Mazars investigation report into alleged Scarborough Borough Council corruption

Neil Wilby made this Freedom of Information request to Scarborough 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 partially successful.

Dear Scarborough Borough Council,

Please provide the following information in connection with the investigation, recently completed by Mazars, and provided to Council's party leaders, into alleged corruption. This investigation arose from findings made by an Employment Tribunal judge into the allegations made by a former council employee turned whistleblower.

1. Terms of reference for the investigation.

2. The budgeted cost of the investigation

3. The actual cost of the investigation

4. The investigation report.

Given the previous history of FOIA requests (and internal review requests), made by me to the Council, may I most politely remind you that Section 10 of the Act requires a public authority to act PROMPTLY in dealing with requests. The 20 working day limit is to be regarded as a backstop.

Yours faithfully,

Neil Wilby
Investigative journalist

Twitter: @Neil_Wilby
Web: neilwilby.com

FOI, Scarborough Borough Council

Dear Mr Wilby

 

Email Address: [FOI #413848 email]

FOI Request Reference: FOIA5131 - Mazars Investigation

Thank you for your written communication of 23/06/2017

Your request has been referred to the responsible officer and a response
should be made within the statutory timeframe of 20 working days from the
date of receipt.

In some circumstances a fee may be payable and if that is the case, we
will let you know. A fees notice will be issued to you, and you will be
required to pay before we will proceed to deal with your request.

Please ensure that any further communication in relation to this matter is
sent by you to the Freedom of Information Officer at the below address
quoting the reference FOIA5131 in all communications.

Yours sincerely,

Freedom of Information Officer

 

Freedom of Information Officer

Legal and Democratic Services

Scarborough Borough Council

e:  [1][Scarborough Borough Council request email]

t: 01723 232323

f: 0870 2384159

w:  [2]www.scarborough.gov.uk

 

 

 

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FOI, Scarborough Borough Council

Dear Mr Wilby

 

Re: Freedom of Information Act 2000 – FOIA5131

 

Thank you for your request which has been dealt with under the Freedom of
Information Act 2000 (FOIA). You requested the following information:

 

Request

Please provide the following information in connection with the
investigation, recently completed by Mazars, and provided to Council's
party leaders, into alleged corruption.  This investigation arose from
findings made by an Employment Tribunal judge into the allegations made by
a former council employee turned whistle-blower.

 

1. Terms of reference for the investigation.

 

2. The budgeted cost of the investigation

 

3. The actual cost of the investigation

 

4. The investigation report.

 

Response

 

Section 22 of the Freedom of Information Act (Information Intended for
Future Publication), makes provision for public authorities to withhold
information requested until it is published.

 

Section 22 states that:

 

(1) Information is exempt information if—

(a) the information is held by the public authority with a view to its
publication, by the authority or any other person, at some future date
(whether determined or not),

(b) the information was already held with a view to such publication at
the time when the request for information was made, and

(c) it is reasonable in all the circumstances that the information should
be withheld from disclosure until the date referred to in paragraph (a).

 

It is the Council’s intention to publish the information you have
requested in the near future and therefore the Council is satisfied that
this exemption is engaged in this case.

 

This exemption is subject to a public interest test, which requires the
Council to weigh the public interest in disclosure against the public
interest in maintaining the exemption. Only where the public interest lies
in disclosure will the information be disclosed.

 

It is clear that you, having made the request, have an interest in the
requested information. The Council also acknowledge there is a public
interest in the report  and in transparency and accountability, to promote
public understanding and to safeguard democratic processes.

 

However, it is the Council’s intention to publish the report in
conjunction with further information to provide additional context and
explanation.  We are satisfied that the public interest will therefore be
most effectively met by publication of the requested information by the
Council at the appropriate time and format.  This will allow stakeholders
to consider all the relevant information in the correct context.

 

We have therefore reached the view that, on balance, the public interest
is better served by withholding this information under Section 22 of the
Act at this time, particularly as the information is to be released in the
near future.

 

Review

If you are unhappy with the service you have received in relation to your
request and wish to make a complaint or request a review of our decision,
you should write to the Freedom of Information Officer, Legal and Support
Services, Town Hall, St Nicholas Street, Scarborough, North Yorkshire,
YO11 2HG  or email [1][Scarborough Borough Council request email].

           

If you are not content with the outcome of your complaint, you may apply
directly to the Information Commissioner for a decision. Generally, the
Information Commissioner’s Office cannot make a decision unless you have
exhausted the complaints procedure provided by Scarborough Borough
Council. The Information Commissioner can be contacted at: The Information
Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9
5AF | Tel: 01625 545745 | Fax: 01625 524510 | Web:  [2]www.ico.org.uk .

 

 

Kind regards

 

Freedom of Information Officer

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Dear Scarborough Borough Council,

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

I am writing to request an internal review of Scarborough Borough Council's handling of my FOI request 'Mazars investigation report into alleged Scarborough Borough Council corruption'.

The grounds for complaint are:

1. Section 10 of the Act requires a public authority to respond PROMPTLY. Your response was published on this website on the afternoon of the 20th working day. You are, therefore, requested to explain the delay when there was clearly no intention to disclose the requested information.

2. Freedom of information requests are, by definition, applicant blind. It seems clear, on its face, that your response appears to have involved enquiries that would generally be regarded as being beyond the scope of responding to a Freedom of Information Act request (for example: monitoring of my social media, liaison with North Yorkshire Police). That is assumed to be connected to my stated role as a journalist and somone who is known to interact socially with at least one of the stakeholders. It is, therefore, required that you disclose the nature and extent of those enquiries.

3. By reference to local/regional media, social media and, more crucially, council minutes, there appears to be no settled intention to publish any, or all, of the requested information. To rely on a s22 exemption your refusal to disclose is required to be accompanied by evidence.

4. No timeframe is given for publication, other than ‘in the near future’. Given the Council's routine (and defensive) approach to disclosure that could, readily, be interpreted months, or years. My own previous experiences with the Council concerning information requests, and press enquiries, are relevant in this regard (answered very late or not at all).

5. It is accepted that a definite date is not required to be given (or indeed possible to give). However, the Information Commissioner takes the view that timing is a key factor when deciding whether withholding the information is “reasonable in all the circumstances” (FS51021803, para 60).

6. Delaying the release of any information that the Council don’t want to disclose, because it is politically inconvenient, is an improper use of the s22 exemption. The Council is put to proof that this circumstance is not engaged in the instant request.

7. There appears to have been no separate consideration given to releasing the information requested at Parts 1, 2 and 3. There would be a strong argument, for example, that this information could have been disclosed without, on its face, impacting adversely (or at all) on any wider consideration by stakeholders of the Mazars report.

8. The s22 exemption is subject to a public interest test, it appears that this has been carried out in a sufficiently robust or thorough manner and the balancing exercise appears to apply more weight to the identity, vocation of the requester, than the wider public. The impact of delay, or that early publication will not unduly disrupt the authority’s plans, does not appear to have been given sufficient weight, either.

9. The Grand Chamber of the European Court of Human Rights in Magyar Helsinki Bizottság v Hungary [18030/11] stipulated four ‘threshold criteria’ to better define the circumstances under which a denial of access to information constitutes an interference (to a requester’s Article 10 rights) in a given case (§156):
a. The purpose of the information requested: contribution to a public debate
b. The nature of the information sought: public interest nature
c. The role of the applicant: social watchdogs and alike
d. Whether the information is ready and available to the public authorities

In the instant request there has already been considerable public debate (a); the Council has conceded the public interest argument (b); the requester is an NUJ accredited journalist (c); it is known (and conceded by the Council) that all of the requested information is ready and available.

The Council’s refusal to disclose the information, therefore, clearly engages the requester’s Article 10 rights and may give rise to a tortious claim against the Council.

10. It is accepted that a requester has no legal right to an internal review of an information request but, instead, relies on s45 of the Act and the Information Commissioner's Guidance on the subject.

10. The Council, in all the circumstances, is invited to expedite this internal review. Particularly, in the light of matters raised above at para 9.

Other relevant case law pertaining to s22
• Queen Mary University v Information Commissioner & R. Courtney EA/2012/0229
• Information Commissioner Decision Notice FS51021803 (Ministry of Justice)
• Information Commissioner Decision Notice FS50349323 (University of Liverpool)

Recommended reading
• Information Commissioner’s Guidance on the Exemption for Information Intended for Future Publication, March 2014.
• J. Wadham, K. Harris and G. Peretz (2011), Blackstone’s Guide to The Freedom of Information Act 2000, 4th edition, Oxford University Press.

A full history of my FOI request and all correspondence is available on the internet at this address: https://www.whatdotheyknow.com/request/m...

Yours faithfully,

Neil Wilby
Investigative journalist

Twitter: @Neil_Wilby
Web: neilwilby.com

FOI, Scarborough Borough Council

Dear Mr Wilby

I acknowledge receipt of your email. I can confirm that Freedom of Information Request FOIA5131 has now been referred to the Regulatory and Governance Manager for internal review.

Yours Sincerely

Freedom of Information Officer
Legal and Democratic Services
Scarborough Borough Council
e:  [Scarborough Borough Council request email]
t: 01723 232323
f: 0870 2384159
w:  www.scarborough.gov.uk

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Dear FOI,

The refusal to disclose the requested information arguably constitututes a breach of my Article 10 convention rights.

Further, the refusal to undertake an internal review in accordance with s45 of the Act and the Information Commissioner's Guidance would tend to aggravate such a breach.

I intend to challenge the decision not to disclose by way of an application for judicial review.

A letter before claim (LBC), pre-action protocol compliant, will be served on the Council, by recorded delivery post. Unless I receive notification to the contrary, the LBC will be served upon:

Mrs Lisa Dixon
Director: Legal and Democratic Services
Scarborough Borough Council
Town Hall
St Nicholas Street
Scarborough
YO11 2SG

Yours sincerely,

Neil Wilby
Investigative journalist

Twitter: @Neil_Wilby
Web: neilwilby.com

FOI, Scarborough Borough Council

Dear Mr Wilby

 

Thank you for your email requesting a review of the Council’s response to
your request for information (reference FOIA5131).

 

Request

 

You requested the following information:

 

Please provide the following information in connection with the
investigation, recently completed by Mazars, and provided to Council's
party leaders, into alleged corruption.  This investigation arose from
findings made by an Employment Tribunal judge into the allegations made by
a former council employee turned whistle-blower.

 

1. Terms of reference for the investigation.

 

2. The budgeted cost of the investigation

 

3. The actual cost of the investigation

 

4. The investigation report.

 

In response to your request the Council stated that the information was
held with a view to publication and sought to rely on the exemption at
section 22 of the Freedom of Information Act 2000 (FOIA).

 

You then requested a review of this decision in the following terms:

 

I am writing to request an internal review of Scarborough Borough
Council's handling of my FOI request 'Mazars investigation report into
alleged Scarborough Borough Council corruption'.

 

The grounds for complaint are:

 

1. Section 10 of the Act requires a public authority to respond PROMPTLY.
Your response was published on this website on the afternoon of the 20th
working day. You are, therefore, requested to explain the delay when there
was clearly no intention to disclose the requested information.

 

2. Freedom of information requests are, by definition, applicant blind. It
seems clear, on its face, that your response appears to have involved
enquiries that would generally be regarded as being beyond the scope of
responding to a Freedom of Information Act request (for example:
monitoring of my social media, liaison with North Yorkshire Police). That
is assumed to be connected to my stated role as a journalist and somone
who is known to interact socially with at least one of the stakeholders.
It is, therefore, required that you disclose the nature and extent of
those enquiries.

 

3. By reference to local/regional media, social media and, more crucially,
council minutes, there appears to be no settled intention to publish any,
or all, of the requested information. To rely on a s22 exemption your
refusal to disclose is required to be accompanied by evidence.

 

4. No timeframe is given for publication, other than ‘in the near future’.
Given the Council's routine (and defensive) approach to disclosure that
could, readily, be interpreted months, or years. My own previous
experiences with the Council concerning information requests, and press
enquiries, are relevant in this regard (answered very late or not at all).

 

5. It is accepted that a definite date is not required to be given (or
indeed possible to give). However, the Information Commissioner takes the
view that timing is a key factor when deciding whether withholding the
information is “reasonable in all the circumstances” (FS51021803, para
60).

 

6. Delaying the release of any information that the Council don’t want to
disclose, because it is politically inconvenient, is an improper use of
the s22 exemption. The Council is put to proof that this circumstance is
not engaged in the instant request.

 

7.  There appears to have been no separate consideration given to
releasing the information requested at Parts 1, 2 and 3. There would be a
strong argument, for example, that this information could have been
disclosed without, on its face, impacting adversely (or at all) on any
wider consideration by stakeholders of the Mazars report.

 

8. The s22 exemption is subject to a public interest test, it appears that
this has been carried out in a sufficiently robust or thorough manner and
the balancing exercise appears to apply more weight to the identity,
vocation of the requester, than the wider public. The impact of delay, or
that early publication will not unduly disrupt the authority’s plans, does
not appear to have been given sufficient weight, either.

 

9. The Grand Chamber of the European Court of Human Rights in Magyar
Helsinki Bizottság v Hungary [18030/11] stipulated four ‘threshold
criteria’ to better define the circumstances under which a denial of
access to information constitutes an interference (to a requester’s
Article 10 rights) in a given case (§156):

a. The purpose of the information requested: contribution to a public
debate

b. The nature of the information sought: public interest nature

c. The role of the applicant: social watchdogs and alike

d. Whether the information is ready and available to the public
authorities

 

In the instant request there has already been considerable public debate
(a); the Council has conceded the public interest argument (b); the
requester is an NUJ accredited journalist (c); it is known  (and conceded
by the Council) that all of the requested information is ready and
available.

 

The Council’s refusal to disclose the information, therefore, clearly
engages the requester’s Article 10 rights and may give rise to a tortious
claim against the Council.

 

10. It is accepted that a requester has no legal right to an internal
review of an information request but, instead, relies on s45 of the Act
and the Information Commissioner's Guidance on the subject.

 

10. The Council, in all the circumstances, is invited to expedite this
internal review. Particularly, in the light of matters raised above at
para 9.

 

Other relevant case law pertaining to s22

•             Queen Mary University v Information Commissioner & R.
Courtney EA/2012/0229

•             Information Commissioner Decision Notice FS51021803
(Ministry of Justice)

•             Information Commissioner Decision Notice FS50349323
(University of Liverpool)

 

Recommended reading

•             Information Commissioner’s Guidance on the Exemption for
Information Intended for Future Publication, March 2014.

•             J. Wadham, K. Harris and G. Peretz (2011), Blackstone’s
Guide to The Freedom of Information Act 2000, 4th edition, Oxford
University Press.

 

Review

 

With reference to question 1 of your request, the scope of the review is
set out as part of the report itself. As you are aware, the Council holds
the report with a view to publication (inclusive of the scope) and
therefore section 22 of the FOIA applies. The intention to publish the
report derives from the decision of a cross party panel of elected
Members, who met privately to consider the report and next steps. That
panel of Members unanimously determined that the report should be
disclosed.

 

With reference to the public interest test and its application to question
1, the public interest exercise is concerned with the scope being
published at an earlier time than the rest of the report. Given that there
is already an amount of incomplete and incorrect information circulating
in the public domain about this matter, releasing the scope in isolation
from the remainder of the report would do nothing to assist public
understanding, and would result in questions being raised that could be
addressed by the content of the complete report. There is a stronger
public interest in the report being released in its complete form (as per
the cross party panel’s decision) so as to aid the public’s understanding,
to avoid unnecessary questions being raised, and to avoid further
unhelpful speculation and confusion.

 

With reference to question 2 of your request the budgeted cost of the
investigation was up to £14,000 (exclusive of VAT and disbursements).

 

With reference to question 3 of your request, the actual cost of the
investigation is not known at this time because the Council has not
received a final bill.

 

With reference to question 4 of your request, it remains the Council’s
position that this information is exempt from disclosure under section 22
of the FOIA as it is held with a view to publication soon, and that the
public interest rests in maintaining the exemption. As stated in the
Council’s initial response, there is clearly a public interest in this
information being disclosed into the public domain, which is why the cross
party panel determined as much. There is also a public interest in the
information being published in a manner that aids understanding. The
reliance on section 22 of the FOIA is nothing to do with political
inconvenience as you state in your request for review. In fact quite the
contrary is true, in that it would be more politically convenient for the
information to be disclosed as soon as possible.

 

In addition to those public interest factors already expounded, there is a
strong public interest in the Council operating in a lawful manner – to do
otherwise would put the Council at risk of legal challenge and would
impact upon the provision of services and the public purse. One relevant
aspect of the requirement to operate lawfully is to ensure that the
Council complies with its duty of care towards staff, and the common law
duty of mutual trust and confidence. In this respect the Council must
ensure that it meets such duties towards those staff who have been
involved in and may be affected by the matter prior to releasing the
report into the public domain.

 

Another aspect of acting lawfully is that the Council has entered into a
contractual agreement with the external auditor for the provision of an
independent review. As part of that contractual agreement, the external
auditor has stipulated that their written permission must be obtained
prior to the report being disclosed more widely. To publish the report
without obtaining written permission would likely be a breach of contract
and put the Council and the public purse at risk, and it is entirely
reasonable from a public interest perspective to allow the Council
opportunity to comply with this requirement.

 

Finally, there have been no enquiries as per section 2 of your request for
review. The acknowledgment within the response that you have an interest
in the requested information was simply a statement to differentiate your
interest as an applicant from the wider public interest (being the
relevant public interest), and would be true of any request the Council
received, e.g. it is clear the applicant has an interest in the
information because they have made the request, regardless of who that
applicant is, but it is the wider public interest that is relevant.

 

Review

 

If you remain unhappy with the service you have received in relation to
your request you may now apply directly to the Information Commissioner
for a decision. The Information Commissioner can be contacted at: The
Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire, SK9 5AF | Tel: [1]01625 545745 | Fax: [2]01625 524510 | Web:
[3]www.ico.org.uk |

 

Yours sincerely

 

Freedom of Information

Scarborough Borough Council

Dear FOI,

A complaint has been submitted to the Information Commissioner's Office. This is the relevant extract from it, for the benefit of WhatDoTheyKnow readers and users. The ICO will, no doubt, avail you of the full text of the complaint when it is allocated to a caseworker for investigation.

The Grounds for complaint under section 50 of the Act are:

1. The requester requires disclosure of the information requested at Questions (1), (3) and (4).

2. The requester acknowledges that information at Question (2) has now been disclosed. The Council have provided no explanation or apology as to why this information was not provided in the first finalisation.

3. The finalisation of the internal review request did not address the grounds of complaint at paras 1, 3, 4, 5, 9 and 11. No explanation has been given for not doing so.

4. Section 22 exemption
Reliance upon the Section 22 to prevent disclosure of the requested information is unlawful:
(i) For the reasons set out in the internal review request
(ii) The reasons set out in the Council’s internal review finalisation strongly suggest that the officer carrying out the review does not have a proper understanding of the Act and that he/she had made a pre-formed decision not to disclose and arranged reasons (such as they are) around that decision:
(a) The Council can only consider reasons for disclosure/non-disclosure either at the time the request was made (23rd June, 2017) or at the time by which it should have been lawfully finalised (21st July, 2017). The all-party Panel meeting, comprising a small number of Members, referred to by the Council took place after 21st July, 2017.
(b) There was no settled mandate to publish at the time of the finalisation of the request. Indeed, on all the evidence there is still no settled intention to publish, merely a vague notion that they will at some future date.
(c) The requester has been told, privately, that there is a Council briefing of all Members scheduled for 4th September, 2017 concerning the Mazars report. There is no mention at all of the Mazars report in the Council’s published agenda due to take place on that day. The Council cannot publish the Mazars report without a majority vote, in favour, by Members.

5. Public interest test
(i) The Council has not given sufficient weight to the effect of further delay in publication of the Mazars report. The Marriott tribunal referred to above was in July, 2016.
(ii) The Council has misdirected itself insofar as any harm that could be said to arise from the disclosure of the requested information is only relevant if it results from the information intended for future publication and early disclosure of that information, ahead of any future release date.
(iii) The Council has ascribed too much weight to the argument that the requested information is too technical, complex or misleading to disclose early, or that it may be misunderstood or is incomplete, because they can explain it or set it into context. Those circumstances do not arise in the instant request. The investigation report will be (or at least should be) in a format that is readily understood and with which the public, and particularly, journalists, will be familiar.

6. Fact finding
The information and review request finalisations are deficient in the following areas:
(i) The response to Question 1 should, under the Act, be ‘information not held’. The setting of ‘Terms of reference’ (generally tightly drawn), and what they require of an investigator, is quite different to a narrative scope (that appears to be what the Council ascribes to).
(ii) The timescale for release of the requested information (or at least what remains of it) has moved from ‘in the near future’ to ‘soon’. But the Council has still not demonstrated that there was a settled intention at the time the information request was finalised. Indeed, the requester submits respectfully but with some force that there was no such intention at that time.
(iii) The fact that the Council, in entering into a contract with a private company, would agree to a term of that contract that give the contractor the rights to deny publication, would strike the mythical man on the Clapham omnibus as extraordinary. Nevertheless, it would be reasonable to assume that in the near three months since the report was delivered (much later than anticipated it must be said), by Mazars, that such an issue would have been resolved.
(iv) The Council rather piously state that there is ‘strong public interest in the Council operating in a lawful manner’. Which, on all the evidence in the public domain, they frequently do not: Particularly in relation to the Act.
(v) The Council’s narrative concerning ‘common law duty of care towards staff ‘ and the ‘common law duty of mutual trust and confidence’ are a curiosity for two reasons:
(a) The Mazars investigation has come about because the Council failed in its common law duty to Ben Marriott, a Council employee turned whistle blower, who was forced to risk his life savings to challenge the same Council over failings of duty of care towards him - and a quite astonishing betrayal of his trust and confidence. The tribunal judge was withering in his criticism of the Council both in open court and in his written findings.
(b) Both of those common law duties are provided for in the Act, in any event.
(vi) The Council says ‘Given that there is already an amount of incomplete and incorrect information circulating in the public domain’. But they do not provide any evidence to support this contention. There have been a large number of articles published in the local and regional press, almost wholly based on the full Employment Tribunal judgment that was released into the public domain. Until those articles appeared, the Council wanted to retreat to its default ‘cover-up’ position. The Council, known to be highly litigious, has not challenged any of that incorrect or incomplete information by complaint or application.
(vii) The Council has not identified whether the information requested is the same as it intends to publish. The requester submits that it is unlikely, given the Council’s past history, that they would publish the Mazars report in its entirety.

7. Reliance upon the section 22 exemption engages the requester’s Article 10 convention rights for the reasons set out in the internal review request. The Council simply avoided addressing Magyar in their finalisation of the review.

8. Section 45 code of practice
(i) The review was only finalised after threat of judicial proceedings. Without that there is a reasonable presumption that there would have been the same interminable delays that the requester has experienced in the past when dealing with the Council.
(ii) The review was not carried out within the stipulated 20 working day period.
(iii) The review appears to have been carried out by the same officer who finalised the request.

Yours sincerely,

Neil Wilby
Investigative journalist

Twitter: @Neil_Wilby
Web: neilwilby.com

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