The conflicting legal advice re Turkish Baths equality dispute

The request was refused by Harrogate Borough Council.

Dear Harrogate Borough Council,
I am making this fresh Freedom of Information request in the wake of Harrogate Borough Council’s highly unsatisfactory response to my previous FOI request. But it was one which, in the end, elicited the acknowledgement I have been seeking for more than five years; that when the Council decided to axe men-only bathing sessions at the town’s Turkish Baths but continued to allow seven single-sex sessions a week for women, it was not only contravening the Equality Act 2010 but the Council’s own equalities policy.
I therefore believe we deserve a full explanation as to why it seemingly took the Council four years and seven months to realise this; and another eight months before it made a public acknowledgement of the fact; and even then, with the greatest possible reluctance.
It was only after I challenged the Council’s shamefully inadequate response to my FOI request of 13.2.17, where it had taken 19 working days to produce what was effectively a 28-word response, all of it incorrect, that the Council’s Head of Legal Services & Governance felt obliged to issue a “clarification” (i.e. a correction). It was in this statement that she acknowledged that the Council had indeed operated a discriminatory admissions policy at the Turkish Baths from December 2011 until September 2016.
In the light of this admission I believe the Council now has a duty to publish all legal advice it has received in relation to this matter so that the public, particularly male residents of the Borough of Harrogate who were denied a benefit they were fully entitled to for four years and eight months, can make an informed judgement as to whether senior officers could – and should – have reacted much earlier to a wealth of evidence which suggested the banning of the men-only bathing sessions was discriminatory and completely unjustified.
I am therefore asking the Council to place in the public domain the legal advice it received in the latter part of 2011 which allegedly argued that axing the men-only sessions would not be discriminatory. I believe the full transcript of this legal advice now needs to be made public, together with the name and job title of the person who provided it – and the date it was produced.
In addition, I am also calling for the legal advice produced on July 1, 2016 which led to the men-only bathing sessions being reinstated on September 7, 2016 to be published. I am fully aware that the Council’s Head of Legal & Governance has previously refused to publish this advice on the grounds it was “privileged” information and - "on balance" - would not be in the public interest. However, in the light of her acknowledgement that the Council breached equality legislation for a substantial period of time, I believe it is now very much in the public interest that this legal advice should be published in full – including the name of the person and/or legal firm who produced it.
Furthermore, since we now know that the Council was in breach of equality legislation from the start of January 2012, will the Council also explain what precise circumstances prompted the Head of Legal & Governance to instruct a barrister on June 27, 2016 (rather than at any other time over the previous four years and seven months)?
Also, could the Council clarify why it claimed in response to my 13.2.17 Freedom of Information request that no senior officer was aware of the Council potentially being in breach of equality legislation until July 1, 2016; and yet the barrister was briefed on June 27, 2016, which raises the question: how would an officer have been able to brief the barrister on a subject which , allegedly, they knew nothing about until four days later?
Yours sincerely
Peter Lilley

Rich Kemp, Harrogate Borough Council

Dear Mr Lilley

 

Thank you for your email which we received on 20/04/2017. We are treating
this as a request for information under the Freedom of Information Act
2000. This means that —

 

o if we need more information about what you want, we will contact you
again as soon as we can; the twenty working days in which to give you
the information will start once we know exactly what you want
o if we do not hold the information, we will, if we can, transfer your
request to an authority who does hold it, and tell you what we have
done (please contact us immediately if you do not want us to do this);
otherwise, we will let you know that we do not hold the information
o if we hold the information and there is no reason to withhold it, we
will send it to you as soon as we can.  If there is likely to be a
delay for any reason, we will let you know
o if we believe that there is a good reason why the information should
not be disclosed, we will let you know as much as we can about how we
reached our decision

 

We will respond to your request promptly, and in any event, within the 20
working day limit as set out in s10 of the Act.

 

Regards

 

Rich Kemp LLB (Hons)

(Debt & Information Law)

Legal & Governance

Harrogate Borough Council

PO Box 787

Harrogate

HG1 9RW

 

tel: 01423 500600 (ext - 58602)

email:  [1][email address]

[2]www.harrogate.gov.uk

 

 

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Rich Kemp, Harrogate Borough Council

Dear Mr Lilley

 

Thank you for your email requesting information under the Freedom of
Information Act 2000.

The Council’s response in relation to the 2016 advice remains the same as
our response dated 17 November 2016 to your request dated 20 October 2016.

The Council’s response in relation to the legal advice in 2011 is the
same. That legal advice is exempt from disclosure by virtue of section
42(1) of the Act.

It is important that Members and Officers of the Council are able to
obtain free and frank legal advice from lawyers , both internal Legal
Services and from external sources, without the anticipation that such
advice will be published or disclosed (even in legal proceedings). It is
well established by case law precedent that such advice is subject to
legal professional  privilege.

The legal privilege exemption is engaged in relation to both the 2011 and
2016 advice.

This exemption is subject to the public interest test and your assertion
that there is a public interest in this being disclosed is noted. However
in this instance the Council believes that the public interest in
maintaining the exemption outweighs any public interest in disclosure.

The 2016 advice has, as you know, been implemented and one men only
session per week has been restored.

The Council takes the view that safeguarding the openness in the
lawyer/client relationship which underpins the principle of legal
professional privilege outweighs the public interest you identify. The
requested legal advice will not therefore be disclosed.

 

If you are not satisfied with the way your request has been handled,
please contact -  

 

Freedom of Information Officer

Council Offices, Crescent Gardens, Harrogate, HG1 2SG  

 

or email [1][Harrogate Borough Council request email]

 

The Council has an internal appeal system.  If your complaint is about the
decision which has been made you will usually be entitled to have your
case reviewed by an officer from a department which has not been involved
in the decision previously.   

 

If, after their decision, you are still not satisfied, you may appeal to-
 

 

The Information Commissioner

Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF

Tel: 0303 123 1113

website: [2]https://ico.org.uk/

 

Regards

 

Rich Kemp LLB (Hons)

(Debt & Information Law)

Legal & Governance

Harrogate Borough Council

PO Box 787

Harrogate

HG1 9RW

 

tel: 01423 500600 (ext - 58602)

email:  [3][email address]

[4]www.harrogate.gov.uk

 

 

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Dear Mr Kemp,
I acknowledge your response on behalf of the Council’s Legal & Governance department headed by Ms Jennifer Norton.
I find your response completely unacceptable and am therefore requesting an Internal Review into both the way the request has been handled; and your department's refusal to provide the information requested.
It would seem quite clear from your response that your department never had any intention of properly answering the questions I posed; so it would have been helpful if you had said that straightaway rather than taking the full 20 working days the Council is allowed under the FOI Act before responding.
The FOI Act makes it quite clear that local authorities have a duty to be helpful in their response to FOI requests; yet, once again, Harrogate Borough Council gives the impression it somehow imagines itself to be excluded from this responsibility. The Council also a duty under the FOI Act to fully explain its reasons why information is not being provided.
It’s simply not good enough to say: “The Council believes that the public interest in maintaining the exemption outweighs any public interest in disclosure.”
On what grounds do you make that statement? Exactly why would it not be in the public interest to disclose the information that has been requested?
I believe the Council needs to provide a comprehensive explanation particularly in the light of having used the same excuse of “legal privilege” in response to a previous FOI request of mine.
Indeed, since that refusal the Council has now acknowledged (with the greatest reluctance) that it was indeed in breach of equalities legislation for 4.5 years. And let's be clear: this information would never have been provided voluntarily. It was only acknowledged after your department provided incorrect information to another FOI request of mine. When I challenged your department's response, Ms Norton felt compelled to “clarify” the answers that had been given; in other words provide correct information.
In the light of such conduct, it seems reasonable to me to now insist that ALL information concerning the legal advice received by the Council in relation to the decision to axe men-only bathing sessions at Harrogate’s Turkish Baths is placed in the public domain.
I would also remind you that the 2011 legal advice is at the very heart of the Council’s defence as to why it continued operating a discriminatory admissions policy at the Turkish Baths for 4.5 years as, apparently, the advice suggests that axing men-only bathing sessions while continuing to offer seven women-only sessions a week would not be unlawful. But this is based entirely on the word of the Council’s Chief Executive and Ms Norton whereas I believe there would seem to be no reasonable excuse why that 2011 legal advice shouldn’t be published in full for all to see and make their own judgement.
With respect to the Internal Review, I understand that this will be undertaken by a senior Council official entirely unconnected with the whole issue relating to the Council’s discriminatory admissions policy at the Turkish Baths. I should be grateful however if you would confirm that the Review will not only look at the way my FOI request was handled and why it took 20 working days to produce an entirely unsatisfactory response; but also the questionable grounds on which the request was refused.
I would also hope that the commissioning and overseeing of the Review will be conducted by someone entirely independent of the Council’s Legal & Governance department. I’m sure you will agree it would be improper and unfair if Ms Norton were to oversee an Internal Review in respect of a complaint concerning the way her own department handled an FOI request. I look forward to receiving your confirmation of this.
Yours sincerely
Peter Lilley

Bernice Elgot, Harrogate Borough Council

Dear Mr Lilley,

 

I refer to your email of 24 May 2017 addressed to my colleague Mr Rich
Kemp.

 

You have requested an internal review of the Council’s decision not to
disclose legally privileged material to you – namely the legal advice
received in 2011 and in 2016 in connection with the decision to
discontinue men only bathing sessions at the Turkish Baths and the
decision to restore one session per week.

 

You state that you wish the internal review to be conducted without
involvement from any member of the Legal and Governance service. Whilst it
is possible to appoint a senior officer from within the Council who has
not been previously involved with this matter that officer is necessarily
advised by a member of Legal Services, usually me.

 

If this is unacceptable to you then I suggest that you refer the matter
straight to the Information Commissioner, explaining the circumstances
which have led you to decline one stage of the internal FOI procedure, and
asking for their advice / guidance.

 

If, on the other hand, you would prefer to exercise your right to have an
internal review do please let me know and I will make the necessary
arrangements.

 

Yours sincerely,

 

Bernice Elgot

Chief Solicitor

Legal and Governance

Harrogate Borough Council

PO Box 787

Harrogate

HG1 9RW

01423 500600 extension 58248

[1][email address]

Please note that for deliveries by hand or personal appointments I am
based at Council Offices, Crescent Gardens, Harrogate HG1 2SG.

 

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Dear Ms Elgot
I acknowledge your response of June 1, 2017.
I would like to exercise my right to seek an Internal Review into the way my FOI request was handled; and an explanation as to the precise grounds on why the request was refused.
Yours sincerely,
Peter Lilley

Bernice Elgot, Harrogate Borough Council

Thank you Mr Lilley . I will identify a suitable senior officer to look at this as soon as possible. I intend to ask the Head of Parks and Environmental Services if he is available.

Yours,

Bernice Elgot
Chief Solicitor
Legal and Governance
Harrogate Borough Council
PO Box 787
Harrogate
HG1 9RW
01423 500600 extension 58248
[email address]
Please note that for deliveries by hand or personal appointments I am based at Council Offices, Crescent Gardens, Harrogate HG1 2SG.

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Peter Lilley left an annotation ()

I thought it was important to publicly express my complete dissatisfaction with Harrogate Borough Council's Internal Review process in respect of this Freedom of Information request. As you can see, I was told by the Council's Chief Solicitor that she would be asking the Council's Head of Parks to undertake the review. It appears he was unavailable. Then, without making any attempt to inform me, the Chief Solicitor "reviewed" my FOI request with the help of the Council's Director of Corporate Affairs, who is ultimately responsible for the legal & governance department. I thought Internal Reviews were supposed to be undertaken by senior council officers completely unconnected with the matter being discussed; and yet here we have a legal officer advising on an issue she was involved in dealing with. The Director of Corporate Affairs said she was interested in bringing this and related matters to a mutually satisfactory conclusion, and offered to meet with me to discuss in general terms the 2011 and 2016 legal advice relating to the admissions policy at Harrogate's Turkish Baths. But she still insisted that the legal advice was privileged and confidential and would not be placed in the public domain. I continue to dispute the argument that the legal advice is confidential. It relates to a decision which denied the male residents of the Borough of Harrogate to a benefit they were fully entitled to for more than 4.5 years. Surely we have a right to see the legal advice which led to that flawed decision being made; and the advice which led to the original decision finally being overturned?