Secret Agreement allowing suspended Acting CEO to depart Wirral Council

Paul Cardin 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.

Response to this request is long overdue. By law, under all circumstances, Wirral Metropolitan Borough Council should have responded by now (details). You can complain by requesting an internal review.

Dear Wirral Metropolitan Borough Council,

On 3rd October 2012, former Acting Chief Executive; former Finance Director, and suspended senior officer Ian Coleman received permission, as part of a protected process, concealed from public view, to leave his employment with Wirral Council. According to the press, this is believed to involve the granting of an early retirement package worth £82,000.

http://www.wirralglobe.co.uk/news/996522...

Above is a link to a news story published the next day in the Wirral Globe, which reported this matter. The comments beneath the article also indicate the strength of feeling amongst an outraged public.

The former CEO, Jim Wilkie, who himself is the subject of another freedom of information request, currently breaching the FOI Act:

http://www.whatdotheyknow.com/request/ag...

...admitted to years of learning disabled abuse by the council. This was followed by the departure of two senior social services officers in January of this year. It is still not clear whether these two individuals WERE leaving as a result of their involvement in abuse AND whether they signed compromise agreements with gagging clauses. As of today, despite several assurances, Wirral have not responded to the following FoI request and are many months overdue and again in breach of the FOI Act:

http://www.whatdotheyknow.com/request/da...

The Wirral public have still yet to see any sign of accountability or a reckoning towards the as yet anonymous employees who perpetrated this sustained abuse against learning disabled people over a period of several years.

There were also abuses of power, as found by two independent investigations – but which remain unpunished. Admission to learning disabled abuse here (See 7.1):

http://democracy.wirral.gov.uk/mgConvert...

Please provide all information you have which is connected to the departure of Mr Coleman. This will relate to meetings, hearings, discussions, reports, and may be stored in the form of recorded minutes, verbatim and non-verbatim notes, emails, letters, memos, aide memoirs, documents, whether electronically or manually stored.

Please confirm and provide details of the existence of any payments made to Mr Coleman in relation to his departure. This will indicate which position / role he was fulfilling and the total amount(s) of final salary pension monies released attached to that role. This will include precise amounts, the method of payment and the budget from which the payment was / is to be derived.

Please confirm details of the existence of any "compromise agreement" or "confidentiality agreement" or “compromise contract” or "confidentiality contract" agreed and signed by Mr Coleman in relation to this departure or to his involvement in abuse or malpractice. This will include confirmation and description of any 'gagging clauses' and whether a positive / neutral / negative reference was provided regarding potential future employment.

In light of the [strangely] recent discovery by Wirral’s Chief Internal Auditor David Garry that “compromise contracts” were NOT being recorded but were being arranged behind closed doors, beyond any councillor scrutiny and beyond view of the public:

http://democracy.wirral.gov.uk/documents...

…please describe the exact process that was followed and supply the documents, reports, aide memoirs, notes, etc. that were created and recorded as part of the NEW process. Please take a deep breath before you do this, and ponder your overriding duty to act not out of self-interest, but fairly and impartially in the unbending service of us the public.

Please provide the names and addresses of all organisations / bodies involved in providing legal advice to Mr Coleman. Please also provide details of meetings which occurred including times, dates and matters discussed.
Please confirm the details of any disciplinary charges either planned or levelled against Mr Coleman in relation to any failures / malpractice / abuse which may or may not have brought about his departure from the Council.

If Mr Coleman was provided with a "clean bill of health" regarding his time served at the council, please provide a copy of this / these document(s).

Please redact documents as you see fit, and remove any personally sensitive information in accordance with the requirements of the Data Protection Act.”

Please be mindful that if Mr Coleman was the "Acting Chief Executive" and fulfilling that role, and paid / rewarded in line with that role as part of this secret agreement, I am making you aware that case law within this area, combined with the legitimate and compelling public interest demands a far greater degree of openness,

Yours faithfully,

Paul Cardin

Dear Wirral Metropolitan Borough Council,

Further to the publicised £82,000 figure, please include the total amounts of any additional severance payments, the existence of which may not have been referred to within the publicity material released by Wirral Council.

Indeed this figure may be calculated subsequent to 3rd October 2012. Please look for it, and if found, supply it.

Given the ongoing climate of ongoing scandal on Wirral, the public interest is building very quickly on this important case, and I believe it will need to be satisfied with early answers,

Yours faithfully,

Paul Cardin

Paul Cardin left an annotation ()

For information:

Excerpt from:

http://www.auditcommission.gov.uk/SiteCo...

Within local government, there is a new requirement for authorities to publish in their statements of accounts the individual financial details of any severance payments to all senior officers earning over £50,000. Those earning over £150,000 are to be identified by name, with all others by post title. These provisions form part of a wider requirement to publish all aspects of remuneration of senior officers, such as salaries and bonuses, and come into effect fully on 1 April 2010.

InfoMgr, FinDMT, Wirral Metropolitan Borough Council

Good Morning

 

Thank you for your request below, Wirral Council can confirm there were no
additional payments.  Please see link where the report has been published
on our web site.

[1]http://democracy.wirral.gov.uk/ieListDoc...

 

Thank you for your enquiry, kind regards

 

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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show quoted sections

ScarletPimpernel left an annotation ()

"concealed from public view, to leave his employment with Wirral Council."

It was decided at a public meeting (which the public were allowed to attend), how is that "concealed from public view"?

Paul Cardin left an annotation ()

SP - Do you have a relevant link please? Thanks

Paul Cardin left an annotation ()

...a link to the relevant Investigating and Disciplinary Committee meeting with full details that is. thanks

InfoMgr, FinDMT, Wirral Metropolitan Borough Council

Good Morning

 

Thank you for your request below, Wirral Council can confirm this is
information held with a view to publication at a future date and considers
this information exempt from disclosure under section 22 FOIA 2000 as
information that the authority is intending to publish at a future date

 

You have the right under Section 17 of the Freedom of Information Act 2000
to ask for an internal review of the refusal of the information
requested.  Please would you direct any request for an internal review to
Mr Michael Rowan, Legal and Member Services, Department of Law, HR and
Asset Management, Town Hall, Brighton Street, Wallasey, CH44 8ED

 

You do also have the right to complain to the information Commissioner, if
you are dissatisfied with the outcome of any internal review, whose office
is situated at:  Information Commissioner's Office

Wycliffe House

Water Lane

Wilmslow

Cheshire SK9 5AF

Tel: 08456 30 60 60 or 01625 54 57 45

Fax: 01625 524510  www.ico.gov.uk <[1]http://www.ico.gov.uk/>

 

 

Thank you for your enquiry, 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

 

 

 

show quoted sections

    

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References

Visible links
1. http://www.ico.gov.uk/
http://www.ico.gov.uk/

ScarletPimpernel left an annotation ()

I was referring to the E&A Committee, the I&D Committee stuff is planned to be published "by the end of the year [2012]", however there are references to it if you know where to look on Wirral Council's website.

ScarletPimpernel left an annotation ()

As requested, here is a link to the Special E&A Committee, http://democracy.wirral.gov.uk/ieListDoc... . The reference to the I&DC is here http://democracy.wirral.gov.uk/ieListDoc... .

That deals with the Bill Norman/Ian Coleman bit, the two Davids (Green and Taylor-Smith) are still a bit of a mystery, as to reveal what I know would compromise a source.

Dear InfoMgr, FinDMT,

I have requested a diverse range of information and now seek some further clarification.

In order for me to proceed, please re-read my original request and respond more precisely on the nature of the information which you have a settled intention to publish to the general public in the future.

OR... confirm the following:

o Apart from the existence of 'additional payments', which was previously dealt with, the authority is engaging a Section 22 exemption on the remaining full range of diverse information which I have requested.

Once I have your response, which I hope arrives this week, I will consider whether to request an internal review or not,

Yours sincerely,

Paul Cardin

Paul Cardin left an annotation ()

Thanks for links SP. Have seen all that.

Process was 'concealed from public view', as stated in the request some time ago.

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 'Secret Agreement allowing suspended Acting CEO to depart Wirral Council'.

You appear to have ignored my email, sent on 5th November, which read as follows:

From: Paul Cardin

5 November 2012

Dear InfoMgr, FinDMT,

I have requested a diverse range of information and now seek some further clarification.

In order for me to proceed, please re-read my original request and respond more precisely on the nature of the information which you have a settled intention to publish to the general public in the future.

OR... confirm the following:

o Apart from the existence of 'additional payments', which was previously dealt with, the authority is engaging a Section 22 exemption on the remaining full range of diverse information which I have requested.

Once I have your response, which I hope arrives this week, I will consider whether to request an internal review or not,

Yours sincerely,

I gave you the opportunity to clarify, but my reply DID NOT arrive that week and I am still waiting for a response.

Please take the above into account and carry out the internal review according to the FOIA i.e. within 20 working days, or within 40 working days if there are exceptional circumstances,

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

Yours faithfully,

Paul Cardin

InfoMgr, FinDMT, Wirral Metropolitan Borough Council

Good Morning

 

Thank you for your further correspondence, Wirral Council would like to
refer you to original reply sent 5^th November 2012 to confirm this is
information held with a view to publication at a future date and considers
this information exempt from disclosure under section 22 FOIA 2000 as
information that the authority is intending to publish at a future date.

 

Thank you for your enquiry, 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

 

 

 
 

show quoted sections

Paul Cardin left an annotation ()

Reassuring the council that they will be in the breach of the law if they don't, I've just phoned them and asked them to acknowledge my request for an internal review and ACT upon it.

InfoMgr, FinDMT, Wirral Metropolitan Borough Council

Good Afternoon

 

Wirral Council acknowledges your request for an internal review; this has
been passed to the department of Law HR and asset management.

Thank you for your correspondence, 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

 

 

show quoted sections

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...

Paul Cardin left an annotation ()

Dear InfoMgr, FinDMT,

Please can you supply me with the findings of the internal review, which was requested last year, just before you went into the 3 month monitoring period, imposed by the Information Commissioner as a result of your poor timeliness?

Yours sincerely,

Paul Cardin

Corrin, Jane, Wirral Metropolitan Borough Council

 

 

Dear Mr Cardin,

 

I refer to your request for information contained in your email of 5
October. Your request was as follows:-

Dear Wirral Metropolitan Borough Council,

On 3rd October 2012, former Acting Chief Executive; former Finance
Director, and suspended senior officer Ian Coleman received permission,
as part of a protected process, concealed from public view, to leave his
employment with Wirral Council. According to the press, this is believed
to involve the granting of an early retirement package worth £82,000.

[1]http://www.wirralglobe.co.uk/news/996522...

Above is a link to a news story published the next day in the Wirral
Globe, which reported this matter. The comments beneath the article also
indicate the strength of feeling amongst an outraged public.

The former CEO, Jim Wilkie, who himself is the subject of another freedom
of information request, currently breaching the FOI Act:

[2]http://www.whatdotheyknow.com/request/ag...

...admitted to years of learning disabled abuse by the council. This was
followed by the departure of two senior social services officers in
January of this year. It is still not clear whether these two individuals
WERE leaving as a result of their involvement in abuse AND whether they
signed compromise agreements with gagging clauses. As of today, despite
several assurances, Wirral have not responded to the following FoI
request and are many months overdue and again in breach of the FOI Act:

[3]http://www.whatdotheyknow.com/request/da...

The Wirral public have still yet to see any sign of accountability or a
reckoning towards the as yet anonymous employees who perpetrated this
sustained abuse against learning disabled people over a period of several
years.

There were also abuses of power, as found by two independent
investigations – but which remain unpunished. Admission to learning
disabled abuse here (See 7.1):

[4]http://democracy.wirral.gov.uk/mgConvert...

Please provide all information you have which is connected to the
departure of Mr Coleman. This will relate to meetings, hearings,
discussions, reports, and may be stored in the form of recorded minutes,
verbatim and non-verbatim notes, emails, letters, memos, aide memoirs,
documents, whether electronically or manually stored.

Please confirm and provide details of the existence of any payments made
to Mr Coleman in relation to his departure. This will indicate which
position / role he was fulfilling and the total amount(s) of final salary
pension monies released attached to that role. This will include precise
amounts, the method of payment and the budget from which the payment was
/ is to be derived.

Please confirm details of the existence of any "compromise agreement" or
"confidentiality agreement" or “compromise contract” or "confidentiality
contract" agreed and signed by Mr Coleman in relation to this departure
or to his involvement in abuse or malpractice. This will include
confirmation and description of any 'gagging clauses' and whether a
positive / neutral / negative reference was provided regarding potential
future employment.

In light of the [strangely] recent discovery by Wirral’s Chief Internal
Auditor David Garry that “compromise contracts” were NOT being recorded
but were being arranged behind closed doors, beyond any councillor
scrutiny and beyond view of the public:

[5]http://democracy.wirral.gov.uk/documents...

…please describe the exact process that was followed and supply the
documents, reports, aide memoirs, notes, etc. that were created and
recorded as part of the NEW process. Please take a deep breath b before
you do this, and ponder your overriding duty to act not out of
self-interest, but fairly and impartially in the unbending service of us
the public.

Please provide the names and addresses of all organisations /bodies
involved in providing legal advice to Mr Coleman. Please also provide
details of meetings which occurred including times, dates and matters
discussed. Please confirm the details of any disciplinary charges either
planned or levelled against Mr Coleman in relation to any failures /
malpractice / abuse which may or may not have brought about his departure
from the Council. If Mr Coleman was provided with a "clean bill of
health" regarding his time served at the council, please provide a copy
of this /these document(s).

Please redact documents as you see fit, and remove any personally
sensitive information in accordance with the requirements of the Data
Protection Act.”

Please be mindful that if Mr Coleman was the "Acting Chief Executive" and
fulfilling that role, and paid / rewarded in line with that role as part
of this secret agreement, I am making you aware that case law within this
area, combined with the legitimate and compelling public interest demands
a far greater degree of openness,

On 6 October 2012, you made an additional request for information as
follows:

 

Dear Wirral Metropolitan Borough Council,

Further to the publicised £82,000 figure, please include the total
amounts of any additional severance payments, the existence of which may
not have been referred to within the publicity material released by
Wirral Council. Indeed this figure may be calculated subsequent to 3rd
October 2012. Please look for it, and if found, supply it.

Given the ongoing climate of ongoing scandal on Wirral, the public
interest is building very quickly on this important case, and I believe
it will need to be satisfied with early answers

 

The Council responded to these requests for information  on 2 November
2012 ,by providing a link to a report considered by the Council’s
Employment and Appointments Committee dated 3 October 2012, which
considered the application by the then Acting Chief Executive, Mr Ian
Coleman, for early voluntary retirement. This link also provided the
decision and minute made by that Committee .

 

On 5 November 2012, the Council also indicated to you  that they were
relying on the exemption contained in Section 22 of the Freedom of
Information Act 2000,that information was held by the Council with a view
to publication at a future date. On 5 November 2012 you sought
clarification as follows:-

 

Dear InfoMgr, FinDMT,

I have requested a diverse range of information and now seek some further
clarification.

In order for me to proceed, please re-read my original request and
respond more precisely on the nature of the information which you have a
settled intention to publish to the general public in the future.

OR... confirm the following:

o Apart from the existence of 'additional payments', which was previously
dealt with, the authority is engaging a Section 22 exemption on the
remaining full range of diverse information which I have requested.

Once I have your response, which I hope arrives this week, I will
consider whether to request an internal review or not

 

You requested an internal review of your request for information on 6
December 2012. This is a response to that request. I apologise for the
delay.

 

1.         Please provide all information you have which is connected to
the departure of Mr Coleman. This will relate to meetings, hearings,
discussions, reports, and may be stored in the form of recorded minutes,
verbatim and non-verbatim notes, emails, letters, memos, aide memoirs,
documents, whether electronically or manually stored.

            The Employment and Appointments Committee on 3 October 2012
considered the application of Mr Ian Coleman for early voluntary
retirement with effect from 5 October 2012. Here is a link to that report
and the recorded minute of that meeting,
[6]http://democracy.wirral.gov.uk/ieListDoc....
The Committee agreed the early voluntary retirement of Mr Coleman and the
release of his pension on the grounds of the efficiency of the service.

 

            I consider that the other information you have requested,
apart from the report and the minute provided above,  amounts to personal
data. This means data which relates to a living individual who can be
identified from that data. (Section 1  (1) of the Data Protection Act
1998).I  therefore consider that your request for information is exempt
information under Section 40 (2) of the Freedom of Information Act. 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 , ie Mr Ian Coleman.  I do not
consider that such processing would be necessary for the purposes of
legitimate interests pursued by yourself as a third party ,being a member
of the public. I have had regard to the decision of the First Tier
Tribunal in T.W. Gibson and the Information Commissioner and Craven
District Council (22 February 2011,EA/2010/0095)This decision confirms
that  the legitimate interest of a member of the public outweighs the
prejudice to the rights, freedoms or legitimate interests of the employee
concerned only to the extent that the information concerns the use of
public funds. I have considered whether there is a legitimate public
interest in disclosure and balanced this against the rights of Ian
Coleman. I consider that disclosure of the information requested would
cause an unwarranted interference with Mr Coleman’s rights, which
outweighs any  legitimate interests pursued by yourself as a third party I
consider disclosure of the requested information   would cause him
unjustified harm or distress

 

.This is an absolute exemption and not subject to the public interest
test. I am also not prepared to confirm or deny whether the Council holds
the requested information.

 

2.         Please confirm and provide details of the existence of any
payments made to Mr Coleman in relation to his departure.

            The cost to the Council of the early release of Mr Coleman’s
pension was £82,528.50. This is the actuarial cost to Merseyside pension
Fund spread over 5 years (£71,139.58 plus interest of £11.388.92).There
was no severance payment made to Mr Coleman.

 

3.         Please confirm details of the existence of any "compromise
agreement" or "confidentiality agreement" or “compromise contract” or
"confidentiality contract" agreed and signed by Mr Coleman in relation to
this departure

             I confirm the existence of a compromise agreement in respect
of Mr Coleman. However, having regard to the decision of the First Tier
Tribunal in the Craven case referred to above, I consider that the
requested information is personal data in its entirety. (Paragraph 32 of
the Craven decision).    I consider that all details of the compromise
agreement amount to personal data in respect of Mr Coleman, as data
subject. This means data which relates to a living individual who can be
identified from that data. (Section 1  (1) of the Data Protection Act
1998.I  therefore consider that your request for information is exempt
information under Section 40 (2) of the Freedom of Information Act. 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
consider disclosure of the requested information would have an unjustified
adverse effect on Mr Coleman, being a former employee of the Council, now
retired

 

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 , ie Mr Ian Coleman.  I do not
consider that such processing would be necessary for the purposes of
legitimate interests pursued by yourself as a third party ,being a member
of the public. I have had regard to the decision of the First Tier
Tribunal in T.W. Gibson and the Information Commissioner and Craven
District Council (22 February 2011,EA/2010/0095)This decision confirms
that  the legitimate interest of a member of the public outweighs the
prejudice to the rights, freedoms or legitimate interests of the employee
concerned only to the extent that the information concerns the use of
public funds. I have considered whether there is a legitimate public
interest in disclosure and balanced this against the rights of Ian
Coleman. I consider that disclosure of the information requested would
cause an unwarranted interference with Mr Coleman’s rights, which
outweighs any  legitimate interests pursued by yourself as a third party
This is an absolute exemption and not subject to the public interest test.
I am also not prepared to confirm or deny whether the Council holds the
requested information.

 

 

4.         In light of the [strangely] recent discovery by Wirral’s Chief
Internal Auditor David Garry that “compromise contracts” were NOT being
recorded but were being arranged behind closed doors, beyond any
councillor scrutiny and beyond view of the public:

[7]http://democracy.wirral.gov.uk/documents...

…please describe the exact process that was followed and supply the
documents, reports, aide memoirs, notes, etc. that were created and
recorded as part of the NEW process. Please take a deep breath before you
do this, and ponder your overriding duty to act not out of self-interest,
but fairly and impartially in the unbending service of us the public.

            There was no severance payment made to Mr Coleman and there
was no requirement to refer the Compromise agreement to the Council’s
Employment and Appointments Sub-Committee (Compromise Contracts).The
decision to agree Mr Coleman’s application for early voluntary retirement
had been agreed as indicated by the Employment and Appointments Committee
on 3 October 2012. I also consider the tone of this aspect of your request
to be of a hectoring nature.

 

5.         Please provide the names and addresses of all organisations
/bodies involved in providing legal advice to Mr Coleman. Please also
provide details of meetings which occurred including times, dates and
matters discussed

            I consider that your request for information is personal data,
relating to the data subject, Mr Coleman. I consider that the information
requested is exempt information under Section 40 (2) of the Freedom of
Information Act. 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 consider disclosure of the requested
information would have an unjustified adverse effect on Mr Coleman.

 

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 , ie Mr Ian Coleman.  I do not
consider that such processing would be necessary for the purposes of
legitimate interests pursued by yourself as a third party ,being a member
of the public. I have had regard to the decision of the First Tier
Tribunal in T.W. Gibson and the Information Commissioner and Craven
District Council (22 February 2011, EA/2010/0095).  This decision confirms
that the legitimate interest of a member of the public outweighs the
prejudice to the rights, freedoms or legitimate interests of the employee
concerned only to the extent that the information concerns the use of
public funds. I have considered whether there is a legitimate public
interest in disclosure and balanced this against the rights of Ian
Coleman. I consider that disclosure of the information requested would
cause an unwarranted interference with Mr Coleman’s rights, which
outweighs any  legitimate interests pursued by yourself as a third party
This is an absolute exemption and not subject to the public interest test.
I am also not prepared to confirm or deny whether the Council holds the
requested information.

 

 

6.         Please confirm the details of any disciplinary charges either
planned or levelled against Mr Coleman in relation to any failures /
malpractice / abuse which may or may not have brought about his departure
from the Council.  If Mr Coleman was provided with a "clean bill of
health" regarding his time served at the council, please provide a copy
of this /these document(s).

           No disciplinary charges have been leveled against Mr Coleman.

 

7.         Further to the publicised £82,000 figure, please include the
total amounts of any additional severance payments, the existence of
which may not have been referred to within the publicity material
released by Wirral Council.
No severance payment was made by the Council to Mr Coleman.

 

I do not consider the reliance on the exemption contained in section 22 of
the Freedom of Information Act 2000, in the Council’s response to you on 6
December 2012 to have been correctly applied and the Council is not
seeking to rely on that exemption in this internal review.  I am therefore
refusing your request for information,( apart from information relating to
the use of public funds), under Section 17 (1) of Freedom of Information
Act 2000, relying on the exemption contained in Section  40 (2)  of the
Act.

 

If you are dissatisfied with this response to your request for
information, you have the right to complain to the Information
Commissioner. The address is the Information Commissioner’s Office,

Wycliffe House,

Water Lane,

Wilmslow,

Cheshire SK9 5AF

[8]www.ico.gov.uk

 

Tel -0303 123 113

 

Sent on behalf of Rosemary Lyon,

Legal and Member Services,

Transformation and Resources

 

 

show quoted sections

References

Visible links
1. http://www.wirralglobe.co.uk/news/996522...
2. http://www.whatdotheyknow.com/request/ag...
3. http://www.whatdotheyknow.com/request/da...
4. http://democracy.wirral.gov.uk/mgConvert...
5. http://democracy.wirral.gov.uk/documents...
6. http://democracy.wirral.gov.uk/ieListDoc...
7. http://democracy.wirral.gov.uk/documents...
8. http://www.ico.gov.uk/
http://www.ico.gov.uk/

Paul Cardin left an annotation ()

Appealed to ICO.

Corrin, Jane, Wirral Metropolitan Borough Council

2 Attachments

 

Dear Mr Cardin,

I refer to the response given on 7 June 2013 by the Council to your
request for an internal review. Following your complaint to the
Information Commissioner’s Office, the Council has decided to change its
response to your information request and seeks to rely on an additional
exemption, namely that contained in section 42 of the Freedom of
information Act 2000. This amended response has been copied to the ICO.
Your original request for information was made on 5 October 2012. You
asked for additional information on 6 October 2012.The Council responded
to that request on 2 November 2012, providing a link to a report
considered by the Council’s Employment and Appointments Committee dated 3
October 2012. On 5 November 2012, the Council also sought to rely on the
exemption contained in Section 22 of the Freedom of Information Act
2000.You sought clarification of the Council’s response on 5 November 2012
and requested an internal review on 6 December 2012.  Your request for
information is set out below, together with the Council’s response. The
amended response is contained in 1 below.

 

1.         Please provide all information you have which is connected to
the departure of Mr. Coleman. This will relate to meetings, hearings,
discussions, reports, and may be stored in the form of recorded minutes,
verbatim and non-verbatim notes, emails, letters, memos, aide memoirs,
documents, whether electronically or manually stored.

            The Employment and Appointments Committee on 3 October 2012
considered the application of Mr Ian Coleman for early voluntary
retirement with effect from 5 October 2012. I enclose a copy of the report
considered by the Committee and the Minutes of that meeting. The Committee
agreed the early voluntary retirement of Mr Coleman and the release of his
pension on the grounds of the efficiency of the service.

 

            I consider that the other information you have requested,
apart from the report and the minute provided above, amounts to personal
data. This means data which relates to a living individual who can be
identified from that data. (Section 1 (1) of the Data Protection Act
1998).I therefore considers that your request for information is exempt
information under Section 40 (2) of the Freedom of Information Act. 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, i.e. Mr Ian Coleman.  I do not
consider that such processing would be necessary for the purposes of
legitimate interests pursued by yourself as a third party, being a member
of the public. I have had regard to the decision of the First Tier
Tribunal in T.W. Gibson and the Information Commissioner and Craven
District Council (22 February 2011,EA/2010/0095)This decision confirms
that  the legitimate interest of a member of the public outweighs the
prejudice to the rights, freedoms or legitimate interests of the employee
concerned only to the extent that the information concerns the use of
public funds. I have considered whether there is a legitimate public
interest in disclosure and balanced this against the rights of Ian
Coleman. I consider that disclosure of the information requested would
cause an unwarranted interference with Mr Coleman’s rights, which
outweighs any  legitimate interests pursued by yourself as a third party I
consider disclosure of the requested information would cause him
unjustified harm or distress.

 

This is an absolute exemption and not subject to the public interest test.
I am also not prepared to confirm or deny whether the Council holds the
requested information.

 

I also consider that the exemption contained in Section 42 of the Freedom
of Information Act, 2000 in respect of legal professional privilege
applies to the requested information,  where that consists of
communications between the Council and its legal advisers. I consider that
such communications are protected by legal advice privilege, being made
confidentially between the Council as client and its lawyers for the
dominant purpose of seeking legal advice and being given such legal advice
or assistance. I have had regard to the latest guidance issued by the ICO
“The exemption for legal professional privilege Section 42 Version 1.2”

 

I consider that the public interest in maintaining the exemption outweighs
the public interest in disclosure. I refer to the case of Calland v.
Information Commissioner & The Financial Services Authority
(EA/2007/01386, 8 August 2008, where the Tribunal stated “What is quite
clear is that some clear, compelling and specific justification for
disclosure must be shown, so as to outweigh the obvious interest in
protecting communications between lawyer and client, which the client
suppose to be confidential”. I consider that disclosure of such legal
advice could materially prejudice the Council’s ability to protect and
defend its legal interests. Without comprehensive advice, the Council’s
decision –making process may be compromised because it would not be fully
informed. Public interest factors weighing in favour of disclosing
privileged information are that authorities should be accountable for the
quality of their decision –making and this may require transparency in the
decision-making process. I consider that the public interest in
maintaining the exemption outweighs the public interest in disclosure
having also had regard to their being a strong element of public interest
built into the privilege itself. I do not consider that there are strong
countervailing considerations that would outweigh the public interest in
maintaining the exemption, having regard to the report considered by the
Employment and Appointments Committee on 3 October 2012 was made available
for public scrutiny.

 

2.         Please confirm and provide details of the existence of any
payments made to Mr. Coleman in relation to his departure.

           

            The cost to the Council of the early release of Mr Coleman’s
pension was £82,528.50. This is the actuarial cost to Merseyside Pension
Fund spread over 5 years (£71,139.58 plus interest of £11.388.92).There
was no severance payment made to Mr Coleman.

 

3.         Please confirm details of the existence of any "compromise
agreement" or "confidentiality agreement" or “compromise contract” or
"confidentiality contract" agreed and signed by Mr Coleman in relation to
this departure

 

            I confirm the existence of a compromise agreement in respect
of Mr Coleman. However, having regard to the decision of the First Tier
Tribunal in the Craven case referred to above, I consider that the
requested information is personal data in its entirety. (Paragraph 32 of
the Craven decision). I consider that all details of the compromise
agreement amount to personal data in respect of Mr Coleman, as data
subject.This means data which relates to a living individual who can be
identified from that data. (Section 1 (1) of the Data Protection Act
1998.I  therefore consider that your request for information ,apart from
the information provided above, is exempt information under Section 40 (2)
of the Freedom of Information Act. 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 consider disclosure of the
requested information would have an unjustified adverse effect on Mr
Coleman, being a former employee of the Council, now retired

 

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, i.e. Mr Ian Coleman.  I do not
consider that such processing would be necessary for the purposes of
legitimate interests pursued by yourself as a third party, being a member
of the public. I have had regard to the decision of the First Tier
Tribunal in T.W. Gibson and the Information Commissioner and Craven
District Council (22 February 2011,EA/2010/0095)This decision confirms
that  the legitimate interest of a member of the public outweighs the
prejudice to the rights, freedoms or legitimate interests of the employee
concerned only to the extent that the information concerns the use of
public funds. I have considered whether there is a legitimate public
interest in disclosure and balanced this against the rights of Ian
Coleman. I consider that disclosure of the information requested would
cause an unwarranted interference with Mr Coleman’s rights, which
outweighs any  legitimate interests pursued by yourself as a third party
This is an absolute exemption and not subject to the public interest test.
I am also not prepared to confirm or deny whether the Council holds the
requested information.

 

 

4.         In light of the [strangely] recent discovery by Wirral’s Chief
Internal Auditor David Garry that “compromise contracts” were NOT being
recorded but were being arranged behind closed doors, beyond any
councillor scrutiny and beyond view of the public:

[1]http://democracy.wirral.gov.uk/documents...

please describe the exact process that was followed and supply the
documents, reports, aide memoirs, notes, etc. that were created and
recorded as part of the NEW process. Please take a deep breath before you
do this, and ponder your overriding duty to act not out of self-interest,
but fairly and impartially in the unbending service of us the public.

 

            There was no severance payment made to Mr Coleman and there
was no requirement to refer the Compromise Agreement to the Council’s
Employment and Appointments Sub-Committee (Compromise Contracts).The
decision to agree Mr Coleman’s application for early voluntary retirement
had been agreed as indicated by the Employment and Appointments Committee
on 3 October 2012. I also consider the tone of this aspect of your request
to be of a hectoring nature.

 

5.         Please provide the names and addresses of all organisations
/bodies involved in providing legal advice to Mr Coleman. Please also
provide details of meetings which occurred including times, dates and
matters discussed

                       

I consider that your request for information is personal data, relating to
the data subject, Mr Coleman. I consider that the information requested is
exempt information under Section 40 (2) of the Freedom of Information Act.
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 consider disclosure of the requested information would have an
unjustified adverse effect on Mr Coleman.

 

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, i.e. Mr Ian Coleman.  I do not
consider that such processing would be necessary for the purposes of
legitimate interests pursued by yourself as a third party, being a member
of the public. I have had regard to the decision of the First Tier
Tribunal in T.W. Gibson and the Information Commissioner and Craven
District Council (22 February 2011, EA/2010/0095).  This decision confirms
that the legitimate interest of a member of the public outweighs the
prejudice to the rights, freedoms or legitimate interests of the employee
concerned only to the extent that the information concerns the use of
public funds. I have considered whether there is a legitimate public
interest in disclosure and balanced this against the rights of Ian
Coleman. I consider that disclosure of the information requested would
cause an unwarranted interference with Mr Coleman’s rights, which
outweighs any  legitimate interests pursued by yourself as a third party
This is an absolute exemption and not subject to the public interest test.
I am also not prepared to confirm or deny whether the Council holds the
requested information.

 

 

6.         Please confirm the details of any disciplinary charges either
planned or levelled against Mr Coleman in relation to any failures/
malpractice / abuse which may or may not have brought about his departure
from the Council.

If Mr Coleman was provided with a "clean bill of health" regarding his
time served at the council, please provide a copy of this /these
document(s).

 

           No disciplinary proceedings were leveled against Mr Coleman

 

7.         Further to the publicised £82,000 figure, please include the
total amounts of any additional severance payments, the existence of
which may not have been referred to within the publicity material
released by Wirral Council.

No severance payment was made by the Council to Mr Coleman.

 

I do not consider the reliance on the exemption contained in section 22 of
the Freedom of Information Act 2000, in the Council’s response to you on 6
December 2012 to have been correctly applied and the Council is not
seeking to rely on that exemption in this amended response.I am therefore
refusing your request for information,( apart from information relating to
the use of public funds), under Section 17 (1) of Freedom of Information
Act 2000, relying on the exemptions contained in Section  40 (2)  and
Section 42 of the Freedom of Information Act 2000 .

 

I consider that you also have the right to complain further to the
Information Commissioner, (as the Council is seeking to rely on a new
exemption) whose address is the Information Commissioner’s Office,

Wycliffe House,

Water Lane,

Wilmslow,

Cheshire SK9 5AF

[2]www.ico.gov.uk

 

Tel -0303 123 113

 

Sent on behalf of

Surjit Tour

Head of Legal and Member Services and Monitoring Officer

Department of Transformation and Resources

Wirral Borough Council

 

Email: [3][email address]

 

 

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