Penn Report
Dear Croydon Borough Council,
Please send me a copy of the Penn Report. Where redactions are necessary please state the reasons why as per FOI Acts
Yours faithfully,
Shona Scott
Information Team Croydon
Digital Services
Assistant Chief Executive Directorate
Bernard Wetherill House
7th Floor, Zone B
Croydon
CR0 1EA
Contact: Information Team
[Croydon Borough Council request email]
NOTE: Please do not edit the subject line when replying to this email. If
you have a processing request, please ensure you quote that reference in
your emails to us.
DEAR Shona Scott
Freedom of information request - FOI/6236
Subject: Penn Report
We are just emailing you to update you on your open Information Request.
We are currently in the process of updating our systems and part of this
update will mean that your open Information Request has been assigned a
new reference: FOI/6236
Thank you in advanced for your patients patience and whilst we will
continue top process your request. We will issue a response or update to
you as soon as we are able.
Unfortunately, the Council is currently experiencing a delay in our
response times due to demand and resource. As an organisation we are aware
of our legal duties under the legislation and are making every effort to
improve our position and respond to requests within our statutory
timeframes as quickly as possible. All requests are being monitored and
continually reviewed to provide you with an expected date for disclosure.
London Borough of Croydon takes its role as a Data Controller seriously
and would like to thank you for your continued patience and understanding
whilst we improve our service to you.
Kind Regard
Information Management Team
Croydon Digital Services
Assistant Chief Executive Directorate
7th Floor, Zone B
Bernard Weatherill House
8 Mint Walk
Croydon CR0 1EA
Information Team Croydon
Digital Services
Assistant Chief Executive Directorate
Bernard Wetherill House
7th Floor, Zone B
Croydon
CR0 1EA
Contact: Information Team
[Croydon Borough Council request email]
Dear Shona Scott
Request FOI/6236
Further to your request received on 10/10/2022, I confirm that the Council
has now considered your request under the Freedom of Information Act
2000. We refer to your information request for “a copy of the Penn
Report”.
1. Background
On 19 November 2020, at an Extraordinary meeting, the Council received a
Report in the Public Interest (“RIPI”) issued by the Council’s external
auditors, Grant Thornton. The RIPI detailed significant issues relating
to the Council’s financial position, its financial governance and its
overall effectiveness as an organisation.
The Council accepted the findings of the report and agreed a comprehensive
action plan to address the 20 recommendations made by Grant Thornton.
Following receipt of the RIPI, the Council commissioned an independent
investigation of senior management actions regarding the findings of the
RIPI to assess what, if any, formal action may be required.
Running in parallel, in response to the RIPI, there followed several
further reviews and reports that commented on and made recommendations
relating to the Council’s financial position, governance and
effectiveness. Those reports include the Strategic Review of Companies
and Entities and the Non-Statutory Rapid Review of the Council, undertaken
by the Ministry for Housing, Communities and Local Government (“MHCLG
Rapid Review report”). Both reports identified significant issues
relating to the Council’s financial position and governance and are
published.
On 26 January 2022 a second RIPI was issued by Grant Thornton into the
refurbishment of Fairfield Halls.
As well as reviews and reports commissioned by the Council, other
published reports include the report of the House of Commons Housing,
Communities and Local Government Committee on Local authority financial
sustainability and the section 114 regime which can be accessed here:
[1]https://committees.parliament.uk/publica....
Although this inquiry was not into the situation at Croydon itself, what
happened at Croydon is explored as a case study (see, in particular, the
Annex).
Independent Investigation
On 10 November 2020, the Council commissioned an independent investigation
in response to the first RIPI.
On 12 November 2020, Richard Penn, was appointed to undertake the
investigation.
On-going investigation
Also of note is the investigation being conducted by Kroll Associates (UK)
Limited (Kroll) on behalf of the Council. Kroll are undertaking an
independent, fact-finding review of the circumstances and decision-making
process leading up to and following the Council’s approval for Brick by
Brick Ltd to undertake the refurbishment of Fairfield Halls.
Kroll’s investigation will aim to provide clarity over the probity and
integrity of decision making around the Fairfield Halls project, the
reasons for the cost overrun and late delivery and the governance failures
and whether there is evidence of potential wrongdoing by relevant
individuals.
At the conclusion of the investigation, Kroll will produce an
evidence-based report that will conclude on these matters in line with the
evidence gathered. The Council will also be able to use the report to
inform the Council’s response to the outstanding actions arising from the
Penn report.
2. Response
This is the factual background against which we have carefully considered
your request for the Report.
As set out in more detail below, we believe that the Report is exempt from
disclosure under the Act mainly due to the timing of your request.
Section 31(1)(g)
Under section 31(1)(g) of the Act, information is exempt it its disclosure
would, or would be likely to, prejudice the exercise by the Council if its
functions for specified purposes which include ascertaining whether any
person is responsible for any conduct which is improper.
The Council function in this case is the on-going and confidential
investigation being conducted by Kroll. The Report, at least in part,
relates to and overlaps with the investigation.
As Section 31 is a qualified exemption, we have considered the public
interest in deciding to disclose or withhold the information you have
requested. We acknowledge that we can apply this exemption only if, in all
the circumstances of the case, the public interest in maintaining the
exemption outweighs the public interest in disclosing the information.
The public interest factors that we have considered and the weight
attached to them are set out below.
There is an important public interest, with respect to the Council’s
financial position and the issuing of the first and second RIPI in
particular, in openness and transparency which go hand in glove with
accountability, scrutiny and public confidence in financial probity. In
order words, disclosure of the Report would be of value.
We then weighed those factors against the competing considerations we have
already set out above and concluded that the scales weigh heavily in
favour of maintaining the section 31(1)(g) exemption.
Publication of the Report now would, or would be likely to, prejudice the
completion of the Kroll investigation as well as the outcome. It would, or
would be likely to, prejudice any potential actions arising from the
Report and the Kroll investigation. It is imperative in the Council’s view
that that the risks of publishing the Report prematurely are avoided so
that the Council’s position, in respect of all possible action, is fully
reserved.
To disclose the Report at this stage, would be unfair and would severely
undermine the Council’s investigative processes and the public interest in
ensuring that the Council does not prejudice its ability to act against
potential wrongdoing.
The Report, as you mention, was commissioned by the Council and, from the
very outset the Council has been and remains committed to being open about
the Report.
Often in a FOI context, as in this instance, timing can be a critical
factor in determining the outcome of a public interest balancing exercise.
Also, as important as the factors in favour of disclosure are, the weight
they carry is reduced because, as mentioned in the background information,
there are other reviews and reports already in the public domain which to
an extent overlap with the content of the Report.
Section 40(2)
Under section 40(2) of the Act a request for information which constitutes
the personal data of an individual other than the requester is exempt if
disclosure of the information to a member of the public would breach any
of the data protection principles set out in the UK GDPR.
The Report contains the personal data of a number of individuals. Some of
these individuals are the subject of adverse comment and have objected to
the publication of the Report. It is necessary therefore to consider
whether disclosure of the Report would contravene any of the data
protection principles.
According to the first data protection principle, personal data must be
processed lawfully and fairly and in a transparent manner. There is also a
requirement for disclosure to be necessary in pursuance of legitimate
interests which are not overridden by the interests of others.
Assessing whether disclosure is fair involves considering the possible
consequences of disclosure on those who may be adversely affected,
reasonable expectations of privacy and confidence, the need to follow a
fair process in all the circumstances of the case and the public interest
in transparency, accountability and understanding in relation to what has
happened at the Council which led to the first and second RIPI and the
other independent reports.
As acknowledged, there are arguably powerful legitimate interests in the
publication of the Report but disclosure is not necessary in response your
request and/or is overridden by the interests and legal rights of the
individuals who may be adversely affected by the publication of the
Report. Publication of the Report requires a fair balancing of competing
interests and rights and a careful management of the legal risks.
These issues are of considerable significance and complexity. This is why
the Council has, in accordance with legal advice, consulted those who were
the subject of adverse comment within the Report to establish their views
on publication and to give them the opportunity to identify the specific
paragraphs of the Report they would be opposed to be published and the
reasons why.
All responses received are being carefully assessed and that assessment
will be reported to the Council’s Appointments and Disciplinary Committee
for a final decision on publication of the Report on a balance of the
competing interests and risk.
In all the circumstances, publication of the Report at this stage, when
there are on-going investigations and without proper assessment of the
issues, objections and legal risks would neither be lawful nor fair.
This means that disclosing the personal data of those who may be adversely
affected by the publication of the Report is absolutely exempt under the
Act.
If you are dissatisfied with the way the Council has handled your request
under the Freedom of Information Act, you may ask for an internal review.
This should be submitted to us within 40 working days of this response.
You can do this by outlining the details of your complaint by:
Email: [2][Croydon Borough Council request email]
Writing: Information Team
London Borough of Croydon
Bernard Weatherill House
Floor 7 - Zone B
8 Mint Walk
Croydon, CR0 1EA
Any requests received after the 40 working day time limit will be
considered only at the discretion of the council.
If you are not content with the outcome of the 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 sincerely,
Information Team
Croydon Council
References
Visible links
1. https://committees.parliament.uk/publica...
2. mailto:[Croydon Borough Council request email]
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