Persitent Complainants procedure

The request was refused by Scarborough Borough Council.

Dear Scarborough Borough Council,I request under the F.O.I.A, all documentation from a Mr Adrian Porter being placed under the SBC unreasonably and unreasonable persistent complainants procedure,I need to see evidence that
1. All procedures were followed ,when this man was put under the procedure.

2. All written documentation from the Senior officers at SBC who placed Adrian Porter under the procedure.

Yours faithfully,

Rebecca Porter

Diane Cross, Scarborough Borough Council

Dear Ms Porter

 

Email Address: [FOI #208017 email]

FOI Request Reference: FOIA3212 - Persistent Complainants Procedure

 

Thank you for your written communication of 22/04/2014.

 

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 (FOIA3212) in all communications.

 

Yours sincerely

 

Freedom of information Officer

 

 

Freedom of Information Officer

Democratic and Legal Services

Scarborough Borough Council

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

Tel: 01723 232323

f: 0870 2384159 (Starfax)
w: [2]www.scarborough.gov.uk

 

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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 'Persitent Complainants procedure'.

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

Yours faithfully,

Rebecca Porter

FOI, Scarborough Borough Council

Dear Ms Porter

 

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

 

“…all documentation from a Mr Adrian Porter being placed under the SBC
unreasonably and unreasonable persistent complainants procedure,I need to
see evidence that

1. All procedures were followed ,when this man was put under the
procedure.

 

2. All written documentation from the Senior officers at SBC who placed
Adrian Porter under the procedure.”

 

Response

 

Although I am sure you are already aware of this given the very public
nature of the website through which you have made your request, please
note that where information is disclosed under the FOIA, it is disclosed
into the public domain and not merely to the applicant. The Council is (as
is every public body subject to the FOIA) therefore required to take this
into account when assessing whether any exemptions apply.

 

It is useful to explain the general process whereby the Council’s Senior
Management Team consider the use of the unreasonably persistent and
unreasonable complaint behaviour policy (‘the Policy’) which can be
accessed via the following link:
[1]http://democracy.scarborough.gov.uk/mgCo.... The
Policy is derived from the guidance issued by the Local Government
Ombudsman (LGO) which can be accessed via their website at
[2]www.lgo.org.uk.

 

Where any Officer considers that the complaint behaviour of any individual
is becoming unreasonable, they may refer the matter to the Senior
Management Team for consideration under the Policy. That Officer, or their
line manager, will then attend the next meeting of the Senior Management
Team to present a verbal report on the matter, giving details of any
corporate complaint made by that individual and how this has been dealt
with. The Officer will ordinarily take along copies of any correspondence
from the individual concerned which demonstrate their behaviour. The
Officer will explain how the behaviour of the individual falls within the
Policy, often by reference to the non-exhaustive list of examples of
unreasonable complaint behaviour set out within that Policy.

 

The Senior Management Team will then consider whether the individual’s
behaviour is unreasonably persistent and/or unreasonable. At first
instance, the Officer is often asked to send the individual a warning
about their behaviour, however in some cases a decision to declare an
individual’s behaviour as unreasonably persistent and/or unreasonable can
be made without a warning being given.

 

The decision of the Senior Management Team (and the reasons for that
decision), is then set out to the individual concerned.

 

In the context of your request, the only recorded information regarding
this process is the Policy itself (the link to which is set out above),
and copies of the correspondence between the individual and the Council. A
written report was not made to the Senior Management Team as this is not
standard practice.

 

The Council does therefore hold some information relevant to your request,
specifically correspondence between the Council and the individual
concerned (including the email letter setting out the decision made under
the Policy and the rationale for the same), and communications for the
purpose of legal advice. It is the Council’s position that this
information is exempt from disclosure under:

 

(a)    section 40(2) of the FOIA, which applies where the information
sought is third party personal data, the disclosure of which into the
public domain would be a breach of the data protection principles; and

 

(b)   section 42(1) of the FOIA, which states that information in respect
of which a claims to legal professional privilege could be maintained in
legal proceedings is exempt information.

 

Section 40(2) – Third Party Personal Data

 

This is an absolute exemption, meaning that where it applies, there is no
requirement for the Council to undertake consideration of a public
interest test. That said, consideration must be given to whether the
disclosure into the public domain would contravene at least one of the
data protection principles pursuant to the Data Protection Act 1998 (DPA).

 

The ICO have issued comprehensive guidance about the application of the
exemption (‘the Guidance’) which can be accessed via the following link:

 

[3]http://ico.org.uk/for_organisations/guid...

 

It is the Council’s position that disclosure of the information into the
public domain would contravene at least one of the data protection
principles.

 

Of most relevance is the first data protection principle, which states
that :

 

Personal data shall be processed fairly and lawfully and, in particular,
shall not be processed unless-

 

(a)   at least one of the conditions in Schedule 2 is met, and

 

(b)   in the case of sensitive personal data, at least one of the
conditions in Schedule 3 is also met.

 

The personal data in question is held by the Council for the purposes of
administering the corporate complaints process. As part of this process,
complainants have a reasonable expectation that their personal data will
not be disclosed into the public domain.

 

The rights of the individual must be balanced against any legitimate
interest in disclosure that the public may have. It is accepted that the
public have a legitimate interest in transparency and ensuring that public
bodies deal with corporate complaints appropriately, however we do not
believe that disclosure of the information in question is necessary to
meet this legitimate interest. Should an individual be dissatisfied with
the way in which the Council has dealt with their complaint, then they
have the right to make a complaint to the LGO, who is able to access any
relevant information held by the Council to make an independent judgement
as to whether the Council has acted improperly. The right of complaint to
the LGO satsifies the public interest in transparency and ensuring that
complaints are dealt with appropriately, and it would certainly not be
proportionate or fair to disclose an individuals personal data into the
public domain.

 

In addition, if the Council were to disclose personal data held for the
purpose of administering the corporate complaints system, this may act to
deter other individuals from making complaints in future, which would
certainly not be in the public interest.

 

Section 42(1) – Legal Professional Privilege

 

Section 42(1) of the FOIA states:

 

Information in respect of which a claim to legal professional privilege
or, in Scotland, to confidentiality of communications could be maintained
in legal proceedings is exempt information.

 

Legal professional privilege covers both litigation privilege and advice
privilege.

 

Litigation privilege applies to confidential communications made for the
purpose of providing or obtaining legal advice about proposed or
contemplated litigation. There must be a real prospect or likelihood of
litigation, rather than just a fear or possibility. For information to be
covered by litigation privilege, it must have been created for the
dominant (main) purpose of giving or obtaining legal advice, or for
lawyers to use in preparing a case for litigation.

 

Advice privilege applies where no litigation is in progress or
contemplated. It covers confidential communications between the client and
lawyer, made for the dominant (main) purpose of seeking or giving advice.
The legal adviser must have given advice in a legal context; for instance,
it could be about legal rights, liabilities, obligations or remedies.

 

It is the Council’s position that some of the information attracts legal
professional privilege because it is confidential advice provided by a
lawyer to his/her client (the Council) made for the dominant purpose of
giving advice.

 

The importance of the principle behind legal professional privilege is
well established; which is to safeguard 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. Disclosing
the information would undermine the long established principle behind
legal professional privilege.

 

Certainly there must be strong arguments to override advice privilege,
such as where there is:

 

·         a large amount of money involved;

·         a large amount of people affected;

·         a lack of transparency in the Council’s actions;

·         misrepresentation of advice that was given; or

·         selective disclosure of part of the advice given.

 

The arguments would also need to be backed by cogent evidence, for example
where there are allegations of misrepresentation there must be more than a
mere suggestion, or an unsupported opinion that this is so.

 

In any case, and as has been mentioned above, should any member of the
public be dissatisfied with the way in which the Council has dealt with a
complaint, they have the right to refer the matter to the LGO. The LGO is
able to access any relevant information held by the Council to make an
independent judgement as to whether the Council has acted improperly. The
right of complaint to the LGO satsifies the public interest in ensuring
transparency, and the strong public interest in maintaining the principle
of legal professional privilege places the balance firmly towards
maintaining the exemption.

 

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 Freedom of Information, Scarborough Borough Council,
Town Hall, St Nicholas Street, Scarborough, North Yorkshire, YO11 2HG or
email [4][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: 0303 123 1113 | Fax: 01625 524510 | Web: [5]www.ico.org.uk.

 

Yours sincerely

 

 

David Kitson
Solicitor

Deputy Monitoring Officer

Regulatory and Governance Manager

Democratic and Legal Services

Scarborough Borough Council

 

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