Total Annual Figures for Compromise Agreements, etc.

Paul Cardin made this Freedom of Information request to Wirral Metropolitan 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 Wirral Borough Council,

Please supply totals for the following:

Since the inception of Wirral Borough Council, or as far as records go back, the annual figures for the total number of current employees or ex-employees of Wirral Borough 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 Wirral Borough Council's legal team, to 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

InfoMgr, FinDMT, Wirral Metropolitan Borough Council

Good Afternoon,
Thank you for your request for information below, I have detailed information below in response to your enquiry and I hope you find the information of use.

The Council is not aware of any Compromise Agreement that has been drawn up that has included a term requiring the employee to forego their right to make requests under the Freedom of Information Act or the Data Protection Act.

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Dear Jane Corrin,

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. In the last 20 days I have received 141 (one hundred and forty one) full and detailed responses. These councils did not have any difficulty in responding positively to what they regarded as a reasonable request for public information.

I am currently involved in research in this area and in order to
make the task somewhat more manageable for you, 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 141 councils have not found any difficulty, I
imagine that they may be taking a different approach to locating
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 and not make legal approaches to the Council in the
future. Your Accounts department is required to keep a detailed
electronic record of all such payments. As they should be keeping an accurate and 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, for business purposes and in the public interest, may keep a similar searchable database.

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

Yours sincerely,

Paul Cardin

Dear Wirral Borough Council,

Just to keep you updated, as you continue to work on the request.

I have now received 223 positive and detailed responses from your fellow LGA colleagues. These responses originate from councils of varing size and make up, and span the length and breadth of the country.

I hope this update provides some encouragement and impetus to you, as you progress ever nearer towards releasing the figures. I'm actually itching to see this now. It is, after all, information which we as the public are paying you to maintain and keep on our behalf, hopefully in good standard data storage / retrieval systems that can be queried effectively with our interests at heart.

Again, many thanks in advance,

Yours faithfully,

Paul Cardin

Dear Wirral Borough Council,

Thanks for your ongoing efforts, assuming that you are still hard at work on my request.

In the spirit of keeping you up to date, 240 of your LGA colleagues have now responded positively and in full.

Many thanks in advance,

Yours faithfully,

Paul Cardin

Dear Wirral Borough Council,

Latest update - 251 positively responding English Councils,

Yours faithfully,

Paul Cardin

Dear Wirral Borough Council,

Latest update - 262 positively responding English Councils,

Yours faithfully,

Paul Cardin

Dear Wirral Borough Council,

Please can you provide some reassurance that you are looking at the request I sent on 31st January, in which I asked you to reduce the scope of the original request.

I would appreciate some acknowledgment for this as we're now well into March,

Yours faithfully,

Paul Cardin

InfoMgr, FinDMT, Wirral Metropolitan Borough Council

Good Morning,
Your enquiry is being looked at by our Legal Section and I have asked
them for a progress update today.
Kind Regards
Jane Corrin

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Dear InfoMgr, FinDMT,

We are now approaching April, and over 60 working days into my request, placed back in January.

Please can you provide the information? Or at least give me another update, or a further reason for not providing it? It really shouldn't have taken a quarter of a year to get to where we are today.

I also left a message today at 4:05 pm on the voicemail of 'Jane Corrin'. I'm hopeful that this may prove more fruitful,

Yours sincerely,

Paul Cardin

InfoMgr, FinDMT, Wirral Metropolitan Borough Council

Good Afternoon,
Thank you for your email below. I have spoken to the Officer reviewing
your request and she has advised me she is drafting a detailed response
to you, which you will receive shortly.
The Council does apologise that you have had to wait an unacceptable
length of time for a full response to your reduced scope enquiry.
Thank you for your continued patience in this matter.
Kind Regards
Jane Corrin
Information Manager
Wirral Council

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Lyon, Rosemary A., Wirral Metropolitan Borough Council

Dear Mr Cardin,

I refer to your request for information under the Freedom of Information
Act 2000, which was contained in your email of 1 January , in which you
asked for the following information:-

"Since the inception of Wirral Borough Council, or as far as records
go back, the annual figures for the total number of current
employees or ex-employees of Wirral Borough 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 Wirral Borough Council's legal team, to forgo their
right to approach the council in the future with Freedom of
Information and/or DPA Subject Access requests under the relevant
Acts"

The Council made an initial written response by email on 31 January 2011
in connection with the second part of your request and indicated that

they were not aware of any Compromise Agreement that has been drawn up
that had included a term requiring the employee to forego their right to
make requests under the Freedom of Information Act or the Data Protection
Act. You responded to this email on 31 January 2011 and redefined your
request for information (in respect of the first part of your original
request) as follows:

"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."

I apologise for the delay in responding to your request. This has been
caused by extensive inquiries to various departments within the Council as
to whether it is possible and how long it would take to extract the
information sought from the Council's IT systems and manual records. The
response to these inquiries indicates that to determine whether it holds
the information sought, the Council; would need to look manually at
employee personnel files, which would amount to approximately 6500 files.
There is no line of code in the Council's financial system which relates
directly  to compromise agreement and it is not possible to identify
them from the financial ledger. Because of a change in the method in which
the actual financial payments were made to employees who have signed
compromise agreements, it is not possible to search electronically against
payments made and would require a manual exercise to be undertaken to
identify such payments and whether compromise agreements were signed.

I consider that the exemption contained in section 12 (1) of the Freedom
of Information Act 2000 applies to your requests (both the original and
the redefined request) as the authority estimates that the cost of
complying with request would exceed the appropriate limit and that
therefore the authority is not obliged to comply with your requests for
information. I have had regard to Regulation 5 of The Freedom of
Information and Data Protection (Appropriate Limit and Fees ) Regulations
2004, SI No 3244. This concerns where two or more requests for information
are made to a public authority by one person, " the estimated cost of
complying with any of the requests is to be taken to be the total costs
which may be taken into account by the authority, under Regulation 4, of
complying with all of them" In estimating the costs of compliance, the
authority has complied with Regulation 4 (3) of the 2004 Regulations,
which provides that for the purposes of its estimate, a public authority
may take account only of the costs it reasonably expects to incur in
relation to the request in:-

(a) determining whether it holds the information,

(b) locating the information, or a document which may contain the
information,

(c) retrieving the information, or a document which may contain the
information,

(d) extracting the information from a document containing it.

The appropriate limit in the case of a public authority such as the
Council is £450 , which equates to18 hours, calculated at £25 per
hour. (Regulation 3(3) of the 2004 Regulations ). I have had regard to the
guidance issued by the Information Commissioner's Office in respecting of
using the 2004 Regulations .The authority has estimated that the cost of
complying with your request, would  exceed the appropriate limit of 18
hours (calculated on examining 6500 files at  10 minutes per file). To
respond to your refined request would still require an examination of
personal files to exclude the categories listed. The authority considers
the above estimate to be reasonable. The authority considers that it is
not in a position to comply with its obligation to confirm or deny whether
it holds the information sought under because to do this would itself
exceed the appropriate limit.

Having regard to the duty on the authority under Section 16 of the Freedom
of Information Act 2000 to advise and assist an applicant requesting
information, the authority would advise that requests may be refined or
limited to come within the cost limit of £450.However it is difficult
to advise how this could be done in respect of your request  to bring
it within the limit, but If you would like to further refine or limit your
request, please let me know.

You have the right under Section 17 of the Freedom of Information Act 2000
to ask for an internal review of the use of the exemption under Section 12
in connection with the information requested. Please would you direct any
request for an internal review to Mr Surjit Tour, Head of Legal and Member
Services, Department of Law, HR and Asset Management, Town Hall, Brighton
Street, Wallasey, CH44 8ED. The internal review process is similar to the
Council's complaints procedure details of which are available here:
[1]http://www.wirral.gov.uk/my-services/adv...

If you are dissatisfied with the Council's response to the internal
review, you have the right to complain to the Information Commissioner,
whose address is the Information Commissioner's Office,

Wycliffe House
Water Lane
Wilmslow
Cheshire SK9 5AF

[2]www.ico.gov.uk <[3]http://www.ico.gov.uk/>

Tel: 08456 30 60 60 or 01625 54 57 45
Fax: 01625 524510

Yours sincerely,

Rosemary Lyon,

Solicitor,

Wirral Borough Council

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http://www.ico.gov.uk/

Dear Wirral Borough Council,

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

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

I'm disappointed by the amount of time you've taken to refuse this request - 3 months.

I believe I have a right to know whether you hold the information or not, and don't believe you can quote a costs exemption with regard to this question. You were able to confirm you were not aware of the use of FOI / DPA related gagging clauses after all.

To date, 280 councils have responded positively and in full. I'd like to think that after 11 years of FOI, your systems would have been better attuned to responding to public requests. I also feel that the maintenance and upkeep of inadequate data storage and retrieval systems is no justification for turning down reasonable public requests. You are not fulfilling your public role to a satisfactory standard and I am left frustrated and disappointed.

During this review, please take into account all the information I have sent to date and please inject some more urgency, and a heightened level of response to requests for updates.

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 Wirral Borough Council,

An acknowledgment to my request for internal review would have been a courtesy, but the opportunity has now been lost.

Almost another month has elapsed. Please can you update me on the situation?

Yours faithfully,

Paul Cardin

InfoMgr, FinDMT, Wirral Metropolitan Borough Council

Good Morning,
Thank you for your email shown below. I will contact legal services
today and ask them for an update. Thank you for your patience.
Kind Regards
Jane Corrin

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Dear InfoMgr, FinDMT,

Did 'Legal Services' provide you with an update?
What is actually going on with this request?
Why is the whole thing becoming so drawn out?

Yours sincerely,

Paul Cardin

InfoMgr, FinDMT, Wirral Metropolitan Borough Council

Good Morning,
Legal Services have your enquiry; I will telephone them this morning and
give you an update on where your enquiry is up to,
I do apologise for the delay in you receiving an answer.
Kind Regards
Jane Corrin
Information Manager
Wirral Council

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Dear InfoMgr, FinDMT,

After reading this and several of your responses to other FOI requests, I've come to the conclusion that you are not very good at keeping your promises Wirral Council.

This request will now go to the Information Commissioner if I don't receive the result of the internal review before Tuesday 24th May 2011,

Yours sincerely,

Paul Cardin

Tour, Surjit, Wirral Metropolitan Borough Council

Dear Mr Cardin

I apologise for the delay in responding to your request for a review.

I will endeavour to provide you with my response by close of business
tomorrow as requested or at the very latest on Wednesday 25 May.

I appreciate you patience in this matter and once again apologise for not
providing my reply sooner.

Yours sincerely

Surjit Tour

Head of Legal & Member Services

Wirral Metropolitan Borough Council

Department of Law, HR and Asset Management

Town Hall

Brighton Street

Wallasey

Wirral

CH44 8ED

Tel: 0151 691 8569

Fax: 0151 691 8482

Email: [1][email address]

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Tour, Surjit, Wirral Metropolitan Borough Council

1 Attachment

Dear Mr Cardin

Further to my email of 23 May, please find attached my Review Decision
Letter.

If you have any queries, or if I can be of any further assistance please
do not hesitate to contact me.

Yours sincerely

Surjit Tour

Head of Legal & Member Services

Wirral Metropolitan Borough Council

Department of Law, HR and Asset Management

Town Hall

Brighton Street

Wallasey

Wirral

CH44 8ED

Tel: 0151 691 8569

Fax: 0151 691 8482

Email: [1][email address]

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Dear Tour, Surjit,

Thank you. I'm afraid your response is incomplete. There is only ONE PAGE in the package, also it's been saved in .TIFF format (a photographer's / graphic artist's choice) - not ideal, and difficult for most people to open if they don't have the correct software to hand.

Please send the FULL response, which I assume is in your possession. And please send it as a Microsoft Word .doc or failing that, a .jpg document.

Yours sincerely,

Paul Cardin

Dear Wirral Borough Council,

Or a .pdf will be fine - which is what most other councils do. Thanks in advance,

Yours faithfully,

Paul Cardin

Tour, Surjit, Wirral Metropolitan Borough Council

1 Attachment

Dear Mr Cardin

If you are able to view the first page of the attachment then you can
scroll down the pages using the page number icon that appears on the
toolbar at the bottom of the page of the attachment. A full copy of my
letter has been sent to you.

However, I enclose a .pdf version for your reference.

Yours sincerely

Surjit Tour
Head of Legal & Member Services

Wirral Metropolitan Borough Council
Department of Law, HR and Asset Management
Town Hall
Brighton Street
Wallasey
Wirral
CH44 8ED

Tel: 0151 691 8569
Fax: 0151 691 8482
Email: [email address]

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Dave rimmer left an annotation ()

Nearly 5 months to use "section 12" to basically refuse your request, hmmmmmmmmmmm

Paul Cardin left an annotation ()

Wirral Borough Council went to internal review, before deciding against supplying most of 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 ()

Just catching up. Wirral Council were the very LAST council to respond out of the total of 345 English councils who were asked these questions in January 2011.

In total, they took 216 working days to provide the following:

2006: 2
2007: 1
2008: 3
2009: 2
2010: 4
2011: 0 (My note: needs new request to obtain real figure)

The FoI / DP gagging clause has never been used.

ScarletPimpernel left an annotation ()

Well you know as well as I do Paul, that your FOI requests used to attract so much attention from Wirral Council's senior management that they would quite happy make sure it went all the way to ICO and then release as little of the information they could get away with.. :)

john hardaker left an annotation ()

Paul thank goodness for your persisting with your request & I am not suprised that wirral council would be the last to comply with your FOI request. Surjit Tour is a dab hand at hiding behind so called regulations that hide the ineptitude of the council & surely their record
should comply with inland revenue rules & it is obvious that they have something to hid,no suprises there then. I will watch this space with great interest

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

ScarletPimpernel left an annotation ()

Well this is how long it takes to get a court order on a Data Protection issue.

Subject Access Request
Wait 40 days.
No reply Day +40
Write letter with deadline of 14 days away Day+54
File court case. Wait to go to court.
Case goes to court Day+115
Wait for court order to be issued Day+136
Wait for body to comply with court order Day+166

So even if you sued over a Data Protection Act issue, it could take 6-10 months to get anywhere!

Ray Rowland left an annotation ()

Wirral Borough Council playing fast and loose yet again. They are becoming quite adept at it.
Stalling tactics of this nature serve one purpose only, that the person stalling has most definitely something to hide, in Wirral Borough Councils case this is something that has been known for a long time, underhanded dealings covered by the "so called" legal department are nothing new so it's about time WBC woke up to the fact that the people of Wirral and the wider population have got the measure of you and your underhanded techniques. Ray Rowland