Total Annual Figures for Compromise Agreements, etc.

Paul Cardin made this Freedom of Information request to North East Lincolnshire 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 North East Lincolnshire Council,

Please supply Annual totals for the following:

As far as records go back, the annual figures for the total
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

PPD - FOI, North East Lincolnshire Council

Dear Mr Cardin

I am pleased to acknowledge your request for information received on 05
January 2011, which has been allocated the reference number 20110108.

Your request has been passed to the relevant department for processing
and you can expect your response within the 20 working day limit. If it
will take us longer than 20 working days to respond to you, we will
inform you of this and provide you with the expected date for receiving
the response.

Further information about how we will deal with your Freedom of
Information requests is available on our website at:
http://www.nelincs.gov.uk/council-and-de...
dom-of-information/

Please feel free to contact me if you require any further information or
assistance quoting the reference number above.

Yours sincerely

Freedom of Information Officer
North East Lincolnshire Council

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George Cant left an annotation ()

Very good question for our council

www.crazycouncil.co.uk

there has been afew substantial ones around here and i was just about to get on this.

You may also wish to ask this of the Local collageand its prinicpal

PPD - FOI, North East Lincolnshire Council

Dear Mr Cardin

Thank you for your request under the Freedom of Information Act made on 05 January 2011, reference number 20110108.

In accordance with section 1 of the Freedom of Information Act 2000, I can confirm that North East Lincolnshire Council holds the information you have requested.

Under section 12 of the Freedom of Information Act 2000, a public authority is not obliged to comply with a request where the estimated cost of doing so would exceed the appropriate amount. We have estimated, that the time required for the activities needed to locate, retrieve and extract the information you have requested would exceed the appropriate limit of £450 (18 hours).

The Council's Charging Policy for information requests, which clearly sets out our responsibilities and how the charging policy is applied, is available on our website at http://www.nelincs.gov.uk/council-and-de....

As a Council we are committed to the Freedom of Information Act and are happy to support where ever possible any request for information we receive. We would like to offer you our advice and assistance to refine your request, so the appropriate limit will not be exceeded and the information can be provided free of charge. The information you have requested would require a review of each individual employee record as details of compromise agreements are not recorded separately.

Please let me know if you wish to discuss refining your request in line with the appropriate limit or wish us to investigate further the estimated costs that will be incurred in meeting your original request.

If you are unhappy with the response you have received, you have the right to request an internal review by the Council. If following this you are still dissatisfied you may contact the Office of the Information Commissioner. If you wish to request an internal review, please contact me and I will make the necessary arrangements.

Yours sincerely

Freedom of Information Officer
North East Lincolnshire Council

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Dear PPD - 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

George Cant left an annotation ()

NELC try and use the cost to avoid answering any questions that put them in a bad light.

There are a few very bad ones that they are rtying to avoid publisising. maybe asking for all comp agreemants for innr core council. Or just ask for interal review on your first requests. Our ex chief exec and another sinior staff one was quite a big and unusual one

read this, you will see how the inner managment works round here.
http://www.crazycouncil.co.uk/council-ta...

Have you noticed that they have waited the full time to reffuse as well, it another indication that somethings hidden

PPD - FOI, North East Lincolnshire Council

Dear Mr Cardin

Thank you for your e-mail of 2nd February 2011, refining the scope of your request (20110108) and advising on a potential solution by which it could be answered within the appropriate limit.

Following discussions with our Finance and Human Resources Departments, we still estimate that the time required for the activities needed to locate, retrieve and extract the information you have requested would exceed the appropriate limit of £450 (18 hours).

As the cost of complying with your request would exceed the appropriate amount, by virtue of section 12 of the Freedom of Information Act 2000 the Council is not obliged to comply with your request. I must therefore inform you that North East Lincolnshire Council will not be responding to your request in relation to the annual figures of current and former employees who have signed compromise agreements as doing so would exceed the appropriate limit of £450.

Please feel free to contact us if you wish to discuss your request further.

If you are unhappy with the response you have received, you have the right to request an internal review by the Council. If following this you are still dissatisfied you may contact the Office of the Information Commissioner. If you wish to request an internal review, please contact me and I will make the necessary arrangements.

Yours sincerely

Paul Ellis
Corporate Records and Information Manager
North East Lincolnshire Council

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Dear North East Lincolnshire Council,

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

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

It appears, given the wider context of my research, that there is a kind of 'postcode lottery' at play, whereby, to date, a total of 181 English authorities have responded positively and in full, the vast majority within the 20 working day period allowed.

Whereas the response here is quite different, and I believe not justified.

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

Bradley Roberts left an annotation ()

North-east Lincolnshire Council has so much dirty washing that it will use the "£450 rule" to block any embarrassing requests. Same, in other forms. mainly the Data Protection Act, goes for Grimsby Institute.

PPD - FOI, North East Lincolnshire Council

Dear Mr Cardin

Thank you for your email requesting an internal review of North East
Lincolnshire Council's handling of your Freedom of Information request,
reference 20110108.

This has been passed to the appropriate department to conduct the review
and you can expect a response in due course.

Yours sincerely

Freedom of Information Officer
North East Lincolnshire Council

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PPD - FOI, North East Lincolnshire Council

Dear Mr Cardin,

An internal Review has taken place following your request of February 4th
2011, into North East Lincolnshire Council's handling of your
information request 20110108.

Background

Your original request was made on January 5^th 2011, and asked for the
annual totals, for as far as records are held, of

* The number of current employees / ex-employees (including teaching
staff) who have signed compromise agreements directly related to the
resolving of dispute(s) / grievance(s) / internal and external
investigation(s) / whistleblowing incident(s).
* 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.

The Council responded to your request on February 2^nd 2011, confirming
that they held the information requested, but had estimated that the
time required for the activities needed to locate, retrieve and extract
the information requested would exceed the appropriate limit of £450
(18 hours). Advice and assistance was offered to help you refine the
scope of your request and allow it to be answer within the appropriate
limit.

You responded to the Council on February 2^nd 2011, refining your
request to cover the following circumstances during the period 2005 to
2010.

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)

Further you suggest that the Council's Accounts Department would be able
to assist with obtaining this information, 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.

The Council responded to your request on February 4^th 2011, following
further discussions with services responsible for the activities
associated with the information you requested. The response informed you
that the time estimated to respond to your refined request still exceed
the appropriate limit of 18 hours, and therefore the Council would not
be complying with your request by virtue of section 12 of the Freedom of
Information Act.

Review

I have reviewed the responses provided to you on February 2^nd and 4^th,
and concluded that North East Lincolnshire Council has meet its
responsibilities to you under the Freedom of Information Act to 2011,
namely

* To inform you whether or not the information is held by North East
Lincolnshire Council;
* To comply with the request within the statutory time of 20 working
days; and
* To explain why the information cannot be supplied to you.

I have also reviewed the Council's estimate that the time required to
locate, retrieve and extract the information requested would exceed the
appropriate limit of £450 (18 hours). I have established that North
East Lincolnshire Council does not maintain a separate register of
individuals who have signed compromise agreements with them. Therefore to
obtain the information you have requested would require a review of the
Council's personal files.

I have investigated whether a review of the Council's financial
transactions, as suggested by you, would enable the information you
require to be extracted. The codes used in the Council's eFinancials
General Ledger do not include a specific code for compromise payments,
meaning any extract of potential compromise payments would also include
other payments such as those for compensation and redundancy. Therefore to
extract the information you have asked for would require the financial
records for each transaction extracted to be checked to identify the
payroll number of the payee, this information would then be used to check
the relevant personal file to confirm if a compromise agreement was in
place for the reason(s) specified in your request. The time for each check
has been estimated at 15 minutes, an initial review of the General Ledger
has identified over 600 payments would need to be checked. The time
estimated to locate, retrieve and extract the information you have
requested would therefore be over 150 hours.

Summary

I am satisfied that North East Lincolnshire Council has handled your
request in accordance with the Freedom of Information Act in terms of
timeliness, confirming that the information is held and explaining the
reasons why the information cannot be provided to you. I am further
satisfied that the application of section 12 of the Freedom of Information
Act to refuse your request on the basis that the estimated time required
to locate, retrieve and extract the information requested has been
properly considered and applied by the Council.

I trust that the internal review has answered your query in full, however
if you remain dissatisfied with the Council's handling of your request,
you can request an independent review by contacting the Information
Commissioner's Office at:

Information Commissioner's Office
Wycliffe House
Water Lane
Wilmslow
Cheshire SK9 5AF

Telephone 08456 306060 or 01625 545745

Yours sincerely on behalf of North East Lincolnshire Council
 
Paul Ellis
Corporate Records and Information Manager
North East Lincolnshire Council

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Dear PPD - FOI,

Thanks for your response and for advising that reducing the scope of the original request might help. This didn't actually help, but I would like to draw your attention to the second part of the original request, which referred to "gagging clauses".

Can you please give a categorical response regarding the use of FOI / DPA related gagging clauses within compromise agreements? What's the council's policy? Have you ever used this tactic? A call to the Legal and Human Resources departments may provide answers.

Many thanks in advance, whilst I consider whether to take this to the ICO,

Yours sincerely,

Paul Cardin

PPD - FOI, North East Lincolnshire Council

Dear Mr Cardin

I am pleased to acknowledge your further request for information received on 28 February 2011, following your response to your Freedom of Information request reference number 20110108.

Your email has been passed to the relevant department for processing and you can expect your response in due course.

Further information about how we will deal with your Freedom of Information requests is available on our website at: http://www.nelincs.gov.uk/council-and-de...

Please feel free to contact me if you require any further information or assistance quoting the reference number above.

Yours sincerely

Freedom of Information Officer
North East Lincolnshire Council

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PPD - FOI, North East Lincolnshire Council

Dear Mr Cardin

Further to your e-mail of February 28th 2011, I am pleased to confirm that
the following clause is included within compromise agreements drawn up
between North East Lincolnshire Council and current and former employees.

'The terms of the settlement set out in this agreement shall remain
confidential to the Employee and the Employee's immediate family and the
Council/School, together with the trade union and professional advisers
to both parties, save insofar as the terms of the settlement are
required to be disclosed to any competent authority'.

There is nothing in the agreement which hinders or prevents an
individual's right to approach North East Lincolnshire Council in the
future with a Freedom of Information or DPA Subject Access request.

I trust that this answers your enquiry in full, however if you remain
dissatisfied with the Council's handling of your request, you can request
an independent review by contacting the Information Commissioner's Office
at:

Information Commissioner's Office
Wycliffe House
Water Lane
Wilmslow
Cheshire SK9 5AF

Telephone 08456 306060 or 01625 545745

Yours sincerely on behalf of North East Lincolnshire Council
 
Paul Ellis
Corporate Records and Information Manager
North East Lincolnshire Council

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Paul Cardin left an annotation ()

North East Lincolnshire 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