[FOI #133826 email]]
Sent: 11 November 2013 14:25
To: InfoMgr, FinDMT
Subject: 610019 Internal review of Freedom of Information request -
Departure of Chief Internal Auditor David Garry from Wirral Council

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 'Departure of
Chief Internal Auditor David Garry from Wirral Council'.

e.g. Please state:

o whether a 'confidentiality clause' exists within Mr Garry's compromise
agreement – A standard Clause was included.

o whether a 'gagging clause' exists within Mr Garry's compromise agreement
– No, a “gagging “ clause was not included

o what is the nature of the relevant gagging / confidentiality clause?
i.e. does it prevent Mr Garry from referring to the existence of the
agreement itself and / or just to the contents of the agreement – A
standard clause was included and both parties agreed to abide by the
contents of the agreement.

Please do not restrict your review to the above 3 examples alone.
  Section 40 is not a 'blanket' exemption and cannot be engaged in order
to cover ALL information which you as the data controller deem to be
exempt from the legitimate and compelling public interest.  With this, and
the wider public interest in mind, please ask a senior person to
internally review your treatment of this FoI request, keeping it in line
with the relevant ICO guidance AND the Freedom of Information Act 2005.  I
believe you have overstepped the mark by withholding information which is
not covered by Section 40 of The Act.

Please be advised that your use of 'the passing of time' to justify the
protection of Mr Garry's data does not stand up, as it has been caused by
your ongoing breach of your own organisation's statutory obligations set
out within The Act.  Your unlawful, forseeable and avoidable, and as yet
unaccountable delays have created this delay.

Once your review has been correctly completed, please then respond.  A
full history of my FOI request and all correspondence is available on the
Internet at this address:
www.whatdotheyknow.com/request/departure...

Yours faithfully,

Paul Cardin

show quoted sections

References

Visible links
1. http://www.wirral.gov.uk/
http://www.wirral.gov.uk/

Good Afternoon,

Thank you for your email, the response is alongside your original
questions - I have highlighted them for your convenience.

Kind Regards

Jane Corrin

show quoted sections