Total Annual Figures for Compromise Agreements, etc.

Paul Cardin made this Freedom of Information request to Herefordshire Council

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

The request was partially successful.

Dear Herefordshire Council,

Please supply totals for the following:

As far as records go back, the annual figures for the total number of current employees / ex-employees of the Council who have signed compromise agreements directly related to the resolving of dispute(s) / grievance(s) / internal and external investigation(s) / whistleblowing incident(s).

In addition to this, annual figures for the number of current employees / ex-employees who have agreed, following the matter being raised and made conditional as part of a compromise agreement drawn up by the body acting as the Council's legal team, to sign and forgo their right to approach the council in the future with Freedom of Information and/or DPA Subject Access requests under the relevant Acts.

Please note that I do not seek or require any personal information such as names and addresses – only the total figures for each subject area.

Yours faithfully,

Paul Cardin

Freedom Of Information (FOI), Herefordshire Council

1 Attachment

Please see attached letter relating to your foi request.

<<001799 Ack Letter 5-01-11.doc>>

Nicola Clements
Legal Assistant
For Deputy Director (Law & Governance)
County of Herefordshire District Council

Tel: 01432 260472
Fax: 01432 260206
e-mail : [email address]

This e-mail and any files transmitted with it are confidential and
intended solely for the use of the addressee. This communication may
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Helpdesk at the Herefordshire Council, telephone 01432 260160.

Freedom Of Information (FOI), Herefordshire Council

1 Attachment

<<001799 Lb Response 02-02-11.doc>>

Sam Smith

Legal Executive

For Assistant Director (Law & Governance)

Herefordshire Council

Legal Services

Blackfriars, Blackfriars Street

Hereford HR4 9ZR

Tel: 01432 260257

Fax: 01432 260206

e-mail: [email address]

This e-mail and any files transmitted with it are confidential and
intended solely for the use of the addressee. This communication may
contain material protected by law from being passed on. If you are not the
intended recipient and have received this e-mail in error, you are advised
that any use, dissemination, forwarding, printing or copying of this
e-mail is strictly prohibited. If an attachment is included we cannot
accept any liability for any loss or damage sustained as a result of
software viruses. It is your responsibility to carry out such virus
checking as is necessary before opening any attachment.

If you have received this e-mail in error, please notify the IT Service
Helpdesk at the Herefordshire Council, telephone 01432 260160

Dear Freedom Of Information (FOI),

Thanks very much for your response. I appreciate your position
however this query is identical to one which has been sent to ALL
English councils. So far, I have had 153 (one hundred and fifty
three) full and detailed positive responses. These councils did not
have any difficulty in responding to what they appeared to regard
as a reasonable request.

I am currently involved in research in this area and in order to
assist and to make your task more manageable, can I make the
following reductions in scope?

Please can you exclude compromise agreements drawn up in the
following circumstances:

1. Purely redundancy situations
2. Purely PILON (payment in lieu of notice) situations
3. Equal pay claims
4. TUPE situations
5. COT3 agreements (where tribunal proceedings may or may not have
been initiated)

Also, to assist you further, I will narrow the time period down to
between the years 2005 to 2010 i.e. the last six years.

Given that a total of 153 councils have not found any difficulty, I
imagine that they may be taking a different approach to searching
for the information.

Can I suggest that you query your Accounts Department? I ask this
because when employees leave in the circumstances I am describing,
they are offered a financial incentive to end their working
contracts. Your Accounts department is required to keep a detailed
electronic record of all such payments. As they should be keeping
an adequate data storage / retrieval system, it will not be too
arduous a task for them to provide Annual total figures for
compromise agreements drawn up in these circumstances.

You could also put in a call to your Legal Department who may keep
a similar searchable database.

I hope the above information assists you. I don't believe that the
possession of an inadequate data storage / retrieval system
warrants the use of an exclusion under the FOI Act and look forward
to your response,

Yours sincerely,

Paul Cardin

Freedom Of Information (FOI), Herefordshire Council

1 Attachment

Please see attached letter.

<<001799 Lc Further Response 14-02-11.doc>>

Sam Smith

Legal Executive

For Assistant Director (Law & Governance)

Herefordshire Council

Legal Services

Blackfriars, Blackfriars Street

Hereford HR4 9ZR

Tel: 01432 260257

Fax: 01432 260206

e-mail: [email address]

This e-mail and any files transmitted with it are confidential and
intended solely for the use of the addressee. This communication may
contain material protected by law from being passed on. If you are not the
intended recipient and have received this e-mail in error, you are advised
that any use, dissemination, forwarding, printing or copying of this
e-mail is strictly prohibited. If an attachment is included we cannot
accept any liability for any loss or damage sustained as a result of
software viruses. It is your responsibility to carry out such virus
checking as is necessary before opening any attachment.

If you have received this e-mail in error, please notify the IT Service
Helpdesk at the Herefordshire Council, telephone 01432 260160

Dear Freedom Of Information (FOI),

Thanks for your response, and for the reference to the case that you quoted. I will go away and research this and other areas.

Please could you answer the second question within the initial request i.e. As part of compromise agreements, does the council insert "gagging clauses" which restrict the signatory's statutoty rights to approach the council in the future with FOI / DPA requests?

Many thanks and once I have your answer to this, and my further research is complete, I will consider whether to return and ask for an internal review,

Yours sincerely,

Paul Cardin

Freedom Of Information (FOI), Herefordshire Council

Dear Mr Cardin

Further to your e-mail of 15 February 2011, with regard to the latter part
of your request:

In addition to this, annual figures for the number of current employees /
ex-employees who have agreed, following the matter being raised and made
conditional as part of a compromise agreement drawn up by the body acting
as the Council's legal team, to sign and forgo their right to approach the
council in the future with Freedom of Information and / or DPA Subject
Access requests under the relevant Acts.

I am informed that it is not possible to confirm terms of individual
compromise agreements without viewing each agreement. This is not
possible for reasons referred to in previous correspondence. However, I
am advised that it would not be usual to include such a clause in
compromise agreements drawn up by the Council's Legal services section and
there is no recollection of the inclusion of such a clause as far as we
are able to enquire

If you have any queries or concerns then please contact me, contact
details are given below.

If you are dissatisfied with the handling of your request or would like
the response provided reviewed please contact Mr Geoff Hardy, Special
Projects Lawyer, tel: 01432 260516, e-mail:
[1][email address].

Further information is also available from the Information Commissioner
at:

Information Commissioner's Office

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

Telephone: 01625 545 745 [2]www.ico.gov.uk

Yours sincerely

S Smith

Sam Smith

Legal Executive

For Assistant Director (Law & Governance)

Herefordshire Council

Legal Services

Blackfriars, Blackfriars Street

Hereford HR4 9ZR

Tel: 01432 260257

Fax: 01432 260206

e-mail: [email address]

This e-mail and any files transmitted with it are confidential and
intended solely for the use of the addressee. This communication may
contain material protected by law from being passed on. If you are not the
intended recipient and have received this e-mail in error, you are advised
that any use, dissemination, forwarding, printing or copying of this
e-mail is strictly prohibited. If an attachment is included we cannot
accept any liability for any loss or damage sustained as a result of
software viruses. It is your responsibility to carry out such virus
checking as is necessary before opening any attachment.

If you have received this e-mail in error, please notify the IT Service
Helpdesk at the Herefordshire Council, telephone 01432 260160

show quoted sections

Dear Herefordshire Council,

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

I am writing to request an internal review of Herefordshire Council's handling of my FOI request 'Total Annual Figures for Compromise Agreements, etc.'.

Thanks for your responses to date, however given the wider context in which, to date, 215 English councils have responded positively and in detail, I feel that the public interest in releasing the information outweighs the public interest in not releasing it, regardless of the inaccessibility of your own particular data.

The FOI Act has been in place for 11 years. Hundreds of your LGA colleagues appear to share my position regarding the public interest, are maintaining and upkeeping readily accessible systems and I'd be very grateful if you could have another look and reconsider.

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

Yours faithfully,

Paul Cardin

Hardy, Geoff, Herefordshire Council

Dear Mr Cardin,

Thank you for your email of 16th February requesting a review of our
decision relating to your request about compromise agreements. I will
arrange for the review to be undertaken by someone who was not involved in
the original decision. As you may be aware the Information Commissioner
recommends that such reviews are completed within 20 working days.

If you have any further representations to make, other than those
contained in your email, can you please forward these to us without delay
and they will be taken into account in the review process.

Thanking you,

Geoff Hardy
Special Projects Lawyer,
For Assistant Director
(Law and Governance)
Herefordshire Council
Blackfriars
Blackfriars Street
Hereford
HR4 9ZR

Courier Code H9
DX 135296 HEREFORD 3
Tel 01432 260516
Fax 01432 260206

This e-mail and any files that are transmitted with it are confidential
and intended solely for the use of the addressee. This communication may
contain material protected by law from being passed on. If you are not
the intended recipient and have received this e-mail in error, you are
advised that any use, dissemination, forwarding, printing, or copying of
this e-mail is strictly prohibited. If an attachment is included we
cannot accept any liability for any loss or damage sustained as a result
of software viruses. It is your responsibility to carry out such virus
checking as is necessary before opening any attachment. If you received
this e-mail in error, please notify the IT Service helpdesk at
Herefordshire Council on (01432) 260160.

Dear Hardy, Geoff,

Please can you confirm that this internal review will be taking into account ALL the points that I've made in ALL the emails?

Your reply seems to be hoping to restrict the matter, by only referring to the last email I sent, which of course would not be fair at all,

Yours sincerely,

Paul Cardin

Hardy, Geoff, Herefordshire Council

Dear Mr Cardin,

The reviewing officer is passed the file with all the correspondence in
it, so yes.

Thanks,

Geoff Hardy
Special Projects Lawyer,
For Assistant Director
(Law and Governance)
Herefordshire Council
Blackfriars
Blackfriars Street
Hereford
HR4 9ZR

Courier Code H9
DX 135296 HEREFORD 3
Tel 01432 260516
Fax 01432 260206

This e-mail and any files that are transmitted with it are confidential
and intended solely for the use of the addressee. This communication
may contain material protected by law from being passed on. If you are
not the intended recipient and have received this e-mail in error, you
are advised that any use, dissemination, forwarding, printing, or
copying of this e-mail is strictly prohibited. If an attachment is
included we cannot accept any liability for any loss or damage sustained
as a result of software viruses. It is your responsibility to carry out
such virus checking as is necessary before opening any attachment. If
you received this e-mail in error, please notify the IT Service helpdesk
at Herefordshire Council on (01432) 260160.

show quoted sections

Dear Hardy, Geoff,

Thanks for the clarification,

Yours sincerely,

Paul Cardin

Sawyer, Anthony, Herefordshire Council

Dear Mr. Cardin

I have completed my review regarding compromise agreements requested under
the Freedom of Information Act 2000, and I write to inform you of the
outcome.

Your original request was received by Herefordshire Council on 3^rd
January 2011 and was due to be answered within the statutory timescale by
31^st January 2011. The response was late in being sent to you by 2 days,
due to late responses from the departments contacted to provide
information to answer your request.

The original response to your request did not clearly state an answer to
the second part of your request, regarding "gagging clauses" which
restrict the signatory's statutory rights to approach the council in the
future with Freedom of Information / Data Protection Act requests. I note
that this was answered on 16^th February 2011.

I reiterate the apology for this on behalf of Herefordshire Council.

I have enquired across the council to check for the information that you
have asked for. There is no central log of compromise agreements held by
the council, including within our finance, legal and human resources
sections, and even for your curtailed request, to answer would involve a
manual checking of paper files of staff personnel files for staff who have
left the service of the authority. I therefore uphold the decision to
refuse your request as it exceeds the appropriate limit as defined in the
Freedom of Information and Data Protection (Appropriate Limit and Fees)
Regulations 2004, as the public interest in releasing the information is
outweighed by the amount of time that it would take to retrieve it.

I have found no evidence of any deliberate blocking of the release of this
information, indeed I confirm that your request has prompted the council
to record information on compromise agreements separately in future, as we
recognise that there is a the public interest in this area. Whilst we
cannot provide the information retrospectively, we will be able to going
forward.

If you are still dissatisfied with the handling of your request or if you
disagree with the outcome, you have the right to contact the Information
Commissioner for a review of your case at:

Information Commissioner's Office

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

Telephone: 01625 545 745 Web Site: [1]www.ico.gov.uk

Yours sincerely

Anthony Sawyer

Information and Records Management Team Leader

Herefordshire Council

Modern Records Unit

Merchant House

Burcott Road

Hereford

HR4 9LW

Tel: 01432 26 0112

Fax: 01432 26 0109

Any opinion expressed in this e-mail or any attached files are those of
the individual and not necessarily those of Herefordshire Council. This
e-mail and any attached files are confidential and intended solely for the
use of the addressee. This communication may contain material protected by
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References

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

Paul Cardin left an annotation ()

Herefordshire Council went to internal review, before deciding against supplying most of the information.

Please link here to read about the further aspects of this request:

www.easyvirtualassistance.co.uk/page4.html

...including councils who have attempted to prevent individuals from exercising their statutory FOI / DP querying rights.

There is a growing trend for the use of compromise agreements, not just in the area of disputes or whistleblowing, but also in less controversial areas of redundancy, severance or equal pay claims. Some councils have yet to answer this query - and to date, 65 working days have elapsed.

Paul Cardin left an annotation ()

Here’s a piece of legal opinion from Senior Counsel Hugh Tomlinson QC, which appears to make more likely the prospect of public sector employers opting for Freedom of Information and Data Protection “gagging clauses” within compromise agreements; and thereby aiming to remove persons’ statutory rights to make data and information requests.

It has been an effective reputation management tactic, and a way of concealing the historical malpractice engaged in by employers when targetting whistleblowers or getting rid of people who’ve lodged grievances. The ruse has been deployed in the past by two councils; Cheshire West & Chester, and Brent.

The ICO are powerless to prevent it as the HT opinion implies that contract law takes precedence over a person’s statutory rights – which it appears can be surrendered. The ICO could only act if the recipient of any “ban” were to breach it and make an FoI or DP request of the relevant data controller – which is unlikely to occur because there’s always a “club over the head” of the signatory to the compromise agreement i.e. the threat of any monetary pay off being clawed back through the courts.

http://tinyurl.com/bu9vynx