Nadine Graham

The request was refused by Croydon Borough Council.

Dear Croydon Borough Council,

I would like to have sight of all correspondence between the then Chief Executive, the Deputy Chief Executive, the Borough Solicitor and the head of human resources, after January 2012, on the matter of Nadine Graham, her employment tribunal and subsequent events.

Yours faithfully,

S Downes

Information, Croydon Borough Council

 

Dear Sir/Madam

 

Thank you for your recent request.

 

Please note that the Council is experiencing problems with the computer
system we use for such requests.  Unfortunately, you may receive another
acknowledgement which is automated directly from that system when the
issue has been resolved.  Please accept our apologies for any
inconvenience this may cause.

 

Your request is being considered and you will receive a response within
the statutory timescale of 20 working days, subject to the application of
any exemptions. Where consideration is being given to exemptions the 20
working day timescale may be extended to a period considered reasonable
depending on the nature and circumstances of your request. In such cases
you will be notified and, where possible, a revised time-scale will be
indicated. In all cases we shall attempt to deal with your request at the
earliest opportunity.

 

There may be a fee payable for the retrieval, collation and provision of
the information requested where the request exceeds the statutory limit or
where disbursements exceed £450. In such cases you will be informed in
writing and your request will be suspended until we receive payment from
you or your request is modified and/or reduced.

 

Your request may require either full or partial transfer to another public
authority. You will be informed if your request is transferred.

 

If we are unable to provide you with the information requested we will
notify you of this together with the reason(s) why and details of how you
may appeal (if appropriate).

 

Please note that the directorate team may contact you for further
information where we believe that the request is not significantly clear
for us to respond fully.

 

Yours Failthfully

 

Information Team

Croydon Council

 

Information in relation to the London Borough of Croydon is available at
[1]http://www.croydonobservatory.org/. Also responses to previous Freedom
of Information requests can also be found on the following link
[2]https://croydondata.wordpress.com/

 

 

 

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Dear Croydon Borough Council,

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

I am writing to request an internal review of Croydon Borough Council's handling of my FOI request 'Nadine Graham'.

My request was sent on July 16.

It stated:

I would like to have sight of all correspondence between the then Chief Executive, the Deputy Chief Executive, the Borough Solicitor and the head of human resources, after January 2012, on the matter of Nadine Graham, her employment tribunal and subsequent events.

My request was acknowledged with some load of old flannel about computer problems. Since when, more than two months on, the council has failed to provide a response.

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

Yours faithfully,

S Downes

Information, Croydon Borough Council

1 Attachment

Dear Mr Downes

 

Please find attached the Council’s response to your Freedom of Information
Request.

 

Yours Sincerely,

 

Ciaran Ward

Senior Information Coordinator

 

Chief Executive’s Department

Business Support Services

Information Team

7^th Floor, Zone C

Bernard Weatherill House

8 Mint Walk

Croydon, CR0 1EA

 

 

 

 

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Dear Croydon Borough Council,

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

I am writing to request an internal review of Croydon Borough Council's handling of my FOI request 'Nadine Graham'.

I want a full and proper explanation for the extreme delay, beyond what is required under law, for responding to my request.

I would like to see all the internal correspondence relating to this FoI request.

And I would like an investigation to determine whether my original request could be fulfilled with appropriate redaction of any personal details relating to the former Croydon Council staff member Nadine Graham and her employment tribunal.

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

Yours faithfully,

S Downes

Stockton, Jessica, Croydon Borough Council

Dear Sir,

I refer to your request for an internal review of the handling of your Freedom of Information request F/CRT/10002837 dated 17 October 2014.

I acknowledge receipt of your request for an internal review regarding the above referenced Freedom of Information request. The internal review has been allocated to me to undertake having regard to the provisions of the Freedom of Information Act 2000 (“the Act”).

As I am sure you are aware, the Information Commissioner recommends that internal reviews are undertaken within 20 working days following receipt of the request, in other words, by 14 November 2014.

As part of your internal review request, you have made a new request, namely for copies of the internal correspondence relating to your FOI request. Ordinarily this further request would be dealt with as a separate FOI request, however I will be requesting this information from the relevant departments with a view to responding to this aspect at the same time as I deal with your internal review.

I am currently making enquires with the relevant Council departments in relation to your initial request and I will revert to you once I have the information from them and have had an opportunity to consider the request and response you received in relation to the provisions of the Freedom of Information Act 2000.

Yours Sincerely

Jessica Stockton

show quoted sections

Stockton, Jessica, Croydon Borough Council

3 Attachments

Dear Sir,

 

I refer to your request for an internal review and my acknowledgement of
21 October 2014. I have now had an opportunity to consider your request
pursuant to the provisions of the Freedom of Information Act 200 (“the
Act”) and set out my consideration of the matter below. In addition please
see attached documents, with redactions,  in response to both your further
request and the request for an internal review.

 

In the response to your initial request for: “all correspondence between
the then Chief Executive, the Deputy Chief Executive, the Borough
Solicitor and the head of human resources, after January 2012, on the
matter of Nadine Graham, her employment tribunal and subsequent events”
the Council confirmed that it held information which relates to the
employment of Nadine Graham after January 2012 and went on to rely on the
provisions of the duty of confidentiality in declining to provide the
requested information to you. In response you requested both an
explanation for the delay in responding to you and queried whether your
request could have been satisfied by making redactions to the
documentation to remove the confidential information.

 

You also made an additional request for information as part of your
internal review request, namely you asked to see copies of the internal
correspondence relating to your request. I have dealt with both your
review request and this additional request in this response. Should you
wish to request a review of the handling of your additional request, this
should be submitted to the information team within 40 working days of this
response.  You can do this by outlining the details of your complaint by:

 

Email:              [Croydon Borough Council request email]

 

Writing:           Information Team

London Borough of Croydon

Bernard Weatherill House

7^th Floor - Zone C

                        8 Mint Walk

Croydon CR0 1EA

 

Should you be dissatisfied with the manner in which the internal review
has been conducted, please find details of the Information Commissioner at
the end of this email.

 

 

In your initial request you asked for information pertaining to the
Employment Tribunal of Nadine Graham. I am advised that there was no
employment Tribunal relating to Ms Graham and accordingly the Council does
not hold information such information and I consider that you ought to
have been advised of this fact in the initial response to your request.

 

In respect of your request for information about the delay in dealing with
your initial request:

 

I am advised, and you will have noticed from the acknowledgment email you
received from the information team in July, that their case management
system which is used to log and track the freedom of information requests
was not functioning properly. As a result of this loss of functionality,
 all acknowledgments and reminders had to be sent manually with the net
effect being that reminders about matters such as due dates were not being
sent out. This had a knock on effect in the processing of requests at that
time which was compounded by the information team being short staffed.  

 

As you will see from the correspondence which you have requested and which
is appended in response to your additional request, with appropriate
redactions, initially a specific response was proposed however following
legal advice additional information was sought and there were delays in
provision of this additional information and in chasing up the outstanding
information. Again I am advised that the delays in sending reminders
around collating information was due to the loss of functionality around
the system used for dealing with requests.  Once the data was collated,
legal advice was sought around the nature of the information and whether
or not exemptions were applicable, bearing in mind the sensitivity of the
information in question.

 

On behalf of the Council I apologise for any inconvenience that the delay
in dealing with your request may have caused you and for the fact that it
was significantly out of time.

 

Turning now to the further elements of your request for an internal
review, namely a request that consideration be given to whether
information could still have been provided to you with appropriate
redactions. In considering this aspect, I have assessed the information
provided to me and whether any of the exemptions within the Act are
engaged.

 

As set out below, and in the attached documentation, I have relied on four
exemptions within the Act when considering the nature of redactions which
ought be made to the documentation to enable disclosure to you. The
exemptions I have considered are:

 

1.      Section 40(2) Personal Information – both the personal information
of external and third parties and in certain instances personal
information of junior officers of the Council.

2.      Section 41 – Confidential information and the Common Law duty of
Confidentiality

3.      Section 36 – Qualified persons’ opinion

4.      Section 42 – Legal Professional Privilege – specifically in this
matter the advice privilege rather than litigation privilege. 

 

 

You will note, throughout the documents which are attached, that I have
made redactions of information which fall within the above categories and
which I consider, for the reasons set out below, fall within the
exemptions which are set out in square brackets within the documents.

 

It is often the case that information requested under FOIA includes the
names of employees, for example the author of a document, the senders or
recipients of internal emails or the attendees at a meeting, as it does
here.  You will note that I have redacted details of certain officers from
some of the emails which are attached in response to your requests.  In so
doing, I have not redacted the details of more senior officers or any
officers specifically identified by you as being of interest in relation
to your request. In relation to the junior officers whose details have
been redacted, I have been mindful of the Council's duties under the Data
Protection Act and the interplay between this Act and the provisions of
the Freedom of information Act.  The roles fulfilled by the junior
employees in these circumstances were merely administrative in so far as
they were involved in distributing and responding to internal
correspondence requesting the collation and checking for data and
reminders. Acting as they have in this administrative and junior capacity
I consider that they would have a reasonable expectation that their names
will not be disclosed in this context. Accordingly, the provisions of
Section 40(2) of the Freedom of Information Act 2000 have been applied to
these details and the redactions made in line with this assessment.

 

Furthermore, some of the information you have requested contains personal
data of third parties external to the council and in respect of this
information, you will note that redactions have been made in relation to
such information on the basis of the exemption provided in Section 40(2)
and marked up accordingly on the attached.

 

In relation to the data concerning the subject of your request, Nadine
Graham, you will be aware that Ms Graham is now deceased and as such, the
provisions of section 40 of the Freedom of information Act do not cover
information pertaining to her.

 

However, as the Freedom of Information Act is about disclosure to the
world at large, it is considered that it would be inappropriate to make
certain types of information pertaining to Ms Graham public. Whilst some
requesters may have rights that allow them personally to access the
information -for instance, the Access to Health Records Act 1990 gives the
personal representative of the deceased the right to access their records,
you do not fall within this category of requester. As set out below,  I
consider that the provisions of the exemption in section 41
(confidentiality) are applicable to certain information which the Council
holds regarding Ms Graham and which falls within the ambit of this
request. It is considered, in line with the approach adopted by the
Information Tribunal and the information commissioner as set out below,
that this duty of confidentiality extends beyond death.

 

Section 41 of the Act sets out an exemption from the right to know where
the information requested was provided to the public authority in
confidence. There are two components to the exemption:

•          The information must have been obtained by the public authority
from another person. A person may be an individual, a company, a local
authority or any other “legal entity”. It is not restricted to information
provided verbally or in writing. The exemption does not cover information
which the public authority has generated itself, although it may cover
documents (or parts of documents) generated by the public authority if
these contain confidential information provided by a third party. It is
the information itself, and not the document or other form in which it is
recorded, which needs to be considered.

 

In the current circumstances, the Council in its role as employer was
privy to both personal and sensitive personal information about both Ms
Graham and other employees and former employees. The context in which
employees provide information of this nature to their employers is in the
expectation of confidentiality and not in the expectation that such
information will be made publicly available, especially considering that
the nature of the disclosure which an employee may need to make to an
employer could, if disclosed to the world at large, be regarded as causing
distress, embarrassment or harassment.

 

•          Disclosure of the information would give rise to an actionable
breach of confidence. In other words, if the public authority disclosed
the information the provider or a third party could take the authority to
court.

 

In Pauline Bluck v Information Commissioner and Epsom & St Helier
University Hospitals NHS Trust (EA/2006/0090, 17 September 2007),
concerning a request for information about the requester’s deceased
daughter, the Information Tribunal stated that even though the person to
whom the information relates may have died, action for a breach of
confidence could be taken by the personal representative of the deceased
person. The exemption would therefore continue to apply. This is the
position that has been consistently adopted by both the Information
Commissioner and the Information Rights Tribunal.

 

However, in determining whether disclosure would constitute an actionable
breach of confidence, there is no need to be certain that a personal
representative exists who would be able to take action. The important
thing is to establish in principle that a personal representative might
exist who can take such action. A public authority should not lay itself
open to legal action simply because at the time of the request it is
unable to determine whether or not a deceased person has a personal
representative.

 

In the current context, given the nature of the information and the
context in which it was provided to the Council, an actionable breach of
confidence could arise were the council to disclose the information.

 

In relation to the information which has been withheld from disclosure, it
is considered that the information, which has been provided to the
authority from Ms Graham and which pertains to the her personal and work
circumstances is information which was imparted subject to an obligation
of confidence and furthermore has the necessary quality of confidence.
Whilst the information also includes information provided by officers on
behalf of the Council in response to the information which Ms Graham
disclosed to the Council, it is not possible to provide that information
without disclosing the information which Ms Graham disclosed and to which
it addresses itself. Accordingly, such information is similarly being
withheld on the basis of confidentiality, as to do otherwise would result
in the disclosure of confidential information of Ms Graham by default.

 

Furthermore, it is considered that the Council in these circumstances is
bound by the Common Law duty of Confidentiality which protects a person’s
right to expect that personal information about him or her will be kept
confidential. Information will be protected if it has "the necessary
quality of confidence about it"  and has been imparted in circumstances
importing an obligation of confidence. A court can prevent the disclosure
of confidential information by injunction and, where appropriate, award
damages if unlawful disclosure has been made.

 

There are two main exceptions to the duty of confidence. Firstly, public
interest can override the duty. For example, if the disclosure of the
information was undertaken with a view to preventing danger to third
parties. It is not considered that disclosure as requested here is for
such a purpose or would serve such a purpose. The Council is also mindful
of the potential impact disclosure of such information could have on the
family of Ms Graham. Secondly, disclosure of confidential information may
be permitted or required by statute or court order. As set out above, it
is not considered that the duty of confidentiality owed by the Council in
this case is overridden by statutory provisions nor is there a court order
for disclosure.

 

Accordingly, the Council will not be disclosing to you, information which
it considers will be in breach of the duty of confidentiality owed to Ms
Graham and redactions have been made accordingly in the attached
documentation.

 

Finally, there are three draft documents in respect of which the qualified
person’s opinion has been sought under the provisions of section 36. The
draft documentation contains tracked changes and officers’ drafting,  is
addressed to an external third party and contains both personal
information about the external third party and confidential information
relating to Ms Graham. But for the application of Section 36 to this draft
documentation, the Council would be redacting the contents on the basis of
the exemptions in Section 40(2) and 41 for the reasons discussed earlier.
  

 

The Qualified person considered that officers would be likely to feel
inhibited in offering frank and potentially contrary views as to how to
deal with potentially complex and sensitive staffing issues and matters
pertaining to former staff members and tragically, as here, the death of a
former employee. Third parties corresponding with the Council on such
sensitive matters are likely to feel similarly inhibited in their
discussions and correspondence with the Council if they know any frank
discussions held with the expectation of privacy may be subject to
disclosure.

 

Furthermore the Qualified person considered that it is necessary to
withhold the information so as not to prejudice the effective conduct of
public affairs as release of the draft documents into the public domain
would hinder the council’s ability to offer an effective public service if
it was unable to deal appropriately and sensitively with matters such as
the death of a former employee without fear that private and draft
deliberations would be released into the public domain.

 

Public interest test

In light of the qualified person’s opinion, it is necessary to consider
the public interest test and more specifically whether the public interest
in withholding the information outweighs the public interest in disclosure
of the information in question.

 

I set out below my consideration of the public interest test as it
pertains to your request. I should point out that many of the
considerations set out above in relation to prejudice also have a bearing
on public interest.

 

The following aspects favour disclosure:

 

•          There is a presumption that members of the public have an
interest in how the council is run and the processes and procedures in
place to deal with matters of this nature;

•          the general argument in favour of disclosure that it promotes
transparency, accountability and participation

 

Whilst it is a fundamental tenant of freedom of information  that greater
openness  fosters a greater level of trust by the public which can only
serve to improve the quality of the decision making process, there is
similarly recognition that there are circumstances where the public
interest in having information which is held by a public authority needs
to be tempered. It is for this reason that any decision as to the
application of section 36 is still subject to the public interest test.

 

The following aspects favour non-disclosure:

 

•          the nature of the documents under discussion are such that they
are both personal to third parties and contain confidential information of
former council employees; 

•          the documentation under consideration were draft documents
 which were subject to amendment;

•          the inhibiting effect disclosure of these documents would have
on the nature of the information which officers and third parties would be
comfortable including in the responses and drafting suggestions and the
openness with which officers and third parties would be able to discuss
issues affecting the council and those external third parties;

•          the effect of disclosure would or would be likely to stifle
open debate and sharing of views between officers and third parties which
would impede the quality of decision making and solutions which could be
achieved and such difficult situations dealt with in an appropriate and
sympathetic way.

 

In light of the above, I consider that the public interest does not favour
disclosure of the information falling within Section 36 to you. 

 

In relation to the application of the section 42 legal professional
privilege exemption to information as set out in the attached, the Council
is specifically relying on advice privilege.

 

Advice privilege applies where no litigation is in progress or
contemplated. It covers confidential communications between the client and
lawyer, made for the dominant  purpose of seeking or giving legal advice.
The advice must have been given in a legal context; for instance,  in this
instance it pertained to legal rights and obligations about the nature of
the information and whether there were any applicable exemptions or other
restrictions on the Council in disclosing the requested information given
the sensitivity of the information in question. I consider that section 42
has been engaged as set out in the attached documentation and it is
according necessary to consider the public interest test in relation to
disclosure.

 

The general public interest inherent in this exemption will always be
strong due to the importance of the principle behind Legal Professional
Privilege : safeguarding openness in all communications between client and
lawyer to ensure access to full and frank legal advice, which in turn is
fundamental to the administration of justice. In addition, as the
information requested concerned particularly sensitive information it was
imperative that the council ensure that it was acting appropriately. In
Crawford v Information Commissioner & Lincolnshire County Council
(EA/2011/0145) the Tribunal set out that in order to override the inherent
public interest associated with legal professional privilege there need to
be clear, compelling and specific justification that at least equals the
public interest in protecting the information. It is not considered that
there is such a justification in this case, bearing in mind the
circumstances of this matter and the fact that it pertains to both
personal information of third parties and confidential information of a
former council employee. As such it is considered that the public interest
in non-disclosure outweighs the public interest in disclosure in this
instance and it is not proposed that the information which has been
redacted will be disclosed to you.

 

If you remain dissatisfied with the response you have received from the
Council in respect of this internal review, you have the right to apply
directly to the Information Commissioner for a decision. The Information
Commissioner can be contacted at:

 

Information Commissioner’s Office

Wycliffe House

Water Lane

Wilmslow

Cheshire SK9 5AF

 

 

Yours faithfully

 

Jessica Stockton

Corporate Solicitor 

 

Democratic & Legal Services
Chief Executive's Department
Annexe 4, Zone OG

Bernard Weatherill House

8 Mint Walk

Croydon

Surrey

CR0 1EA

 

 

 

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