Total Annual Figures for Compromise Agreements, etc.

Paul Cardin made this Freedom of Information request to Lewisham Borough 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 Lewisham Borough 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 (including teaching staff) 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 (including teaching staff) 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; 2008 - 0; 2010 - 6; etc.

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

Foi, Lewisham Borough Council

Dear Mr Cardin

Re: Freedom of Information Act 2000
Reference No: 132090

Thank you for your recent request.

Your request is being considered and you will receive a response within the statutory timescale of 20 working days, subject to the application of any exemptions. Where consideration is being given to exemptions the 20 working day timescale may be extended to a period considered reasonable depending on the nature and circumstances of your request. In such cases you will be notified and, where possible, a revised time-scale will be indicated. In all cases we shall attempt to deal with your request at the earliest opportunity.

There may be a fee payable for the retrieval, collation and provision of the information requested where the request exceeds the statutory limit or where disbursements exceed £10. In such cases you will be informed in writing and your request will be suspended until we receive payment from you or your request is modified and/or reduced.

Your request may require either full or partial transfer to another public authority. You will be informed if your request is transferred.
If we are unable to provide you with the information requested we will notify you of this together with the reason(s) why and details of how you may appeal (if appropriate).

Please note that the directorate team may contact you for further information where we believe that the request is not significantly clear for us to respond fully.

Kind Regards

Kevin Knight
Corporate Information Governance Team
0208 314 9928

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Richardson, Ian, Lewisham Borough Council

1 Attachment

Dear Paul
Cardin

Re: Freedom of Information Act 2000

Reference No : 132090

Thank you for your recent request. We are pleased to provide the
following information.

INFORMATION

Your request

"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 (including teaching staff) 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 (including teaching staff) 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."

Our reply

We are please to provide the following information for the last two years
2009-2010.

However, to provide that information for as far as we hold records would
involve considerable staff time. Therefore for that portion of your
request we apply Section 12(1) of the Freedom of Information Act 2000,
`Exemption where cost of compliance exceeds appropriate limit', to your
request. See below for details of this exemption.

The total number of employees or ex-employees who have signed compromise
agreements directly relating to resolving disputes, grievances, internal
and external investigations and whistle-blowing incidents between
2009-2010 is 81.

Of those 81 compromise agreements, only one specifically settled a
potential Subject Access Request claim. There were no cases settled
specifically for whistleblowing or Freedom of Information Requests.

None of the compromise agreements prevent employees (or ex-employees) from
pursuing Freedom of Information Requests or Subject Access Requests. If
they specifically compromise such claims or prospective claims, then if
they decide to instigate or continue with such claims, then they would be
in breach of contract and therefore liable to re-pay the settlement sum in
full.

For any compromise agreements to be effective , the employee or
ex-employee need to receive independent legal advice on the ramifications
of compromising any claims or prospective claims.

Exemption 12

Section 12 states:
(1) Section 1(1) does not oblige a public authority to comply with a
request for information if the authority estimates that the cost of
complying with the request would exceed the appropriate limit.
(2) Subsection (1) does not exempt the public authority from its
obligation to comply with paragraph (a) of section 1(1) unless the
estimated cost of complying with that paragraph alone would exceed the
appropriate limit.
(3) In subsections (1) and (2) "the appropriate limit" means such amount
as may be prescribed, and different amounts may be prescribed in relation
to different cases.
(4) The Secretary of State may by regulations provide that, in such
circumstances as may be prescribed, where two or more requests for
information are made to a public authority--
(a) by one person, or
(b) by different persons who appear to the public authority to be acting
in concert or in pursuance of a campaign,
the estimated cost of complying with any of the requests is to be taken to
be the estimated total cost of complying with all of them.
(5) The Secretary of State may by regulations make provision for the
purposes of this section as to the costs to be estimated and as to the
manner in which they are to be estimated.

This acts as a refusal notice. This information is not held in a readily
accessible format. It is estimated that the cost of locating, retrieving
and collating the information would cost in excess of £450 (the set
limit) and therefore exceeds the 'appropriate level' as stated in the
Freedom of Information (Fees and Appropriate Limit) Regulations 2004
([1]http://www.opsi.gov.uk/si/si2004/uksi_20...).

Costs for staff time i.e. staff retrieving and collating information are
set at £25 per hour and this task would require us to spend more than
18 hours of staff time on preparing the relevant information. You are able
to make a payment so that this task could be undertaken. You may also
modify your request to reduce the cost of this task. Please contact us if
you wish to proceed with one of these options.

We hope you will find this information helpful.

You have a right of appeal against this response. If you wish to appeal
you must do so in writing to the Corporate Information Manager at the
following address:
Corporate Information Governance Team
London Borough of Lewisham
Main Room, 2nd Floor
Town Hall, Catford Road
London, SE6 4RU
or

[email address]

Yours sincerely

Information Management Team

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1. http://www.opsi.gov.uk/si/si2004/uksi_20...

Dear Ian,

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 144 (one hundred and forty
four) full and detailed positive responses. These councils did not
have any difficulty in responding to a reasonable request.

I am currently involved in research in this area and in order to
make the task somewhat more manageable, can I make the following
changes?

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 144 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

Richardson, Ian, Lewisham Borough Council

Mr Cardin,

Thank you for you clarification. I'm forwarding your reply, via this email, to the appropriate addresses and teams who will respond to you in due course.

Ian Richardson

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Dear Richardson, Ian,

The delay has been noted,

Yours sincerely,

Paul Cardin

Dear Lewisham Borough Council,

Hi. I'm afraid 'in due course' has become a whole month. We are now into March 2011.

Please can you respond to provide some reassurance that you are in fact still looking into this FOI request,

Yours faithfully,

Paul Cardin

Foi, Lewisham Borough Council

Dear Mr Cardin

Please see response below which was emailed to you on the 1st February 2011.
We are sorry you did not receive the response when originally sent.

Kind Regards

Maria Kaminski
Corporate Information Governance Team
0208 314 9928

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Dear Foi,

I DID receive it, but if you go back and check it, there was no indication in the VISIBLE part of the message that you had responded to the query. The message I received told me you were taking action on it, not that it had been completed - this portion was HIDDEN.

Yours sincerely,

Paul Cardin

Dear Lewisham Borough Council,

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

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

Thanks for your response and for the time you have devoted to my query.

A large number of councils who returned a similar 'costs' exemption response were, like yourself, offered a subsequent reduction in the scope of the initial request. These councils went on to reconsider before proceeding with a full and detailed answer. Whereas you have insisted on a refusal.

Please take into account all the information I have submitted to date. To give you a picture of the wider context here, this request has been made to ALL English Councils above a certain size. To date, since 1st January 2011, 246 (two hundred and forty six) councils have responded positively and in full. We have had eleven years of FOI and I would have hoped that your council would have been working towards an effective data storage / retrieval system that works with the public interest in mind. You have not advised me of any plans to do so and appear to be happy to continue maintaining an unresponsive system.

It is not right that the public suffers and obstacles are placed in the way of their information because you are persevering with the upkeep of a cumbersome data storage system. Particularly in light of the positive response from hundreds of your LGA colleagues.1st January 2011, by 208 local authorities.

I don't think that your possession and maintenance of a cumbersome, inadequate method of storing and retrieving information is an adequate justification for refusal.

I also believe that the public interest in releasing this information outweighs the public interest in not releasing it - regardless of the costs involved. Costs which seem to be occasioned by the detrimental (to the public) effect of your own inadequate systems.

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

Dear Lewisham Borough Council,

Please could you respond and update me on the internal review that was requested over a month ago.

This is now well overdue,

Yours faithfully,

Paul Cardin

Dear Lewisham Borough Council,

I am still waiting for an acknowledgment to my request for an
internal review, sent well over a month ago.

I would appreciate some urgency now, given that the original
request was first made in early January, almost 70 working days
ago, which is three times the statutory period allowed,

Yours faithfully,

Paul Cardin

Foi, Lewisham Borough Council

Dear Mr Cardin

Thank you for your email. We apologise that you did not previously receive an acknowledgement.

Please be assured we are currently in the process of an internal review for your request, reference no. 132090 and will respond as soon as possible.

We apologise for any inconvenience caused.

Yours sincerely

Maria Kaminski
Corporate Information Governance Team
0208 314 9928

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Dear Foi,

It's now 20th May, but I've heard nothing. Please can you advise what is happening with the internal review?

I'd be most grateful to receive an update,

Yours sincerely,

Paul Cardin

Foi, Lewisham Borough Council

Dear Mr Cardin
Thank you for your email. We are sorry that you have not yet received a response to your request for a review. We hope to send you our response this week.

We apologise for any inconvenience caused.

Kind Regards

Maria Kaminski
Corporate Information Governance Team
0208 314 9928

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Dear Foi,

We're now into June and nothing heard. I will need to go to the Information Commissioner if nothing is heard from you this week,

Yours sincerely,

Paul Cardin

Foi, Lewisham Borough Council

1 Attachment

Dear Mr Cardin
Freedom of Information Act 2000 - Response to Appeal
Reference No. 132090
We have now considered your appeal of our original full response to you.
We apologise for the delay in responding.
We confirm that we uphold our original response of Section 12
exemption for part of your request.
We hope that you find this response satisfactory. You have a further right
of appeal against this decision, which you can do so in writing, stating
your reasons to the regulating body, the Information Commissioner's
Office.
Contact details: [1]http://www.ico.gov.uk/ or 0303 123 1113 or Wycliffe
House, Water Lane, Wilmslow, Cheshire, SK9 5AF.

Yours sincerely
Maria Kaminski
Corporate Information Team
020 8314 6848

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Paul Cardin left an annotation ()

Lewisham Borough Council went to internal review, before deciding against supplying the information. This internal review failed and I will now appeal to the Information Commissioner's Office.

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.