Total Annual Figures for Compromise Agreements, etc.

Paul Cardin made this Freedom of Information request to Isle of Wight 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 Isle of Wight Council,

Please supply Annual 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 provide the figures in the following format e.g. 2006 - 2, 2007 - 4; 2009 - 0;

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

Bartley, Gill, Isle of Wight Council

1 Attachment

Dear Mr Cardin

Please find attached letter regarding your recent FOI request.

Best regards.

Gill

Departmental Information Guardian

Gill Bartley | PA to Claire Shand - Head of Human Resources | Corporate
Services

Isle of Wight Council | County Hall | Newport | Isle of Wight | PO30 1UD

Tel: (01983) 823099 ext 5012 | Fax: (01983) 823122

Email: [1][email address] | Web: [2]www.iwight.com

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Bartley, Gill, Isle of Wight Council

1 Attachment

Dear Mr Cardin

Please find attached response to your recent FOI request.

Best regards.

Gill

Departmental Information Guardian

Gill Bartley | PA to Claire Shand - Head of Human Resources | Corporate
Services

Isle of Wight Council | County Hall | Newport | Isle of Wight | PO30 1UD

Tel: (01983) 823099 ext 5012 | Fax: (01983) 823122

Email: [1][email address] | Web: [2]www.iwight.com

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Dear Gill,

Hi and many thanks for your response.

I'm afraid that your response is a unique one and I believe out of step with councils on the mainland.

I do not believe that revealing Annual total figures risks compromising the personal details of those involved and would, neither do the 90 councils who have responded quickly and in full to the same question.

In the light of this advice, I'd like to request that you reconsider your response.

My purposes are purely for research, and I would not want to resort to an internal review too quickly without giving you the opportunity to reconsider,

many thanks in advance,

Yours sincerely,

Paul Cardin

Bartley, Gill, Isle of Wight Council

Dear Mr Cardin

Thank you for your email below.

In accordance with Council policy we will consider any notification of dissatisfaction as an internal appeal and have raised an RFI appeal from your request. The new reference number for this is iw11/1/34940 and a further reply will be provided to you within 20 working days.

Best regards.

Gill

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Dear Bartley, Gill,

Thanks for your response. I've no idea what an 'RFI appeal' is. Is that the same as an internal review? If so, then that's your call, although I was hoping you'd reconsider your position

Thanks again,

Yours sincerely,

Paul Cardin

Bartley, Gill, Isle of Wight Council

I am currently out of the office and will be back in tomorrow morning. Please contact me on 01983 823099 x 5012 during office hours.

Many thanks.

Bartley, Gill, Isle of Wight Council

Dear Mr Cardin

Sorry, an RFI appeal is Request For Information appeal, which will be looked at by the Corporate Information Unit (internal) who will also send a response to you.

Best regards.

Gill

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Dear Gill,

Thanks for your response. Can you let me know whether the FOI Act permits you to do this and in effect add another 20 days to the process?

Given that now over 100 councils have responded to this request quickly, positively and in full, this approach seems not to work in the spirit of the act,

Yours sincerely,

Paul Cardin

Bartley, Gill, Isle of Wight Council

Dear Mr Cardin

Whilst the Freedom of Information Act itself does not stipulate that internal reviews should be carried out, the Section 45 Code of Practice issued by the Lord Chancellor does require public bodies to have an internal review procedure for dealing with FOI requests. Further details can be found on the Information Commissioners Office website at www.ico.gov.uk.

In order to comply with this code of practice, the council's Access to Information Policy, which can be found on our website at www.iwight.com, details the procedure to be used by the council.

We believe that it is reasonable to provide a full reply to an internal review/appeal within 20 working days, the same timescale stipulated by the Act for dealing with requests.

On completion of this review, if you remain dissatisfied with the way in which the council has dealt with the matter, you have the right of further appeal to the Information Commissioners Office.

I trust this clarifies the situation for you.

Best regards.

Gill

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Dear Gill,

Thanks, but this is the first time you've acknowledged that we are now in the process of an Internal Review. You called it something else. I am an ignorant member of the public who is not in on your vernacular or your clipped jargon.

In other words, I wasn't made to feel welcome or aware. I look forward to the completion of your Internal Review,

many thanks in advance,

Yours sincerely,

Paul Cardin

Bartley, Gill, Isle of Wight Council

I am currently out of the office and will be back in tomorrow morning. Please contact me on 01983 823099 x 5012 during office hours.

Many thanks.

Dear Isle of Wight Council,

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

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

Thanks for initiating an internal review on my behalf.

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

Mr. Figg left an annotation ()

ICO public guidance
Personal Information (AG1)
http://www.ico.gov.uk/upload/documents/l...

Freedom of information requires the release of publicly held non-exempt information, and
wrongly withholding information will breach the FOIA. However, wrongly
releasing an individual’s personal information will breach the DPA. It is therefore
very important to understand and apply this exemption correctly to ensure
compliance with both regimes.

The exemption is an absolute exemption (except in some limited
circumstances). This means that if the information falls within the exemption,
there is no need to consider an additional public interest test.

However, information is not automatically exempt just because it is personal
data. You will need to consider the details of the exemption. Any refusal notice
will need to explain exactly which subsection applies, and why.

Section 40(1) sets out the exemption if the applicant is requesting their own
personal data. These requests should be considered instead as subject access
requests under section 7 of the DPA.

Section 40(2) sets out the exemption for someone else’s personal data (third
party data) if one of the conditions in section 40(3) or 40(4) is met. These
conditions require you to refer back to the DPA. The most common condition for
the exemption to apply is where disclosure would breach one of the data
protection principles contained in Schedule 1 of the DPA. You will therefore
generally need to start with two broad questions:

• Is the information “personal data”?
• If so, will disclosure breach one of the data protection principles?

Duty to confirm or deny

You should also remember your duty to confirm or deny whether you hold the
information. Even if the information itself is exempt from disclosure, you may
still need to confirm that you hold it unless the confirmation itself would be
exempt under section 40(5). Equally, if you do not hold the information, you
must say this unless the denial itself would be exempt.

Niemiec, Vanda, Isle of Wight Council

1 Attachment

Dear Mr Cardin

Please find attached a reply to your above reference Freedom of
Information Act appeal, relating to your request for numbers of compromise
agreements.

Yours sincerely

Vanda Niemiec (Miss) | Information Manager | Legal Services | Isle of
Wight Council | County Hall | Newport | Isle of Wight | PO30 1UD

Tel: (01983) 823803 | Internal: 3803

Email: [1][email address] | Web: [2]www.iwight.com

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Dear Niemiec, Vanda,

Thanks for your response and for (I think) carring out an internal review. The result of the internal review gave me a 'costs exemption' and an admission that you 'think' there were 4 compromise agreements in 2010.

Here is a quote from your first response:

"I would point out that the Freedom of Information Act and the Data Protection Act both provide rights of access to recorded information."

I accept this, but you appear not to. You went on to state that an agreement was made not to reveal the existence of compromise agreements - in order to protect both parties (the employee and the employer).

The problem with this is it DOES NOT SERVE the public interest. I have now received 219 full and detailed responses from your LGA council colleagues.

I am of the opinion that the public interest in releasing the information outweighs the public interest in not releasing it. I would go further and say that the public interest in releasing the information outweighs any risk of identifying individuals. I would also say that my statutory rights outweigh any clauses you have inserted into a compromise agreement, which (as well as protecting the two parties) could have been aimed at concealing sensitive information and thereby placing obstacles in the way of public access.

Have I now exhausted your internal appeals procedure? If not, and you are not willing to reconsider this request, please gather all the information I've submitted and take it to the next stage.

Please also address the second part of my original query i.e. Does the council use "gagging clauses", aimed at making signatories forgo their future FOI / DPA access rights to data and personal information held by the council?

Many thanks in advance,

Yours sincerely,

Paul Cardin

Niemiec, Vanda, Isle of Wight Council

Dear Mr Cardin

Thank you for your email.

To clarify my reply - we are unable to identify, locate and retrieve relevant information within the appropriate fees limit, which equates to 18 hours of officer time. As explained, we do not hold a central record of such agreements, and a manual search would have to be undertaken of all leaver's files, to determine whether a compromise agreement was in place. This limit does not require us to consider the public interest test.

I provided you with a figure of 4 agreements for last year, which was provided by a colleague in our Human Resources department, from her recollection.

With respect to your request regarding '"gagging clauses"', aimed at making signatories forgo their future FOI / DPA access rights to data and personal information held by the council', I can confirm that the council would not endorse such clauses. The council would not prohibit any individual from exercising their legal rights.

I confirm that you have now exhausted the council's internal appeals process. If you remain dissatisfied, you have the right of further appeal to the Information Commissioners Office, at www.ico.gov.uk.

Yours sincerely

Vanda Niemiec (Miss) | Information Manager | Legal Services | Isle of Wight Council | County Hall | Newport | Isle of Wight | PO30 1UD

Tel: (01983) 823803 | Internal: 3803

Email: [email address] | Web: www.iwight.com

As part of our commitment to Eco Island please don't print unless necessary

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Paul Cardin left an annotation ()

Isle of Wight Council went to internal review, before deciding against supplying 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