Freedom of Information and Data Protection Gagging Clauses in Compromise Agreements

The request was refused by Cheshire West and Chester Council.

Dear Cheshire West and Chester Council,

This FOI request refers to the FOI / DP gagging clause you have used in the past within compromise agreements.

This tactic has the highly controversial effect of muzzling individuals, whilst driving a coach and horses through your own internal Data Protection and Freedom of Information policies.

It also raises questions under the Human Rights Act Article 10 which states that individuals have as a human right the facility to request information from relevant organisations without interference from public bodies. This was further underlined recently by a broadening of the criteria which may now encompass anti-democratic behaviour such as yours.

Notwithstanding this, there are concerns that the tactic has not been scrutinised by any committee of Cheshire West and Chester Councillors in a democratically accountable way. There are also concerns that should it ever be set before a committee, it would NOT succeed, and perhaps this is why you have chosen to circumvent such scrutiny, which has been designed with the public interest at its heart.

As you are aware, I became subject to such a ban from yourselves (as part of a compromise agreement) which lasted from October 2009 for a period of 20 months, until my QC Hugh Tomlinson succeeded in having you capitulate in June 2011.

Despite all this, the following link reveals that you felt justified in your actions and even have plans to use the tactic again in the future:

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

My most grave concern is that this tactic enables the council to conceal potentially damaging, immoral and/or illegal behaviour. The Information Commissioner has expressed its concern, but recently stated that they cannot act upon this situation unless a signatory to such a compromise agreement / gagging clause makes a request in defiance of it.

My legal advice in retrospect was that I had done the right thing not to breach my ban, so effectively, applying this to future cases, you have succeeded in achieving a working opt-out of your FOI obligations which may potentially conceal a multitude of sins from the Cheshire public. My fear is that this has been done by design. It is seen to discriminate against individuals, fly in the face of the public interest and to work against the free flow of information.

Please state how many times since vesting day in 2009 Cheshire West and Chester Council has used the Freedom of Information / Data Protection Gagging Clause designed to prevent ex-employees from exercising their statutory FOI / DP querying rights upon leaving the employ of the Council.

Yours faithfully,

Paul Cardin

Paul Cardin left an annotation ()

This FOI request is placed in memory of my father, Edwin Cardin, an honest man and seeker of justice, who passed away on this day in 1985.

Paul Cardin left an annotation ()

Please see this link to the original request (and to further interesting links) which exposed Cheshire West and Chester Council's use of the Freedom of Information / Data Protection gagging clause:

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

Dear Cheshire West and Chester Council,

In addition to the original request made today; for those relevant compromise agreements with FOI / DP gagging clauses, please also provide the following, including cost of employee time / consultancy fees where appropriate:

Investigations
Meetings
Hearings
Grievance processes
Dignity at work processes
Occupational Health Meetings and processes
Time spent by legal team advising and drawing up documents
Total length of time spent on suspension by staff involved or in dispute
Total length of time spent on "gardening leave" by staff involved or in dispute
Any other relevant costs

Please also provide minutes from any scrutiny committees which discussed the matter of FOI / DP gagging clauses - if the committees took place and the minutes exist.

In summary, please work out and provide the total cost of ALL processes attached to the issuing of all your FOI / DP related compromise agreements and gagging clauses,

Yours faithfully,

Paul Cardin

Cheshire West and Chester Council

RE: Your request under the Freedom of Information Act 2000

Case Reference: 101000079734

Dear Mr Cardin

Thank you for your emails dated 3 December 2011 timed at 00:19 and 13:02 which we will be treating as one request. It will be treated as a request within the meaning of the Act: this means that we will send you a full response within 20 working days, either supplying you with the information which you want, or explaining to you why we cannot supply it. If we need any further clarification or there is any problem we will be in touch.

In the meantime if you wish to discuss this further please contact me. It would be helpful if you could quote the log number 79734.

Yours sincerely

Caroline Timms
FOI Unit
Solutions Team
Cheshire West and Chester Council

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FOI West, Cheshire West and Chester Council

Dear Mr Cardin

 

I refer to your two recent requests, received on 3 December 2011 and timed
at 00:19 and 13:02, and am able to provide you with the following
response.  To ensure that your request is answered in full I have numbered
each of your points.

 

1.       This FOI request refers to the FOI / DP gagging clause you have
used in the past within compromise agreements.   This tactic has the
highly controversial effect of muzzling individuals, whilst driving a
coach and horses through your own internal Data Protection and Freedom of
Information policies. 

2.       It also raises questions under the Human Rights Act Article 10
which states that individuals have as a human right the facility to
request information from relevant organisations without  interference from
public bodies. This was further underlined  recently by a broadening of
the criteria which may now encompass anti-democratic behaviour such as
yours.

3.       Notwithstanding this, there are concerns that the tactic has not
been scrutinised by any committee of Cheshire West and Chester Councillors
in a democratically accountable way. There are also concerns that should
it ever be set before a committee, it would NOT succeed, and perhaps this
is why you have chosen to circumvent such scrutiny, which has been
designed with the public interest at its heart.

4.       As you are aware, I became subject to such a ban from yourselves
(as part of a compromise agreement) which lasted from October 2009 for a
period of 20 months, until my QC Hugh Tomlinson succeeded in having you
capitulate in June 2011.

5.       Despite all this, the following link reveals that you felt
justified in your actions and even have plans to use the tactic again in
the future:

 
[1]http://easyvirtualassistance.wordpress.c...

6.       My most grave concern is that this tactic enables the council to
conceal potentially damaging, immoral and/or illegal behaviour. The
Information Commissioner has expressed its concern, but recently stated
that they cannot act upon this situation unless a signatory to such a
compromise agreement / gagging clause makes a request in defiance of it.

7.       My legal advice in retrospect was that I had done the right thing
not to breach my ban, so effectively, applying this to future cases, you
have succeeded in achieving a working opt-out of your FOI obligations
which may potentially conceal a multitude of sins from the Cheshire
public. My fear is that this has been done by design. It is seen to
discriminate against individuals, fly in the face of the public interest
and to work against the free flow of information.

 

Your points 1-7 are considered to be comments and therefore not a valid
request under the Freedom of Information Act.  Consequently, the Council
will not respond to these points.

 

8.       Please state how many times since vesting day in 2009 Cheshire
West and Chester Council has used the Freedom of Information / Data
Protection Gagging Clause designed to prevent ex-employees from exercising
their statutory FOI / DP querying rights upon leaving the employ of the
Council.

 

The Council does not recognise your definition of ‘Gagging Clause’ and has
instead interpreted it as the inclusion within compromise agreements of a
requirement for an employee/ex-employee to forgo their right to approach
the Council in the future with Freedom of Information or DPA Subject
Access requests under the relevant acts. 

 

I can confirm that Cheshire West and Chester Council have included this
requirement in a compromise agreement on one occasion, in relation to the
compromise agreement signed by yourself (as you have mentioned in point 4
above).

 

9.       In addition to the original request made today; for those
relevant compromise agreements with FOI / DP gagging clauses, please also
provide the following, including cost of employee time / consultancy fees
where appropriate:

    

·         Investigations

·         Meetings

·         Hearings

·         Grievance processes

·         Dignity at work processes

·         Occupational Health Meetings and processes

·         Time spent by legal team advising and drawing up documents

·         Total length of time spent on suspension by staff involved or in

·         dispute

·         Total length of time spent on "gardening leave" by staff
involved

·         or in dispute

·         Any other relevant costs

 

Cheshire West and Chester Council does not hold this information as it did
not record this information at the time the relevant compromise agreement
was signed. 

 

10.   Please also provide minutes from any scrutiny committees which
discussed the matter of FOI / DP gagging clauses - if the committees took
place and the minutes exist.

 

All publicly available minutes of Council meetings are available on a
searchable database on the Council’s website via:

 

[2]http://cmttpublic.cheshirewestandchester...

 

There are no results under any of the minutes from the Council’s Scrutiny
Committees for ‘gagging clause’ or ‘compromise agreement’.  Consequently,
I can confirm that, after searching under the keywords ‘gagging clause’
and ‘compromise agreement’ the Council does not hold any information
relating to this part of your request.  You may wish to search the
database under your own keywords.

 

However, under the Council’s duty to provide advice and assistance I can
confirm that there are 6 results relating to ‘compromise agreement’ from
the Council’s other committees (the Audit and Governance Committee and the
Staffing Committee), the results are available via the following link:

 

[3]http://cmttpublic.cheshirewestandchester...

 

11.   In summary, please work out and provide the total cost of ALL
processes attached to the issuing of all your FOI / DP related compromise
agreements and gagging clauses.

    

Please refer to the answer provided in response to question 10.

 

I trust that this answers your enquiry.

 

If you are unhappy with the way your request for information has been
handled, you can request a review by writing to:

 

Solutions Team

Cheshire West and Chester Council

HQ

58 Nicholas Street

Chester

CH1 2NP

 

If you remain dissatisfied with the handling of your request or complaint,
you have a right of appeal to the Information Commissioner at:

 

The Information Commissioner's Office

Wycliffe House

Water Lane

Wilmslow

Cheshire SK9 5AF

 

Telephone: 08456 30 60 60 or 01625 54 57 45

Website: [4]www.ico.gov.uk

 

There is no charge for making an appeal.

 

Yours sincerely

 

Miriam Wallace

FOI Unit – Solutions Team

Cheshire West and Chester Council

 

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Dear Cheshire West and Chester Council,

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

I am writing to request an internal review of Cheshire West and Chester Council's handling of my FOI request 'Freedom of Information and Data Protection Gagging Clauses in Compromise Agreements'.

I find it worrying and difficult to accept that you have "not recorded" such important information. This situation gives rise to questions over the council's integrity and competence.

I appreciate your inclusion of "links to information", however it is not the requester's job to find the information. It is your job as data controller to find it and to supply it.

I also believe whilst I have given you plenty of detailed information to assist you in your search, this level of thoroughness has not been matched in your response, which falls short in several areas and is not exhaustive enough.

Please arrange for a senior person to conduct this 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/fr...

Yours faithfully,

Paul Cardin

FOI West, Cheshire West and Chester Council

Dear Mr Cardin

 

Thank you for your request for an internal review into the handling of
your FOI request ‘Freedom of Information and Data Protection Gagging
Clauses in Compromise Agreements’, our reference 79734.

 

Before I am able to set up the internal review could you please clarify
what you mean by ‘I also believe whilst I have given you plenty of
detailed information to assist you in your search, this level of
thoroughness has not been matched in your response, which falls short in
several areas and is not exhaustive enough’ as I am unsure on what grounds
you are requesting the review.  Could you also please list what specific
points you wish to raise about the response you received so that the panel
may consider them.

 

Yours sincerely

 

Miriam Wallace

FOI Unit – Solutions Team

Cheshire West and Chester Council

 

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Dear FOI West,

Excerpt from your own Freedom of Information policy:

Advice and Assistance

"The Council has a duty to provide advice and assistance to applicants under Section 16 of the FOI Act so far as it would be reasonable to expect the Authority to do so. The Council will offer advice and assistance to any person or organisation that wishes to make a request for information. The Council is committed to dealing with requests within the statutory guidelines, no more than 20 working days and more speedily if possible."

I have been told to go and look for some information myself, which does not appear to meet with your duty to locate and supply information.

As I said, I don't believe your searches have been exhaustive enough.

I also find the statement that you DIDN'T RECORD any of the information, whilst you went about (in a very calculated manner), avoiding your obligations under the Freedom of Information Act and the standards set out in the Lord Chancellor’s Code of Practice under section 45 of FOI Act, quite preposterous.

I don't believe I need "grounds" to request such an internal review. It is a right which you cannot delay, refuse or make conditional.

Please now conduct this internal review and ask a senior officer to conduct it (as is now my right, ever since my Statutory DP / FOI rights were "returned" to me by your monitoring officer Simon Goacher in June 2011.)

Yours sincerely,

Paul Cardin

FOI West, Cheshire West and Chester Council

Dear Mr Cardin

Thank you for your email dated 4 February 2012. A panel has been convened comprising of an officer from legal services and a tier 4 manager who will conduct an internal review, which will take place on Thursday 8 March 2012. The chair of the panel will write to you following the review with their findings.

Yours sincerely

Caroline Timms
FOI Unit
Cheshire West and Chester Council
 

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Dear FOI West,

Please pass this to the chair of the panel.

The panel may wish to consider the question, "If no information was recorded about the controversial tactic of systematically removing my statutory querying rights, why was there a need to apply such a ban in the first place?"

Consider:

No recorded information = nothing to conceal; no data or information to provide, and no need for the council to protect its reputation by seeking to opt out of its obligations on data and information.

Some recorded information = an opt-out needed to protect the council's reputation and prevent information / data being released into the public domain,

Yours sincerely,

Paul Cardin

Dear FOI West,

The panel may also wish to consider:

If nothing at all was recorded around the circumstances of my forced departure from employment in the following areas:

· Investigations
· Meetings
· Hearings
· Grievance processes
· Dignity at work processes
· Occupational Health Meetings and processes
· Time spent by legal team advising and drawing up documents
· Any other relevant costs

...why was there an apparent pressing need for the council to aim to protect its reputation by seeking to apply an opt-out on its Data Protection and Freedom of Information obligations in the first place?

Yours sincerely,

Paul Cardin

FOI West, Cheshire West and Chester Council

Dear Mr Cardin

I am writing to acknowledge your two emails received on 25 February 2012 timed at 21:25 and 14:34. I can confirm that these have been passed to the panel for consideration.

Yours sincerely

Miriam Wallace
FOI Unit - Solutions Team
Cheshire West and Chester Council

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FOI West, Cheshire West and Chester Council

2 Attachments

Dear Mr Cardin

 

Further to your request for an internal review into the handling of your
FOI request reference 79734 I can confirm that this took place on 8 March
2012.  Please find attached the decision (with attachment) that Ms Makin,
chair of the panel, has asked me to send out on her behalf.

 

Yours sincerely

 

Miriam Wallace

FOI Unit – Solutions Team

Cheshire West and Chester Council

 

show quoted sections

Paul Cardin left an annotation ()

Many of the unelected officers working for this council seem to have convinced themselves that there's no problem at all flying in the face of their own policies on Freedom of Information and Data Protection.

Worse, professional info and data people appear to have lost their tongue or lain supine, as senior officers get on with it and set about dismantling the usual public protections.

Nowhere within these policies does it state that the council will seek to ban ex-employees from exercising their statutory rights under threat of pursuing them through the courts should they breach the 'ban'. Yet they do it.

The following excerpt from the council's response is quite telling:

9.6 The issue of a compromise agreement containing a requirement for an employee / ex-employee to forgo their right to approach the council in the future with Freedom of Information or DPA Subject Access Requests under the relevant acts did not go to any committee nor is there any requirement for it do so. The council does not therefore hold this information because the information does not exist.

...in other words, these officers have been handed delegated powers, but do NOT believe they need to run such a Kafkaesque proposal past the democratic scrutiny of ELECTED members. I think I'm correct in stating that the majority of Cheshire West's elected members would not be happy with being taken for fools or circumvented in this way.

As it stands, the Council has a means of quietly disposing of whistleblowers or employees they regard as troublemakers. They can do what the hell they like, because they're secure in the knowledge they can seek to use this tool to cover their tracks and prevent any illegal, immoral or compromising behaviour being uncovered.

More information on this here:

www.easyvirtualassistance.co.uk/page4.html

www.easyvirtualassistance.wordpress.com

Paul Cardin left an annotation ()

Many of the unelected officers working for this council seem to have convinced themselves that it's permissible to fly in the face of their own policies on Freedom of Information and Data Protection. Policies which contain many fine words on transparency / openness, but no hint whatsoever to the use of such Machiavellian tactics.

Nowhere within these policies does it state that the council will seek to ban ex-employees from exercising their statutory rights, and also threaten to pursue them through the courts should they breach the 'ban'.

The following excerpt from the council's response is quite telling:

9.6 The issue of a compromise agreement containing a requirement for an employee / ex-employee to forgo their right to approach the council in the future with Freedom of Information or DPA Subject Access Requests under the relevant acts did not go to any committee nor is there any requirement for it do so. The council does not therefore hold this information because the information does not exist.

...in other words, these officers have been handed powers but do NOT believe they need to run such Kafkaesque proposals past the democratic scrutiny of ELECTED members. I think I'm correct in saying that the majority of Cheshire West's 90+ elected members would not be happy being circumvented and taken for fools in this way.

As it stands, the Council has a means of quietly disposing of whistleblowers or employees they regard as troublemakers. They can do what they like, because they know they can seek to use this tool out of the public eye to prevent any illegal, immoral or compromising behaviour being uncovered at a later date and damaging their reputation. My own ban lasted for 20 months and seems to have successfully prevented me from uncovering anything.

Now, they don't have any information, apparently - so you have to wonder, "Why the FoI ban in the first place?!"

More here:

www.easyvirtualassistance.co.uk/page4.html

www.easyvirtualassistance.wordpress.com

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