Total Annual Figures for Compromise Agreements, etc.

Paul Cardin made this Freedom of Information request to Medway 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 refused by Medway Council.

Dear Medway 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

bell, stuart, Medway Council

Dear Mr Cardin

Request for Information Reference Number: RFI/3944

Thank you for your request for information which we received on 05/01/2011

We are dealing with your request under the Freedom of Information Act 2000
and hope to be able to complete the request within 20 working days.

We may have to apply exemptions to the information that you have requested
which could mean that all or part of the information you have requested
may be withheld. There may be information that you have requested that
will need to be subject to a public interest test or liaison with an
external agency or company which could mean the 20 day deadline will be
exceeded.

If such an instances arises where it is not possible to return the
information you have requested within the 20 working day deadline you will
be informed as soon as possible.

If you have any questions please use the contact details of the person
above, quoting your reference number.

For further information on the Freedom of Information 2000, the exemptions
and how your request will be dealt with you can log onto the Medway
Council website at
[1]www.medway.gov.uk/councilanddemocracy/performanceandpolicy/freedomofinformationact.aspx

Yours sincerely.

Stuart Bell

ICT Support Officer

ICT Department

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References

Visible links
1. http://www.medway.gov.uk/councilanddemoc...
http://www.medway.gov.uk/councilanddemoc...

Dear Stuart Bell,

By law, I believe the authority should have responded promptly and
by 1st February 2011.

Although I have received no response, to assist, I would like to
'sharpen' and reduce the scope of the original request as follows:

Please exclude all COT3 Agreements and all compromise agreements
drawn up in the following circumstances:

1. Purely redundancy situations
2. Purely PILON (pay in lieu of notice) situations
3. Equal pay claims
4. TUPE situations

Further to this, please reduce the time period to the years between
2005 and 2010 i.e. the last six years.

I am researching this particular area and aim to view trends and
movements both regionally and nationally. It would benefit myself
and the authority if the figures reached were as accurate as
possible.

When responding, please give figures in calendar year format e.g.
2005 - 1; 2006 - 3; 2007 - 2; etc.

Many thanks in advance,

Yours sincerely,

Paul Cardin

bell, stuart, Medway Council

Dear Mr Cardin

Apologies that you have not yet received your response.

As the request dealt with information outside of my area of expertise,
the request was passed on to a colleague in a different department. I
have forwarded on your email to them and they should respond to you in
due course.

Once again apologies for the delay in receiving your response.

Yours sincerely

Stuart Bell

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Dear Stuart Bell,

Thanks for your reply, but it makes little sense.

To place my request into some context, a largely identical query has been addressed quickly and positively by a total of 167 English Councils.

Your attempt at an explanation after 20 days of silence is rather unique,

Yours sincerely,

Paul Cardin

bell, stuart, Medway Council

Dear Mr Cardin,

Thank you for your email.

I appreciate your frustrations at not having received a response,
particularly in light of your better experiences with other Councils.
Unfortunately I haven't been responsible for this request for several
weeks and so I have forwarded on your concerns to the person who I
passed the request to. If you would prefer to contact them directly
their email address is [email address]

Yours sincerely,

Stuart Bell

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Dear Stuart Bell,

Thanks for confirming that the request was lying in a sort of limbo - where nobody was apparently responsible for it.

However, as a co-operative member of the public seeking my information, I won't labour the point and look forward to receiving a positive response,

Yours sincerely,

Paul Cardin

bone, jacqui, Medway Council

2 Attachments

Dear Sir

Please find attached the response to your request for information.

Kind regards

pp Rose Cook
Complaints Officer

Housing and Corporate Services
Medway Council
Gun Wharf
Dock Road
Chatham
Kent
ME4 4TR

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Dear Jacqui,

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 179 (one hundred and seventy
nine) full and detailed positive responses. These councils did not
have any difficulty in responding to the same
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 179 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

hcsfoi, Medway Council

Dear sir,

The deadline I was given to respond to your request for information
reference 3944 was 2nd February 2011. Whilst the response was ready to
be sent on the evening of the 2nd February, no officers were available
to email it to you, and therefore it was sent to you on the morning of
the 3rd February. I sincerely apologise for the delay and any
inconvenience this may have caused you.

Your email below providing clarification was not considered as part of
your request as the response was already written and signed prior to our
receipt of your message. If you wish for this request to be considered,
I must advise that you submit a new request for information and we will
be happy to provide a response.

I hope the information provided was to your satisfaction, but please let
me know if I can provide any further assistance.

Many thanks and kind regards,

Rose Cook
Complaints Officer

Housing and Corporate Services
Medway Council
Gun Wharf
Dock Road
Chatham
ME4 4TR

[email address]
01634 333055

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Dear hcsfoi,

Thanks for your response.

Please address the reduced query as soon as possible. To provide you with an update, there is now a total of 194 of your LGA colleagues who have responded positively and in full - and the overwhelming majority within the 20 days.

Please also address the second question within the inital query i.e. Does the council employ 'gagging clauses' relating to restricting employees' statutory rights over FOI / DPA?

Many thanks in advance. Please

Yours sincerely,

Paul Cardin

Dear Medway Council,

Hi. It's now March and I'm still waiting for your response. Please respond as soon as possible,

Yours faithfully,

Paul Cardin

hcsfoi, Medway Council

1 Attachment

Dear Mr Cardin,

Your adjusted request below was treated as a new request (as I advised you in my below email) and as such the Council had 20 working days to provide you with a response.

Similar to your previous request, I passed your new request to the Head of Legal Services to provide a response. I have been asked to pass this response to you:

I can confirm that the Council holds the information requested. However, we can not provide the information requested as the Council has assessed your request and considers that the costs of compliance with your request will exceed the "appropriate limit", as referred to in section 12 of the Freedom of Information Act 2000 ("the Act"). The appropriate limit for local authorities is £450.

Your request for "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" will require Legal Services to retrieve and check through every compromise agreement which we have entered into during the period 2005 -2010 and it is that element of the request that causes the request to exceed the appropriate limit.

Under the Act the Council has the right to decline a request where the appropriate limit is exceeded.

The Council may be able to comply with a request within the appropriate limit if you are able to narrow your request by, for example, restricting the number of years and/or narrowing the scope of the request.

If you are unhappy with the information we have provided or wish to complain about any other issue regarding the Freedom of Information Act 2000, please see the attached 'Request for Information Complaints Procedures'.

Many thanks and kind regards,

Rose Cook
Complaints Officer

Housing and Corporate Services
Medway Council
Gun Wharf
Dock Road
Chatham
ME4 4TR

[email address]
01634 333055

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Dear Medway Council,

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

I am writing to request an internal review of Medway 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 246 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 Medway 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 Medway 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 over three times the statutory period allowed,

Yours faithfully,

Paul Cardin

Dear Medway Council,

Please respond to acknowledge my request for a review a long time ago and my ongoing requests for action,

Yours faithfully,

Paul Cardin

hcsfoi, Medway Council

Dear Mr Cardin,

Your request for internal review has been received. The review is complete and the final response will be sent to you shortly.

Many thanks and kind regards,

Rose Cook
Complaints Officer

Housing and Corporate Services
Medway Council
Gun Wharf
Dock Road
Chatham
ME4 4TR

[email address]
01634 333055

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hcsfoi, Medway Council

Dear Mr Cardin,

I apologise for the further delay in responding to you. The Monitoring Officer, Deborah Upton, has queried the conclusion of the review and passed the response back to Legal Services. However, I envisage that a final response will be sent to you before the end of this week.

I hope that this delay has not caused you any inconvenience, but please be assured that the Council does not take your request for review lightly and is looking to ensure that it is being fully and correctly investigated.

Many thanks and kind regards,

Rose Cook
Complaints Officer

Housing and Corporate Services
Medway Council
Gun Wharf
Dock Road
Chatham
ME4 4TR

[email address]
01634 333055

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hcsfoi, Medway Council

1 Attachment

Dear Mr Cardin,

After much discussion between Legal Services and Deborah Upton, Monitoring Officer, the review into the Council's response to your request for information has been concluded. Please find the response attached.

Should you remain dissatisfied with the response, please contact the Information Commissioner's Office.

Many thanks and kind regards,

Rose Cook
Complaints Officer

Housing and Corporate Services
Medway Council
Gun Wharf
Dock Road
Chatham
ME4 4TR

[email address]
01634 333055

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Paul Cardin left an annotation ()

Medway 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.

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