Martin Morton Gagging Clause, Director of Law, Abuse of Power and Martin Smith Report

I. Sevova 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,

It was stated by Martin Morton in the Wirral Globe (20/01/2010)that Bill Norman instructed Mr Morton after he had left the authority not to disclose his complaints to the media etc otherwise he would instruct Cabinet not to investigate his allegations.

This appears to be go against normal whistle blowing policies and was a possible abuse of power by Bill Norman, so please;

1, provide copies of all documents relating to this threat (redacted as appropriate) or whether this conversation was verbal only. If verbal please state whether Bill Norman denied making this threat or whether Mr Morton's account has since been upheld

2, disclose whether 'abuse of power' forms any of the current allegations and/or investigations against Bill Norman that led to his recent suspension and if so please state the nature of these

3, Please provide a copy of the Martin Smith report redacted as appropriate or the summary of its findings, preferably the former but the latter will do

Yours faithfully,

I. Sevova

Dear Wirral Metropolitan Borough Council,

Can you please expedite this request as it has now run over the time frame

Yours faithfully,

I. Sevova

ScarletPimpernel left an annotation ()

Section 3 of your request.

The Martin Smith report minutes are on the Wirral Council's website at http://democracy.wirral.gov.uk/mgAi.aspx... and the Martin Smith report is too http://democracy.wirral.gov.uk/documents... .

Section 2

Bill Norman was suspended on the 28th June 2012 by Cllr Phil Davies in order for an investigation to take place.

Further decisions relating to Bill Norman were made at the full Council meeting of the 16th July 2012 see http://democracy.wirral.gov.uk/documents... , http://democracy.wirral.gov.uk/documents... and http://democracy.wirral.gov.uk/documents... .

As a result of this an Investigation and Disciplinary Committee was created which met on the 20th August 2012 see http://democracy.wirral.gov.uk/ieListDoc... . The matter regarding Bill Norman was dealt with as agenda item 3 (Update in relation to suspension of Council Officers).

However it was decided by the seven councillors at that meeting on the recommendation of officers to hold that meeting in private on the grounds of if they didn't it would "reveal information relating to any individual". Hope that helps!

The decisions so far made have been:-

1) Suspend Bill Norman (28/6/2012)
2) Appoint Richard Penn to do the investigation (16/7) and Eversheds LLP as legal advisers (16/7)
3) Mr. Penn writes his 16-page report for the Investigation and Disciplinary Committee (16/7 to 20/8)
4) Investigation and Disciplinary Committee meets on 20th August 2012 in private and receives report entitled "Update in Relation to the Suspension of Council Officers" . The report covers Bill Norman, Ian Coleman, David Taylor-Smith and David Green. It relates in part to this report http://www.audit-commission.gov.uk/inspe... published by the Audit Commission on the 8th June 2012. It also relates also to various matters too long to go into here...

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 'Martin Morton Gagging Clause, Director of Law, Abuse of Power and Martin Smith Report'.

Despite my prompt on the 22nd of August to you I am still waiting for a response. This is now long overdue and so please kindly deal with this request as required by law.

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

Yours faithfully,

I. Sevova

Martin Morton left an annotation ()

Dear I.Sevova

Apologies - I somehow missed this.
I think I can help you with some aspects of this request.
An email from Mr.Norman to me prior to the commencement of the Martin Smith Abuse of Power investigation dated 4th December 2009 states on the particular the issues of confidentiality/defamation/media and "publicising the mater (sic) in other ways (blogs,Twitter etc;)":

"In the absence of your agreement on this point (and subject to any arguments by you to the contrary ) I am likely to be minded to recommend to Cabinet that the investigation does not proceed".

Please note : In the interests of "due process" I have never publicly called for or discussed potential disciplinary proceedings emanating from either the Martin Smith or AKA Reports.The irony being that as far as I am aware there have never been any disciplinary proceedings anyway!.
The same email states: "I am not asking you to swear to secrecy until your dying day,merely to make no comments to third parties (or to otherwise the matter) until due process is completed".
As I understand that Mr.Norman has now left Wirral Council I am assuming due process has been concluded.

However although it is highly unlikely that this particular issue was ever deemed worthy of scrutiny or censure there is a useful legal term which no doubt Mr.Norman would have been aware - res ipsa loquitur.

Regards,Martin Morton

I. Sevova left an annotation ()

Thanks Martin,

so "the thing speaks for itself" and yes I would have thought that with Mr Norman having now left the Council that due process should be concluded. Maybe Wirral MBC has it's own version of the Official Secrets Act so that in 50 years from now we mere mortals may be able to scrutinise these somewhat shadowy events?

You will be aware that Mr Norman left Torbay Council shortly after questionable goings on with a whistle blower named Matthew Harper? He was dismissed by Mr Norman and went on to receive 200K from an unfair dismissal tribunal.

Wirral MBC has the tag of being Britain's most abusive Council and paying lip service to, but not delivering on, freedom of information requests, doesnt help it. Nor do arbitrary decisions on gagging clauses and the like.

ScarletPimpernel left an annotation ()

"Maybe Wirral MBC has it's own version of the Official Secrets Act", yeah it's called the Local Government Act 1972, the Data Protection Act 1998 and the Freedom of Information Act 2000.. etc.. :D But thankfully the legislation is slowly changing in this area.

I. Sevova left an annotation ()

Thanks Mr Pimpernel but I think you may be missing the point. The Official Secrets Act applicable to central government departments is a prohibition based on usually lengthy time frames to provide information.

Local Government whilst it is has to comply with data protection law has an obligation under FOI legislation to provide information and to wherever possible promote transparency.

Wirral MBC is hardly an exemplar of information provision or transparency!

ScarletPimpernel left an annotation ()

Wirral Council has information provided to it in confidence by central government departments. It also has computer access to various central government computer databases.

Local Government does have a duty to comply with data protection law, but misuses the absolute exemption on data protection grounds as it doesn't attract a public interest test.

You are right that Wirral Council has "shot itself in the foot" when it comes to FOI compliance, as by its own actions it has made things time-consuming, expensive and unlawful. Although things are slowly changing, the massive backlog of FOI requests (and ICO enforcement notices) means some new requests are being dealt with outside the time limits.

I. Sevova left an annotation ()

Indeed Scarlet,

Wirral MBC is a victim of its own failures and the fact that it has the most FOIs based on its population compared to all other Council's is overwhelmingly due its reputation as Britain's most abusive and incompetent council.

It is in a vicious circle as the high volume of requests inevitably leads to compromises in quality and veracity of information provided, and so its reputation is further tarnished.

it seems at times though this Council is perversely proud of its negative tag or rather it feels saddled with a terrible reputation so it blithely trundles on without ever having a real will to improve.

No amount of window dressing can change something when it stubbornly clings to the old rotten ways of doing things. I am of course speaking hypothetically in this last bit as no one could ever think that this could apply to Wirral MBC!

ScarletPimpernel left an annotation ()

>It is in a vicious circle as the high volume of
>requests inevitably leads to compromises in quality
>and veracity of information provided, and so its >reputation is further tarnished.

Well not really, other councils routinely publish the information released as a result of FOI requests on their website (which reduces requests and makes it easier to answer requests for the same information), other councils also publish far more information which means if it is requested, they merely need to provide a link to their website. The truth of the matter is that the high volume of FOI requests at Wirral Council is because people can't get the information more easily (or quicker) elsewhere. According to Wirral Council the high number of requests is because articles about Wirral Council in the press lead to FOI requests. That is but a fraction of the total though and its disingenuous of officers to overstate this effect.

>it seems at times though this Council is perversely >proud of its negative tag

That's fair comment but not universally the case, although some who wanted positivity have decided to leave and find it elsewhere.

>or rather it feels saddled
>with a terrible reputation so it blithely trundles on >without ever having a real will to improve.

It's not the individual will that's the issue, it's the collective will which is driven by a variety of things holding it back from peer pressure, a herd mentality, the age of staff (especially senior management), fear, anxiety, stubborness, lack of skills, inappropriate behaviour, frustrations, issues outside "work life" (personal issues divorce, pregnancy, children, marriage etc) as well as the dark side of party politics rearing its ugly head to crucify anyone brave enough to stand up to its politicians when they do something individually or collectively that's morally wrong. About the only people on the Council Chamber floor during Council meetings that the public "trust" can sadly be counted on one hand. Even the media and press have difficulties as most of us don't have the experience of writing about such calamities and disasters, I don't have a wide enough vocabulary to describe what's wrong with Wirral Council and how it should be put right. Also I tend to get criticised by editors and management if I stray too much into party political matters.

Well there is a

I. Sevova left an annotation ()

Thanks Scarlet

You make lots of good and well balanced points but where you state; "other councils routinely publish the information released as a result of FOI requests on their website (which reduces requests and makes it easier to answer requests for the same information), other councils also publish far more information which means if it is requested, they merely need to provide a link to their website"

this is of course true I'm sure but my point perhaps badly expressed, is that actual and/or perceived abuses perpetrated by this Council in recent times has inevitably fueled the amount of requests for information it receives. You only have to look at most requests to see that abuse in some form underpins the nature of many requests.
This Council has a lot of things it would rather not put into the public domain but I am always impressed by the tenacity of requesters to try their utmost to get to the truth. It does seem to be a rare event when sensitive information is provided and when that does happen it is often only when the ICO has had to intervene.
If WBC made a real effort toward transparency warts and all then it may make a small difference to its otherwise bad reputation.

ScarletPimpernel left an annotation ()

"If WBC made a real effort toward transparency warts and all then it may make a small difference to its otherwise bad reputation."

As discussed many times at public meetings, they have things they'd rather spend money on than such luxuries as transparency, democracy and accountability. Such things would require changing their hiring policies, how much they paid staff as well as major changes to corporate governance and democracy!

They consider their primary roles to be:-

a) collector of taxes (Council Tax etc)
b) spender of taxes (salaries, councillors, overheads etc)
c) collector of grants
d) spender of grants (CYPD, DASS, Tech Services, LHRAM, Regen, Housing and Planning etc)
e) giver of grants
f) running the Merseyside Pension Fund
g) *LOWER PRIORITY THAN ABOVE* democracy (~£1 million a year on councillors, public meetings etc)

I. Sevova left an annotation ()

Yeah sounds about right.

Oh by the way as well as abusive forming the basis of a high proportion of information requests I missed out maladministration.

Abuse and incompetence is a deadly cocktail and Wirral MBC lead the way here!!

ScarletPimpernel left an annotation ()

Incompetence we can understand, but abusive incompetence is downright annoying and bad manners!

Dear Wirral Metropolitan Borough Council,

Can you please give me an update on the status of this request? I made the original back in July and requested the internal review well over two months ago.

I shall refer this to the ICO if I do not hear from you within a few days from your receipt of this message

Yours faithfully,

I. Sevova

InfoMgr, FinDMT, Wirral Metropolitan Borough Council

Good Morning

 

Wirral Council acknowledges your request below and would like to take this
opportunity to apologise for the delay in responding to your query, you
request is currently with the department of law hr and asset management
and we will respond with any information we can provide as soon as this is
available.

 

Kind regards

 

Tracy O'Hare

Information Management

Wirral Council

 

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

 

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Paul Cardin left an annotation ()

Wirral have one qualified data/information person, assisted by one Admin person.

That's not a great deal of importance attached to DP / FOI is it?
No wonder they're in a mess and the only UK council up for monitoring by the ICO in January 2013.
Says it all really.

I hope these resources aren't hit by Burgess' and Davies' forthcoming cuts.

But nothing would surprise me with these people.

I. Sevova left an annotation ()

Yes I think it demonstrates the contempt that Wirral MBC has for information seekers and transparency in general.

It is only through the great work that yourself and other requesters/campaigners do that this rotten borough is held to account and its machinations are sometimes brought into the open.

I. Sevova left an annotation ()

Dear Wirral Council,

This request was made over six months ago now and once again you have broken statutory laws on freedom of information provision.

Please provide me in the first instance with a timeframe for when it will be dealt with, otherwise I will refer this to the ICO within one week from today.

Thanks

I. Sevova

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...

I. Sevova left an annotation ()

Dear Wirral MBC,

This has now been referred to the ICO as the request was made way back last summer and you given no indication that it is being dealt with.

Thanks

Lyon, Rosemary A., Wirral Metropolitan Borough Council

Dear I. Sevova,

Case Reference Number FS50484498

                                                CRM-614310

 

I refer to your request for information dated 23 July 2012, which was as
follows:-

 

Dear Wirral Metropolitan Borough Council,

It was stated by Martin Morton in the Wirral Globe (20/01/2010)that
Bill Norman instructed Mr Morton after he had left the authority
not to disclose his complaints to the media etc otherwise he would
instruct Cabinet not to investigate his allegations.

This appears to be go against normal whistle blowing policies and
was a possible abuse of power by Bill Norman, so please;

1, provide copies of all documents relating to this threat
(redacted   as appropriate) or whether this conversation was verbal
only. If verbal please state whether Bill Norman denied making this
threat or whether Mr Morton's account has since been upheld

2, disclose whether 'abuse of power' forms any of the current
allegations  and/or investigations against Bill Norman that led to
his recent suspension and if so please state the nature of these

3, Please  provide a copy of the Martin Smith report redacted as
appropriate or the summary of its findings, preferably the former
but the latter will do

 

You requested an internal review on 20 September 2012 and asked for an
update on 30 November 2012. I am copying this response to the Information
Commissioner. I apologise  for the delay in responding.

 

1.

 Exemption contained in Section 40(2) and (3) (a) of the Freedom of
Information Act 2000

I consider that your request for information, with reference to a report
in a local newspaper on 20 October 2010, concerning alleged statements
made by Mr Bill Norman in connection with another individual and any
documents relating to such alleged statements, is exempt information under
section 40(2) of the Freedom of Information Act 2000 ,in that you are
asking for information which includes information about individuals, ie
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 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 subjects referred to in your request and
I do not consider that such processing would be necessary for the purposes
of legitimate interests pursued by yourself as a third party. This is an
absolute exemption and not subject to the public interest test

 

2.

Exemption contained in Section 40(2) and (3) (a) of the Freedom of
Information Act 2000

 

I consider that your request for information concerning alleged
allegations made against Mr Bill Norman  is exempt information under
section 40(2) of the Freedom of Information Act 2000 ,in that you are
asking for information which includes information about individuals, ie
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 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 referred to in your request and I
do not consider that such processing would be necessary for the purposes
of legitimate interests pursued by yourself as a third party. This is an
absolute exemption and not subject to the public interest test. The
Investigation and Disciplinary Committee which met on 20 September 2012
found, in the case of the Director of Law, HR and Asset Management (and
Monitoring Officer), Mr Bill Norman,   that there was no case to answer.

 

3.

Exemption contained in Section 40(2) and(3)(a) of the Freedom of
Information Act 2000

 

I consider that your request for information, to provide a copy of the
Martin Smith report  is exempt information under section 40(2) of the
Freedom of Information Act 2000 ,in that you are asking for information
which includes information about individuals, ie 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 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 subjects referred to in the report and I
do not consider that such processing would be necessary for the purposes
of legitimate interests pursued by yourself as a third party.  This is an
absolute exemption and not subject to the public interest test. I do not
consider that it would be possible to provide a redacted copy of the
report having regard to the nature of the investigation and having regard
to the duty of care

 

Exemption contained in section 41 of the Freedom of Information Act 2000

 

I consider that the information you have requested is exempt information
under Section 41 of the Freedom of Information Act 2000, in that it was
obtained by the Council as a public authority from any other person, and
the disclosure of the information to the public by the Council would
constitute a breach of confidence by that or any other person. (Section
 41 (1) (a) and (b) of the Freedom of Information Act 2000.)

 

I have had regard to the Awareness Guidance 2-information provided in
confidence , version 4 issued by the ICO on 12 September 2008. I have had
regard to the nature of the information which has been obtained by the
Council from any other person, namely Martin Smith . I consider that if
information were disclosed in response to your request that any breach of
confidence would be actionable by the person to whom the duty of
confidence was owed. I am satisfied that the information has the necessary
“quality of confidence” referred to in Awareness Guidance No 2 and that an
obligation of confidence exists . Mr Smith asked for the report to be kept
confidential. I have therefore concluded that the Council owes a duty of
confidence and that the exemption contained in Section 41 applies to your
request. Although  this is an absolute exemption under the Freedom of
Information Act 2000. I also consider that the wider public interest in
maintaining this confidentiality outweighs the public interest in
disclosure. I have had regard to the interests of the person to whom the
duty of confidence is owed. The question is whether disclosure to the
public would be a breach of confidence. I consider that there would be
such a breach of confidence if information were disclosed to the public.
The duty of confidence in this case is owed to Martin Smith, who was
carrying out an independent investigation at the request of the Council.

 

I am therefore refusing, in accordance with provisions of Section 17 of
the Freedom of Information Act 2000, your request for information  ,
relying on the exemptions contained in Section 40(2) and (3) (a) (i),
Section 41 and Section  43 of the Freedom of Information Act 2000.

 

If you are dissatisfied with the response 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

[1]www.ico.gov.uk

 

Tel -0303 123 113

 

Yours sincerely,

 

Rosemary Lyon,

Solicitor

 

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I. Sevova left an annotation ()

of the Martin Smith report I did ask for a redacted version so I do not believe that hiding behind data protection regulations is appropriate here.
Therefore I will take up with the ICO

Martin Morton left an annotation ()

The denial of a redacted copy of the Martin Smith Bullying ,Harassment & Abuse of Power report (April 2011)is most peculiar.
A heavily redacted version was once freely available on the Wirral Council website.
All that remains is a bulletpoint where it once was.....

I. Sevova left an annotation ()

Thanks Martin,

I have now asked the ICO to take up this part of the request

ScarletPimpernel left an annotation ()

It's most strange that they've turned down part (3) of the request (a copy of the redacted Martin Smith report) when this is on Wirral Council's website at http://democracy.wirral.gov.uk/documents... .

I. Sevova left an annotation ()

Thanks Scarlet,

I'm not sure if its that "strange" or merely an indicator that Wirral MBC are not very rigorous and they refuse FOI requests willy-nilly without making the necessary checks

Martin Morton left an annotation ()

The report has appeared and disappeared and was made available on the website 10 months after first publication.
Personally I think the redactions make the report inpenetrable and to be frank goes nowhere near the reality of the situation and some of the conclusions conflict with the evidence.
The report is far from a whitewash ( mainly because the evidence and corroboration is compelling) however there are matters which have come to my attention subsequent to the publication which cause me grave concern as to how the investigation was conducted.

For example Mr.Smith concludes that a gagging clause is NOT an abuse of power.Not only are such gags illegal (s.43J Public Interest Disclosure Act) but according to Sir David Nicholson at todays Health Select Committee they are "completely and utterly unacceptable".

There are also a couple of hugely significant mistakes (including one part the investigation).

Under the circumstances I think the denial of the report is worthy of further investigation rather than the fact they didn't know it was on their own website!.
Curiouser and curiouser!.