Departure of Chief Internal Auditor David Garry from Wirral Council

Paul Cardin made this Freedom of Information request to Wirral Metropolitan Borough Council

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

The request was refused by Wirral Metropolitan Borough Council.

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.

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:

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:

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):

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:

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,

Yours faithfully,

Paul Cardin

Dear Wirral Metropolitan Borough Council,

I've noticed that a number of the links in the last message are not working. Here they are again in the same order,

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...

Yours faithfully,

Paul Cardin

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'.

You have failed to respond and are in breach of Statutory Law again, and have been for some time. It is now my statutory right to ask for and receive an internal review.

Please also acknowledge this request (not done yet) and provide me with the name and contact details of the officer assigned to carry out the internal review.

A full history of my FOI request and all correspondence is available on the Internet at this address:

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

Yours faithfully,

Paul Cardin

Paul Cardin left an annotation ()

Here is a link to an article, setting out what I feel is the background and true motivation behind Wirral Council's very poor response times.

Notably, there are just 2 people dedicated to Freedom of Information and Data at this council (one professional and one admin assistant) - which says it all really.

http://easyvirtualassistance.wordpress.c...

Paul Cardin left an annotation ()

Corrin, Jane, Wirral Metropolitan Borough Council

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/

nigel hobro left an annotation ()

The tone of these requests may by the bending of the meaning of words be seen as vexatious. But the correspondent is frustrated by not being able to get at the truth.

This reply might be considered as analagous to "1984" by George Orwell for it is but a short leap from this answer to having two fingers put up to one and being required to say "I see three fingers"

I. Sevova left an annotation ()

......yes and its clear now given the record of this abusive council that they will invoke this recent (Jan 2013) test case if they feel they can get away with doing so. I predict there will be a lot more of these to come. What a Godsend this recent ruling must be for them!!

Its ironic that the well established abusiveness of this Council generates so many FOI requests, yet persistence in trying to get to the truth behind such abuses will now see the requester being branded the abuser!!

Classic Wirral Council!!!

Paul Cardin left an annotation ()

“The question ultimately is this – is the request vexatious in the sense of being a manifestly unjustified, inappropriate or improper use of FOIA?” (Dransfield, para 43).

No. Watch this space.

D. Speers left an annotation ()

Do Wirral Council have a Vexatious Complainant policy?

Paul Cardin left an annotation ()

I believe they do Dee - with regard to Local Government Ombudsman complaints.

Paul Cardin left an annotation ()

Dransfield v ICO. Important section of Devon County Council case (not mentioned by Wirral Council solicitor):

"•His repeated entry of school premises to assert their lack of safety, from which premises he was subsequently banned.
•His aggressive and harassing tone in correspondence.
•The fact there was no significant public interest in disclosure of the requested information."

I have never engaged in anything which even approximates to this. In fact I'm a school governor at a local nursery school, and have been for some years. When under threat of closure, I did my utmost to keep our facility open against the wishes of senior Wirral Council officers - and won a temporary reprieve.

With Wirral Council being found to be a bullying employer, abusive of power (M Smith report); also abusive of the disabled people under its care, failing in central governance, and 'abnormal' (A Klonowski report), unlike the quoted case above, a strong and growing public interest has built into how it now applies 'accountability'.

However, rather than securing a proper reckoning against problem people, the council has handed across a running total of 900,000 pounds plus in large pay offs possibly using local people's council tax money, and stifled transparency through the use of compromise agreements containing suspected gagging clauses. This may even have allowed abuse to carry on unchecked - because recipients of the gagging clauses are prevented by law from talking about this to potential future employers.

This has been interpreted as a continuing failure by many local people, and has stoked the public interest to a very high level.

If Wirral Council DO regard my conduct in my FoI requests as, to quote Rosemary Lyon 'obsessive', they have never made any attempt to remove me from my school governor role. I therefore believe their desire to label my request as 'vexatious' is ill-advised, without substance, not genuinely held, and indicates to me perhaps a wish to conceal something which may in the long run prove controversial or even 'explosive'. David Garry was connected to the following scandal, which has been followed with some interest in the local media:

http://www.liverpooldailypost.co.uk/live...

I also have a copy of a positive work reference from the year 2003, which recommended me highly. This was provided by my then employer Wirral Council to my then new employer, W S Atkins. I'd worked for the council for 7 years, gained promotion twice, but resigned after becoming a whistleblower. Wirral Council brought gross misconduct charges against me which were ultimately proven to be trumped up and without foundation. This reference makes no mention of any 'obsessive' character traits or any 'obsessive' qualities to the work I produced.

I would hope and trust that the 'vexatious' allegation against the above request, 10 years on, is not connected in any way to these earlier events.

Finally, the area of compromise agreements and gagging clauses is a very interesting one - and one which is currently at the top of the news. Even when the issue was not in the headlines, I was conducting a full survey of virtually ALL English councils. This took in 345 separate local authorities.

Rather than being 'obsessive', I was persistent and vigilant in this work. In fact, the qualities that Wirral Council describes in my 2003 work reference were brought fully to bear and the results can be seen, carefully and methodically presented at the following location:

http://wirralinittogether.wordpress.com/...

With gagging clauses being 'banned' (again) in the NHS, I am hopeful that this research will shine a light into a dark corner, and that the public will get a better perspective on the growing use of public money to fund compromise agreements (and gagging clauses) within Local Government.

Recently, I have had a number of contacts from interested national journalists, who say they have seen much value and potential in the work I've conducted.

D. Speers left an annotation ()

Can Wirral Council match this level of professional integrity?

Carol Croft left an annotation ()

Is it a fact that Wirral Council are again subject to monitoring of timeleness by the Information Commissioner's Office?
Why's that then - maybe because they're not fulfilling their responsibilities?
http://www.ico.gov.uk/what_we_cover/~/me...

Paul Cardin left an annotation ()

Appealed to ICO as follows on 25th March 2013

Note: Section 14: “Vexatious” request

Dear Information Commissioner,

Please find my complaint form attached. The following link holds all the information you require:

https://www.whatdotheyknow.com/request/d...

I have attached my own explanation of why my request was not vexatious. I have provided much background information and would hope that you’ll fully access and read this. With Wirral Council being the only council in the land currently monitored for timeliness, It’s my hope that you can deal with this appeal quickly, and then proceed to the next stage. Please keep me advised of your progress,

best regards,

Paul Cardin

D. Speers left an annotation ()

Being a polite, persistent, pain in the proverbial MUST NOT constitute being labeled as a "vexatious complainantt"
You have a democratic right to question policy, process and behaviour in public office. Your democratic right MUST be respected I feel!
If nothings wrong then answers exist! #simples

nigel hobro left an annotation ()

Democratic right is not an empty phrase. Remember the political thinker A.de Tocqueville who wrote -I think -"All corporations are a conspiracy against the public"

Because this is a public corporation we have to be on guard it does not become a conspiracy against the people of ~Wirral. Appropriately enough the AKA report referred to this tendency of the WBC serving itself by bureaucratic machination rather than its public.

The bigger the corporation the more danger there is

John Hannigan (Account suspended) left an annotation ()

How long is this council going to get away with all this !!!!!!!!

Not long I think......

Paul Cardin left an annotation ()

I received an email from a case officer at the ICO today. This appeal has taken over four months to arrive.

Whatever, this one is on it's way to the Upper Tribunal if necessary.

Fingers crossed.

D. Speers left an annotation ()

Keep going Paul...very well done!

nigel hobro left an annotation ()

Dave Garry I must remind readers, held the investigation brief for the period November 2011 to September 2012 , for my allegations regarding the Working Neighbourhoods,BIG fund and ISUS contracts, since vindicated by Grant Thornton, forensic accountants.

In September 2012 after much dilly-dallying his report on the above was suppressed as being "unfit for purpose". This necessitated the employment of Grant Thornton at a cost of £39k +VAT to complete the investigation-in less than 6 weeks of fieldwork-and find manifest errors.

During the whole period I am of the opinion backed by email traffic with Mr Garry, that Mr Garry put the telescope to the blind eye, refusing to see a pile of ordure before him, deploying obfuscation and possibly telling untruths, deliberate mayhap or mayhap unconsciously.

The above is one reason why Paul Cardin's persistence is justified.

My regret is that Paul Cardin's integrity, stamina and ability should not be deployed in better pursuits than this necessity of dragging the truth from others who appear not to be so blessed in ability as he.

Paul Cardin left an annotation ()

The latest submission in my defence:

From: Paul C
Sent: 05 August 2013 22:02
To: 'casework@ico.org.uk'
Subject: RE: Email receipt[Ref. FS50491264]

Dear [ICO],

As my deadline for providing further information has not yet been reached (12th August 2013), and after once again examining the ICO guidance on Vexatious Requests (to which you kindly provided this link)

http://www.ico.org.uk/for_organisations/...

... I would like to set out some further thoughts on these issues, as follows. Please accept the following information in conjunction with the evidence and information I have previously provided:

With regard to page 26 of the ICO guidance, under the heading, “Allow the requester an opportunity to change their behaviour”, I’ve noticed that points 104 and 105 have not been explored or followed by the local authority. Point 106 then advises the data controller to “focus on the impact of the requests rather than the behaviour of the requester himself”. “Labelling a requester with terms such as ‘obsessive’, ‘unreasonable’ or ‘aggressive’ may only serve to worsen relations....”, however in this case, I was characterised as “obsessive” by Wirral Council solicitor Rosemary Lyon, as follows:

“I consider that the volume and frequency of correspondence received from yourself concerning
compromise agreements can be fairly characterised as obsessive”

According to the ICO guidance, labels such as the above risk worsening relations between the respective parties and risk causing further disputes.

As Wirral Council had not followed the carefully laid out ICO advice under “Allow the requester an opportunity to change their behaviour”, and as this was their very first time of calling upon Section 14 with regard to my FoI requests, I believe they were incautious, inappropriate and possibly going against the spirit of the Act by resorting to the Section 14 “vexatious request” exemption.

Section 108 advises the authority to refer the requester to the ICO’s ‘for the public’ webpages. But once again, Wirral Council did not follow this advice, prior to resorting to Section 14 of the Act.

Wirral Council did not issue their refusal notice within 20 working days. The request was lodged in October 2012. The council’s Section 14 exemption arrived 5 months later in March 2013, following an internal review. One would have assumed that the request would have been regarded as vexatious before the internal review was carried out (which was also not done within 20 working days).

On viewing point 126, it’s clear that having failed to keep to the 20 working day time limit and to answer the request in time, Wirral Council are therefore not permitted to take into account anything that happens within the period in which it is dealing with the request. I trust you will therefore discard any material submitted by Wirral Council that falls within this period.

Under Justified Persistence on page 35, the following statement appears in response to a request characterised by the authority as in part ‘obsessive’:

“…The dogged pursuit of an investigation should not lightly be characterised as an obsessive campaign of harassment.”

I would finish this email by saying that my pursuit of important information has been dogged and persistent. It would be a mistake to characterise this as ‘obsessive’. I believe the front page headline, based on my research on compromise agreements and ‘confidentiality clauses’, in The Daily Telegraph of April 3rd 2013 speaks for itself. I made 345 Freedom of Information requests in order to highlight a subject which has now taken on national importance, has been picked up by the National Audit Office and which is the matter under discussion in a forthcoming Public Accounts Committee in September 2013.

To have one of my 400+ FoI requests successfully labelled as “vexatious” by a council which has been forced to admit that it abused learning disabled people; was found by an external investigator to have corporately bullied a whistleblower, and which due to its very poor performance, was the only council in the land to be monitored by the ICO (for the 2nd time) between January and March this year would be perplexing to say the least.

Please acknowledge receipt of this email and please confirm that you are accepting this information and adding it to my defence,

Best regards,

Paul Cardin

nigel hobro left an annotation ()

Nothing short of a Napoleonic artillery barrage "Fire is everything..Nothing else matters"

Paul Cardin left an annotation ()

And time for one more email before tomorrow's deadline for the submission of evidence.

From: Paul C
Sent: 11 August 2013 21:32
To: 'casework@ico.org.uk'
Subject: FW: Email receipt[Ref. FS50491264]

Dear ICO,

In addition to the email below dated 5th August, further information has entered the public domain which raises yet more questions about Wirral Council’s approach to the provision of public information.

You may be familiar with the finer detail as it originates from your own organisation and refers to the ICO announcement of a regulatory response to the findings following the 3 month monitoring period of Wirral Council (their second one), undertaken between January and March 2013.

The ICO stated that despite a small improvement in response times, 75% of replies still breached the 20 working day time limit during the monitoring period. The ICO felt that it did not warrant enforcement action on this occasion, but also that they had no option but to require the council to sign an undertaking stating the need to step up their commitment to the legal obligations laid out under the FOI Act.

I believe my deadline for submissions runs out tomorrow, but this email is being submitted to you 24 hours prior to that and should be in your inbox when you come into work tomorrow morning. Please add this further evidence of ongoing failure to the extensive list that I’ve provided to you over the last few months, since the struggling data controller labelled my David Garry request as “vexatious”,

Many thanks,

Paul Cardin

nigel hobro left an annotation ()

Paul this request is akin to my Data Subject access denial for the Timmins report on the D Garry ISUS/Working Neighbourhood and BIG fund investigation.

The timmins report WAs sent to councillors and refers to me as the whistleblower. One of its objections to D Garry's methodology was his unsubstantiated acceptance of wirralbiz directors that I was a violent and aggrieved ex-employee, and rather unlogically, that was why all my disclosures should be set aside. How wrong was D Garry asd the Grant thornton reports show.

Effectively the receipt of this Timmins report would set the question of why was D Garry not disciplined rather than paid off?

Paul Cardin left an annotation ()

As expected, the Commissioner found in my favour, and a line in the sand has been drawn...

http://wirralinittogether.wordpress.com/...

I. Sevova left an annotation ()

Excellent work as always Paul. Abusive Wirral Council foiled again!!

Corrin, Jane, Wirral Metropolitan Borough Council

2 Attachments

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/

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
o whether a 'gagging clause' exists within Mr Garry's compromise agreement
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

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: https://www.whatdotheyknow.com/request/d...

Yours faithfully,

Paul Cardin

nigel hobro left an annotation ()

I support Mr Cardin's application for more detail because the over-riding public interest is to know why Mr Garry's internasl counter fraud investigation was held up between August 2011 and September 2012 when it was junked and I refer to the council's recent "Response to critical reports 2010-2013" when officially they write
" However, given the concerns, that are well documented, regarding the robustness of the
Council’s audit procedures in the past, the Leader of the Council and Chief Executive ordered a review by the Interim Director of Finance into the draft
reports.
6.3 The review recommended that Wirral engage an independent auditor"

It is of legitimate public interest whether the inordinatte delays on ISUS and BIG were poolitically motivated given the appointment of the Peer Improvement Board in February 2012 and the pending spring visit to China. Revelations of the incompoetence of these proceedings might well have weakened the PEEL Chinese negotiations and / or brought in compulsory Commissioners rather than a voluntary PIB.

The failure of qualified accountants to see the obvious given the evidence presented to them, being no different from that given Grant Thornton, is strange and the public need to know whether the likelihood of a safe landing by compromise agreement and a settlement may have influenced what ought to have been an independently-minded Mr D. Garry.

Corrin, Jane, Wirral Metropolitan Borough Council

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/

Dear Corrin, Jane,

I cannot find a response. Please address,

Yours sincerely,

Paul Cardin

Corrin, Jane, Wirral Metropolitan Borough Council

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

Paul Cardin left an annotation ()

Bulk of request was either ignored by the data controller or answered in vague, non-commital, unhelpful terms.
Appealed to ICO.

nigel hobro left an annotation ()

Either we do as we profess- open government-or we stop professing that we have open government. the hypocrisy is rank