Total Annual Figures for Compromise Agreements, etc.

Paul Cardin made this Freedom of Information request to Plymouth City 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 Plymouth City Council.

Dear Plymouth City 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

Info, Plymouth City Council

Thank you for contacting us. This email is to confirm that we have
received your message.

Your email will be passed to the correct department, who will normally
deal with it within five working days.

If you need to contact us in the meantime please telephone 01752 668000.

Further information about our services is available on
[1]www.plymouth.gov.uk

Plymouth City Council
Plymouth
PL1 2AA

[2]www.plymouth.gov.uk

IMPORTANT
This email (including any attachments) should only be used if you are the
intended recipient. Email should not be used to convey personal, sensitive
or privileged information over the public network. Errors may be present
and you should carry out your own virus check. This message may be
supplied to an applicant under UK legislation. If the message is marked
private it does not represent the views of Plymouth City Council.

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Info, Plymouth City Council

Dear Paul

Thank you for your email of which has been passed onto the FOI Corporate
Support department here at Plymouth City Council. Someone from this team
will now be in contact with you within the next 20 working days. Hope
this is of some help.

Thank you

Gavin O'Riley
Customer Services Helpdesk Advisor
Customer Services & Business Transformation
Department for Corporate Support
Plymouth City Council
Plymouth
PL1 2AA
Tel. 01752 680000
Fax. 01752 308714
Email: gavin.o'[email address]

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FOI Corporate Support, Plymouth City Council

Dear Mr Cardin

Thank you for your request for information dated 6th January 2011 concerning compromise agreements.

This request is being handled under the Freedom of Information Act 2000.

From our preliminary assessment, we estimate that compliance with the first part of your request would exceed the appropriate costs limit under section 12 of the Freedom of information Act 2000 this is currently £450 which is equivalent to 18 hours of staff time. This is due to the information historically not being held on a electronic database, therefore current/former employees personnel files would need to be manually accessed to gather the information requested.

In relation to the second part of your request relating to Freedom of Information and the Data Protection Act the answer is none due to the fact that it would be illegal to make an employee sign and forgo their right to approach the council with information access requests.

If you are unhappy with the way your request for information has been handled, you can request a review by writing to me stating the reason for your dissatisfaction.

If you remain dissatisfied with the handling of your request or complaint, you have a right to appeal to the Information Commissioner at: The Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF.
Telephone: 08456 30 60 60 or 01625 54 57 45 Website: www.ico.gov.uk
There is no charge for making an appeal.

Regards

Kimberly Spry
Assistant HR Adviser
Human Resources & Organisational Development
Corporate Support Directorate

T: 01752 304563
E: [email address]
W: www.plymouth.gov.uk

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Dear Kimberly,

In order to make the task easier, and less time-consuming, could you modify it as follows:

1. Restrict the time period to the last 6 calendar years i.e. between 2005 and 2010

2. Restrict the query to ex-employees only

3. Exclude all compromise agreements which are related to 'redundancy' alone,

many thanks in advance,

Yours sincerely,

Paul Cardin

FOI Corporate Support, Plymouth City Council

Dear Mr Cardin

Thank you for your further request. Due to the number of employees that leave the authority per calendar year this does in fact mean that the 18 hour exemption rule applies. For example between 01.01.10 and 31.12.10 there were 768 leavers. We would expect it to take 15 minutes to search through each personnel file , thus time spent on the collation of data for your request would greatly exceed 18 hours.

Please accept my apologies for not being able to help in this instance.

Regards

Kimberly Spry
Assistant HR Adviser
Human Resources & Organisational Development
Corporate Support Directorate

T: 01752 304563
E: [email address]
W: www.plymouth.gov.uk

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Dear Kimberly,

Thanks for your response. To put this request into perspective, I am researching this issue and have put an identical request to ALL English Councils, including Plymouth.

To date, 46 Councils have responded positively, and have been only too keen to assist and to offer access to public information, without quoting any exemptions or reasons for not doing so.

I would not want to resort to an internal review so early, and in order to assist you further, can I clarify my request as follows:

Please exclude any compromise agreements which refer to the following:

1. Purely redundancy situations
2. COT3 agreements (where tribunal proceedings have been initiated)
3. Equal pay claims
4. TUPE situations

That should narrow my request down a lot further and hopefully make it more manageable. Also, presumably your legal department will deal with ex-employees who have engaged in a compromise agreement related to the circumstances described in my original query, and hold records for these. Can you place a phone call to this department and request the Annual figures?

Lots of other councils have taken reasonable steps to supply the information. You won't have to plough through hundreds of files this way, and there don't have to be any unnecessary obstacles to the provision of public information.

many thanks in advance,

Yours sincerely,

Paul Cardin

FOI Corporate Support, Plymouth City Council

Dear Mr Cardin

Thank you for your message of 14 January 2011 reducing the type of
compromise agreements that you would like reported.

Our difficulty in responding to your request for numbers of compromise
agreements is that we do not keep a separate list of any compromise
agreements that have been entered into. This council has not had a
business requirement to keep a list of compromise agreements in any of
the service departments, or in the HR, Finance, or Legal departments. It
may be that other public authorities do keep such a list and are
therefore able to provide you with a response.

However it would be possible for us to compile a list by checking the
records concerning staff leavers.
But given that there were 768 leavers in 2010 that is a substantial
number of paper files to check in order to produce the information for
you. Your request for information is therefore being refused, not
because we do not want to be helpful within the timescale for responding
to FoI applications, but because you are asking us to consider more
records than can be achieved within 18 hours.

If you were prepared to reduce the number of files to be looked into to
(18 hrs X quarter of an hour per manual record) 72, then we could tell
you the number of compromise agreements made for that group of leavers.

If you are unhappy with the way your request for information has been
handled, you can request a review by writing to me stating the reason
for your dissatisfaction.

If you remain dissatisfied with the handling of your request or
complaint, you have a right to appeal to the Information Commissioner
at: The Information Commissioner's Office, Wycliffe House, Water Lane,
Wilmslow, Cheshire, SK9 5AF.
Telephone: 08456 30 60 60 or 01625 54 57 45 Website: www.ico.gov.uk
There is no charge for making an appeal.

Regards

Kimberly Spry
Assistant HR Adviser
Human Resources & Organisational Development
Corporate Support Directorate

T: 01752 304563
E: [email address]
W: www.plymouth.gov.uk

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Dear Kimberly,

I am doing my utmost to explain, to place this request into a wider context and to help you as much as possible so that you can provide what should be publically accessible information.

I am attempting to research these details, and to ultimately place them into a national context and attempt to observe patterns and trends. All in the public interest. A council's number one duty is to its public - this is why I am confused that you are using Business reasons to justify placing an obstacle in the way of free and fair access.

I won't immediately go to internal review, and think it only fair to give you a chance to reconsider - in the public interest, not a business related one!

Yours sincerely,

Paul Cardin

FOI Corporate Support, Plymouth City Council

Dear Mr Cardin

Thank you for your e-mail, please refer to the response sent on the 17th
January. We are unable to provide anything further in response to your
request other than what has previously been outlined.

Regards

Kimberly Spry
Assistant HR Adviser
Human Resources & Organisational Development
Corporate Support Directorate

T: 01752 304563
E: [email address]
W: www.plymouth.gov.uk

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Dear Plymouth City Council,

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

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

I have tried my best to be reasonable and to fully comply with the FOI Act, but without any real success in this instance. I am fearful that my request is being treated as an inconvenience - either because there is a 'business' reason for denying information or that sensitive information is being concealed.

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

Info, Plymouth City Council

Thank you for contacting us. This email is to confirm that we have
received your message.

Your email will be passed to the correct department, who will normally
deal with it within five working days.

If you need to contact us in the meantime please telephone 01752 668000.

Further information about our services is available on
[1]www.plymouth.gov.uk

Plymouth City Council
Plymouth
PL1 2AA

[2]www.plymouth.gov.uk

IMPORTANT
This email (including any attachments) should only be used if you are the
intended recipient. Email should not be used to convey personal, sensitive
or privileged information over the public network. Errors may be present
and you should carry out your own virus check. This message may be
supplied to an applicant under UK legislation. If the message is marked
private it does not represent the views of Plymouth City Council.

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Plymouth City Council

19 January 2011 Dear Mr P Cardin, I am acknowledging your
application for an Internal Review. Please can you clarify your
disagreement with the response to your request for information.

The council has stated that the number of records that need to be
searched to answer your application will exceed the time allowed
for FoI applications, but that a smaller set of records can be
searched for you.

Please can you advise whether you are disputing that the Council
does hold a list and is not providing that list, or that more
records can be searched within the time limit, or you have another
disagreement with the council's response.

When you have clarified the reason for disagreement with the
council's response I can proceed with arranging an Internal Review
that can take into account your point of view.

I am putting your request for an Internal Review on hold until you
have specified your disagreement with the current response to your
request for information.

Yours sincerely

Richard Woodfield Corporate Information Manager ICT Plymouth City
Council Civic Centre Plymouth PL1 2AA

www.plymouth.gov.uk

Dear Plymouth City Council,

Please check my earlier responses in which I clarified my request. Both in terms of the size of the query (now reduced to a smaller set of records) and in the type of information (now reduced to a smaller set of records).

If, like the officers of many other councils, you had envisaged that there would be natural requests for this crucial information from concerned members of the public, you would have adopted a more effective data storage and retrieval system.

I don't dispute the fact that you hold a list, regardless of the lumpen inaccessibility of it.

I suspect that you may have a reason for concealing items on the list, that are not compatible with the interests of the FOI act.

I don't dispute the unwelcome advice that your records can't be searched any quicker.

I don't believe that incompetence and an inability to spend public money in the interests of good provision of public information are adequate reasons for placing obstacles in the path of public access.

Many thanks, and please proceed with the internal review

Yours sincerely,

Paul Cardin

Dear Plymouth City Council,

I responded to your request for clarification on 19th January, but have heard nothing since.

Please acknowledge receipt of my clarification and advise upon the progress of the internal review,

Yours faithfully,

Paul Cardin

Info, Plymouth City Council

Thank you for contacting us. This email is to confirm that we have
received your message.

Your email will be passed to the correct department, who will normally
deal with it within five working days.

If you need to contact us in the meantime please telephone 01752 668000.

Further information about our services is available on
[1]www.plymouth.gov.uk

Plymouth City Council
Plymouth
PL1 2AA

[2]www.plymouth.gov.uk

IMPORTANT
This email (including any attachments) should only be used if you are the
intended recipient. Email should not be used to convey personal, sensitive
or privileged information over the public network. Errors may be present
and you should carry out your own virus check. This message may be
supplied to an applicant under UK legislation. If the message is marked
private it does not represent the views of Plymouth City Council.

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Woodfield, Richard (CORPORATE SUPPORT),

16 March 2011

Dear Paul Cardin
Thank you for your request for information dated 06 January 2011 and
received on the same day concerning total annual figures for compromise
agreements.

This request is being handled under the Freedom of Information Act 2000.
I am very sorry for the delay in completing the Internal Review that you
requested on 18 January 2011 and I am now responding to your message sent
on 19 January 2011 and your message sent yesterday. The council completed
its reconsideration of your request for information yesterday.

I am able to supply the information requested in the second part of your
request:
"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."

The response from the council is zero; no compromise agreements include
any such clause.

The first part of your request, as modified, was for:

"the annual figures between 2005 and 2010 for the total of 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).
Exclude all compromise agreements which are related to;
1. Purely redundancy situations
2. COT3 agreements (where tribunal proceedings have been initiated)
3. Equal pay claims
4. TUPE situations
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."

Our assessment is that we estimate that compliance with the first part of
your request would exceed the appropriate costs limit under section 12 of
the Freedom of information Act 2000; this is currently £450 which is
equivalent to 18 hours of staff time. This request must therefore be
refused.

This is because the only method available to us to identify the
information that you have requested, is to look at each of the leavers
paper files for the last 6 years and note from each of the files whether a
compromise agreement is in place and whether it falls into the criteria
that you have specified. Undertaking this research for you would result in
disproportionate resources being used to meet your application for
information.

We have considered whether any of the electronic databases that the
council maintains could assist, but none of them identifies compromise
agreements. Thus the council estimates that it will take on average 15
minutes for each file to be retrieved from its storage container, opened
and considered as to whether it holds a relevant compromise agreement or
not and to record the outcome for you. Therefore a maximum of 72 leavers
files can be searched (18 hrs X quarter of an hour) within the cost limit.

But given that there were 768 leavers in 2010 there are a substantial
number of paper files to check for the years 2005 to 2010. We did offer to
look at 72 files for you, but you refused this option.

If you remain dissatisfied with the handling of your request or complaint,
you have a right to appeal to the Information Commissioner at:

Information Commissioner's Office,
Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF.
Telephone: 0303 123 1113. Website: [1]www.ico.gov.uk
There is no charge for making an appeal.

Yours sincerely
Richard Woodfield
Corporate Information Manager
ICT
Plymouth City Council
Civic Centre
Plymouth
PL1 2AA

T 01752 304067
M 07917264564
F 01752 304997
E [email address]
[2]www.plymouth.gov.uk

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Info, Plymouth City Council

Dear Mr Cardin,

Thank you for your email. Unfortunately your link does not indicate
your original query. Could you please forward your original email to us
so that we can chase it up with the appropriate department.

Thank you.

Mark Delmonte
Customer Service Advisor
Ballard House
West Hoe Road
Plymouth
PL1 3LA

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Paul Cardin left an annotation ()

Plymouth City Council went to internal review, before deciding against supplying most of the information. This has been appealed with 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