Unscrutinised Machinations, Permitting Suspended Director of Law to Depart Wirral Council

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 Metropolitan Borough Council,

On 17th October 2012, it became public knowledge that suspended Director of Law, Bill Norman had received
permission, as part of a secret, protected and apparently unscrutinised process, concealed from public
view, to leave his employment with Wirral Council. According to the press, this is believed to follow an external investigation stating that he had "no case to answer" and to involve the granting of a package approaching £150,000 in public money.

http://www.wirralglobe.co.uk/news/999130...

Above is a link to a news story published today in the
Wirral Globe, which reported this matter. Once again, the comments beneath the article indicate the strength of feeling amongst a still outraged public.

The former CEO, Jim Wilkie, who himself is the subject of another freedom of information request, currently breaching the FOI Act:

http://www.whatdotheyknow.com/request/ag...

...admitted to years of learning disabled abuse by the council. This was followed by the departure of two senior social services officers in January of this year. It is still not clear whether these two individuals WERE leaving as a result of their involvement in abuse AND whether they signed compromise agreements with gagging clauses. As of today, despite several assurances, Wirral have not
responded to the following FoI request and are many months overdue and again in breach of the FOI Act:

http://www.whatdotheyknow.com/request/da...

Despite the fine words trotted out in Appendix S2 of the Anna Klonowski "Refresh and Renew" Supplementary Report, the Wirral public have still yet to see any sign of accountability or a reckoning towards the as yet anonymous employees who perpetrated this sustained abuse against learning disabled people over a period of several years - which totalled over £700,000 plundered from their bank accounts.

There were also abuses of power, as found by two independent
investigations – but which remain unpunished, and an admission to learning disabled abuse here (See 7.1):

http://democracy.wirral.gov.uk/mgConvert...

Please provide all information you have which is connected to the departure of Mr Norman. This will relate to meetings, hearings, discussions, reports (including the report of Mr Richard Penn, the external investigator), and may be stored in the form of recorded minutes, verbatim and non-verbatim notes, emails, letters, memos, aide memoirs, documents, whether electronically or manually stored.

Please confirm and provide full details of the existence of any payments made to Mr Norman in relation to his departure. This will include precise amounts, the method of payment and the budget from which the payment was / is to be derived.

Please confirm details of the existence of any "compromise
agreement" or "confidentiality agreement" or “compromise contract”or "confidentiality contract" agreed and signed by Mr Coleman in relation to this departure or to his involvement in abuse or malpractice. This will include confirmation and description of any 'gagging clauses' and whether a positive / neutral / negative reference was provided regarding potential future employment.

In light of the [strangely] recent discovery by Wirral’s NOW EX-Chief Internal Auditor David Garry that “compromise contracts” were NOT being recorded but were being arranged behind closed doors, beyond any councillor scrutiny and beyond view of the public:

http://democracy.wirral.gov.uk/documents...

…please describe the exact process that was followed and supply the documents, reports, aide memoirs, notes, etc. that were created and recorded as part of the NEW process. Please take a deep breath before you do this, and ponder your overriding duty to act not out of self-interest, but fairly and impartially in the unbending service of us the public.

Please provide the names and addresses of all organisations / bodies involved in providing legal advice to Mr Norman. Please also provide details of meetings which occurred including times, dates and matters discussed.

Please confirm the details of any disciplinary charges either planned or levelled against Mr Norman in relation to any failures / malpractice / abuse which may or may not have brought about his departure from the Council.

If Mr Norman was provided with a "clean bill of health" regarding his time served at the council, please provide a copy of this / these document(s).

Please redact documents as you see fit, and remove any personally sensitive information in accordance with the requirements of the Data Protection Act.”

Please be mindful that as Mr Norman was the "Director of Law" and fulfilling that role, and paid / rewarded in line
with that role as part of these as yet secret arrangements, I am making you aware that case law within this area, combined with the legitimate and compelling public interest demands a far greater degree of openness.

As yet, I can find no evidence either in the press or on the Council website that this departure has received ANY democratic scrutiny by elected officials. Please confirm which meetings took place. Presumably there will have been at least one gathering called to scrutinise the so-called "compromise contract" that was drawn up and agreed.

Please also confirm whether the July suspension of Mr Norman and his two colleagues was carried out correctly i.e. it followed to the letter the guidance laid out within the Local Government Act 2000 and was mindful of the extra protection that is afforded to Directors of Law and Finance.

If Mr Michael Frater, local gov troubleshooter [now departed] made an error in suspending the two officers Norman and Coleman, and this has "blown up in his face" and potentially caused a situation in which we may find ourselves today i.e. shot in the foot; compromised; picking up the pieces, and paying off officers who have had their employment rights breached, then please confirm it if true, and release all the documents which relate to it,

Yours faithfully,

Paul Cardin

Dear Wirral Metropolitan Borough Council,

I have checked and a number of the links are not working in the last message. Here they are in the same order, and hopefully working this time:

1.OK.

2.http://www.whatdotheyknow.com/request/ag...

3.http://www.whatdotheyknow.com/request/da...

4.http://democracy.wirral.gov.uk/mgConvert...

5.http://democracy.wirral.gov.uk/documents...

Yours faithfully,

Paul Cardin

Dear Wirral Metropolitan 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 Metropolitan Borough Council's handling of my FOI request 'Unscrutinised Machinations, Permitting Suspended Director of Law to Depart Wirral Council'.

You are again in breach of statutory law. Please address this request in accordance with your statutory obligations.

A full history of my FOI request and all correspondence is available on the Internet at this address:
http://www.whatdotheyknow.com/request/un...

Yours faithfully,

Paul Cardin

Paul Cardin left an annotation ()

Here is a link to an article, setting out what I feel is the background and true motivation behind Wirral Council's very poor response times.

Notably, there are just 2 people dedicated to Freedom of Information and Data at this council (one professional and one admin assistant) - which says it all really.

http://easyvirtualassistance.wordpress.c...

Paul Cardin left an annotation ()

Corrin, Jane, Wirral Metropolitan Borough Council

Dear Mr Cardin,

 

I refer to your request for information, contained in your email of 17
October 2012. Your request was as follows:-

 

Unscrutinised Machinations, Permitting Suspended Director of Law to Depart
Wirral Council

 

Dear Wirral Metropolitan Borough Council,

On 17th October 2012, it became public knowledge that suspended Director
of Law, Bill Norman had received permission, as part of a secret,
protected and apparently unscrutinised process, concealed from public
view, to leave his employment with Wirral Council. According to the
press, this is believed to follow an external investigation stating that
he had "no case to answer" and to involve the granting of a package
approaching £150,000 in public money. 
[1]http://www.wirralglobe.co.uk/news/999130...

Above is a link to a news story published today in the Wirral Globe,
which reported this matter. Once again, the comments beneath the article
indicate the strength of feeling amongst a
still outraged public. The former CEO, Jim Wilkie, who himself is the
subject of another freedom of information request, currently breaching
the FOI Act:
[2]http://www.whatdotheyknow.com/request/ag...

...admitted to years of learning disabled abuse by the council This was
followed by the departure of two senior social services officers in
January of this year. It is still not clear whether
these two individuals WERE leaving as a result of their involvement in
abuse AND whether they signed compromise agreements with gagging clauses.
As of today, despite several assurances, Wirral have not responded to the
following FoI request and are many months overdue and again in breach of
the FOI Act:

[3]http://www.whatdotheyknow.com/request/da...

Despite the fine words trotted out in Appendix S2 of the Anna Klonowski
"Refresh and Renew" Supplementary Report, the Wirral public have still
yet to see any sign of accountability or a
reckoning towards the as yet anonymous employees who perpetrated this
sustained abuse against learning disabled people over a period of several
years - which totalled over £700,000 plundered from their bank accounts.
There were also abuses of power, as found by two independent
investigations – but which remain unpunished, and an admission to
learning disabled abuse here (See 7.1):

[4]http://democracy.wirral.gov.uk/mgConvert...

Please provide all information you have which is connected to the
departure of Mr. Norman. This will relate to meetings, hearings,
discussions, reports (including the report of Mr Richard Penn, the
external investigator), and may be stored in the form of recorded
minutes, verbatim and non-verbatim notes, emails, letters, memos, aide
memoirs, documents, whether electronically or manually stored.

Please confirm and provide full details of the existence of any payments
made to Mr Norman in relation to his departure. This will include precise
amounts, the method of payment and the budget from which the payment was
/ is to be derived.

Please confirm details of the existence of any "compromise agreement" or
"confidentiality agreement" or “compromise contract”or "confidentiality
contract" agreed and signed by Mr
Coleman in relation to this departure or to his involvement in abuse or
malpractice. This will include confirmation and description of any
'gagging clauses' and whether a positive /
neutral / negative reference was provided regarding potential future
employment.

In light of the [strangely] recent discovery by Wirral’s NOW EX-Chief
Internal Auditor David Garry that “compromise contracts” were NOT being
recorded but were being arranged behind closed doors, beyond any
councillor scrutiny and beyond view of the public:

[5]http://democracy.wirral.gov.uk/documents...

…please describe the exact process that was followed and supply the
documents, reports, aide memoirs, notes, etc. that were created and
recorded as part of the NEW process. Please take a deep breath before you
do this, and ponder your overriding duty to act not out of self-interest,
but fairly and impartially in the unbending service of us the public.

Please provide the names and addresses of all organisations bodies
involved in providing legal advice to Mr Norman. Please also provide
details of meetings which occurred including times, dates and matters
discussed.

Please confirm the details of any disciplinary charges either planned or
levelled against Mr Norman in relation to any failures /malpractice /
abuse which may or may not have brought about his
departure from the Council.

If Mr Norman was provided with a "clean bill of health" regarding his
time served at the council, please provide a copy of this /these
document(s).

Please redact documents as you see fit, and remove any personally
sensitive information in accordance with the requirements of the Data
Protection Act.”

Please be mindful that as Mr Norman was the "Director of Law" and
fulfilling that role, and paid / rewarded in line with that role as part
of these as yet secret arrangements, I am
making you aware that case law within this area, combined with the
legitimate and compelling public interest demands a far greater degree of
openness.

As yet, I can find no evidence either in the press or on the Council
website that this departure has received ANY democratic scrutiny by
elected officials. Please confirm which meetings took
place. Presumably there will have been at least one gathering called to
scrutinise the so-called "compromise contract" that was drawn up and
agreed.

Please also confirm whether the July suspension of Mr Norman and his two
colleagues was carried out correctly i.e. it followed to the letter the
guidance laid out within the Local Government Act 2000 and was mindful of
the extra protection that is afforded to Directors of Law and Finance.

If Mr Michael Frater, local gov troubleshooter [now departed] made an
error in suspending the two officers Norman and Coleman, and this has
"blown up in his face" and potentially caused a situation in which we may
find ourselves today i.e. shot in the foot; compromised; picking up the
pieces, and paying off officers who have had their employment rights
breached, then please confirm it if true, and release all the documents
which relate to it,

 

The Council did not respond to your original request and on 14 December
2012, you  requested an internal review. A public authority is not obliged
to comply with a request for information if the request is vexatious.
(Section 14 (1) of the Freedom of Information Act,2000)

I am refusing your request for information,  as set out in your email of
17 October 2012, on the basis that your request is vexatious.

 

The Information Commissioner issued new guidance, Version 5 ,  in June
2012, “When can a request be considered vexatious or repeated?” On 28
January 2013, Mr Nicholas Wikely, Judge of the Upper Tribunal , issued his
decision in the case Information Commissioner V. Devon County Council and
Dransfield {2012} UKUT 440. This case decided that the public authority
had been entitled to rely on Section 14 (1) and gave a detailed analysis
of section 14 (1) of the Freedom of Information Act 2000. I have had
particular regard to this case in reaching my decision and also to an
earlier case, from the then information Tribunal, Coggins v information
Commissioner (EA/2007/0130)

 

Paragraph 28 of the Information Tribunal decision in Coggins stated “The
number of FOIA requests, the amount of correspondence and haranguing tone
of the correspondence indicated that the appellant was behaving in an
obsessive manner. It was apparent that this would, over the relevant
period, have caused a significant administrative burden on the Council”.
Your request dated 14 October 2012 makes reference to the departure of two
other senior officers from the Council in January 2012 in a tone which I
consider to be haranguing , and which has already been the subject of a
separate FOIA request by yourself, and involved a decision notice being
issued by the Information Commissioner.

In Dransfield ,Judge Wikely considered that it was relevant  to have
regard to a  history of the  FOIA requests made by the requester  “The
present or future burden on the public authority may be inextricably
linked with the previous course of dealings.” (Paragraph 29)  I consider
that the administrative burden placed on the Council by your request of 14
October 2012, which makes reference to matters which have already been the
subject of previous requests from yourself, is manifestly unreasonable and
a factor in considering your request vexatious

 

Judge Wilkely  stated that “vexatiousness may be evidenced by obsessive
conduct that harasses staff, uses intemperate language, …or is any other
respects extremely offensive”. I consider that in your request you have
used intemperate language in connection with the departure of  a former
senior officer of the Council, and that the overall tone of your request
is offensive , having regard to the haranguing tone of the request.-eg “
Unscrutinised machinations, Please take a deep breath before you do this”.
Having regard to your request as a whole, I consider that it has “ the
attributes of manifest unreasonableness, irresponsibility “and, having
regard to your previous dealings with the Council ,” the lack of
proportionality that typically characterise vexatious requests” (Paragraph
45 of the Dransfield decision)

 

I have also had regard to Paragraph 34 of Judge Wikeley ‘s judgment that
“the motive of the requester may well be a relevant and indeed significant
factor in assessing whether the request itself is vexatious.” Judge Wikely
refers to “what may seem an entirely reasonable and benign request may be
found to be vexatious in the wider context of the course of dealings
between the individual and the relevant public authority”. I have had
regard to the course of dealings between yourself and the Council, One of
the criteria referred to by the Information Commissioner in considering
whether a request can be vexatious is “Can the request fairly be seen as
obsessive?” In the case referred to, Judge Wikely considered that the
First Tier Tribunal “had failed to consider the question of whether the
request was vexatious in the round” I consider that your request is
sufficiently linked to previous course of dealings with the Council in
respect of requests relating to compromise agreements in respect of this
Council.I consider that the volume and frequency of correspondence
received from yourself concerning compromise agreements at this Council
can be fairly characterised as obsessive.

 

Having carried out an overall balancing exercise with respect to the
factors mentioned above,I consider that  your request for information is
vexatious and that  the Council is not obliged to comply with your request
for information  under Section 14 (1) of the Freedom of Information Act
2000. I have treated this response as an internal review.

 

If you are dissatisfied with this response to your request for
information, you have the right to complain to the Information
Commissioner. The address is the Information Commissioner’s Office,

Wycliffe House,

Water Lane,

Wilmslow,

Cheshire SK9 5AF

[6]www.ico.gov.uk

 

Tel -0303 123 113

 

Sent on Behalf of

 

Rosemary Lyon,

Solicitor,

Legal and Member Services

Transformation and Resources

Wirral Council

show quoted sections

References

Visible links
1. http://www.wirralglobe.co.uk/news/999130...
2. http://www.whatdotheyknow.com/request/ag
3. http://www.whatdotheyknow.com/request/da
4. http://democracy.wirral.gov.uk/mgConvert
5. http://democracy.wirral.gov.uk/documents
6. http://www.ico.gov.uk/
http://www.ico.gov.uk/

Paul Cardin left an annotation ()

Appealed to the ICO in the following terms on 19th June 2013 (this has been updated in places (today) e.g. the amount of public money used to pay off and protect abusing staff has now topped £1 million:

Paul Cardin
My defence against Wirral Council S.14 ‘Vexatious’ claim.

I believe there is plenty of evidence to suggest that Wirral Council are struggling to reach a working understanding of the complex set of provisions within the Freedom of Information Act; provisions which exist to help requester and data controller alike.

The first item of note is Wirral Council's dubious status as the only council in the land currently being monitored by the Information Commissioner's Office. This is their second appearance on the list of monitored councils. Although first time around, 18 fellow councils used the experience to look inward, examine their performance and 'clean up their act', Wirral Council did not - which resulted in them making a second appearance.

Second is this recent negative comment before a Parliamentary Committee,

http://wirralinittogether.wordpress.com/...

...directly placing "Wirral Council" in a negative light - by the Information Commissioner himself, Christopher Graham.

Third is a link to a Wirral Council generated report entitled "Freedom of Information (FOI) Requests", which is a breakdown of FoI requests received between 2009 and 2010. This was written by later to be suspended and retired ex-Director of Finance Ian Coleman.

http://wirralinittogether.wordpress.com/...

http://democracy.wirral.gov.uk/mgConvert...

Point 2.6 refers to "a requestor who had been deemed as vexatious". It is impossible for a requestor to be deemed 'vexatious' under the Act (and unhelpful to have branded an unknown number of people (making 106 requests over a 2 year period) in this way. It is only possible for the request itself to be deemed 'vexatious'.

Fourth is a link to a report to councillors from Autumn 2012, written by Head of IT Geoff Paterson:
http://democracy.wirral.gov.uk/documents...

Worryingly, Mr Paterson has set great store by a kind of 'rogues gallery' of FoI requesters - a local top ten. The thrust of the report appears to be to absolve the council of responsibility, and to shift the 'blame' across to ten members of the local public, who've apparently been egged on by articles in the local press. This indicates a negative culture on the part of the data controller, and a tendency to 'accuse' outwardly rather than look inward. With the lack of accountability, this culture continues to dominate despite Klonowski.

A far more in-depth analysis of Mr Paterson's reasoning is carried out here:

http://wirralinittogether.wordpress.com/...

Fifth is Wirral Council's implication that I am somehow 'obsessed' in the area of compromise agreements. To quote from their response:
“I consider that the volume and frequency of correspondence received from yourself concerning compromise agreements can be fairly characterised as obsessive”

Judge Wikely considered that the First Tier Tribunal “had failed to consider the question of whether the [Dransfield] request was vexatious in the round”.

For wider context, I have a very strong interest in compromise agreements and the gagging clauses often used within them (as do many NHS people who are now free to speak out about their poor treatment under these clauses in the past). My strong interest is best reflected here, in a survey of 345 English councils (including Wirral) which aimed to find total figures for compromise agreements over a six year period. The impartial observer, when following these links, will note that the research was dedicated, methodical, courteous, and was conducted in a businesslike manner over a period of about 8 months. I'd suggest that my alleged 'obsession' has been wide-ranging, and has never been restricted to targetting or, to use the Wirral solicitor's word..... 'haranguing' Wirral Council alone.

Sixth is this recent accidental Wirral Council leak to the WhatDoTheyKnow website...

https://www.whatdotheyknow.com/request/1...

which appears to show FoI requests being sent through a kind of 'screening' process before being released to the public. This practice, which I would suggest amounts to direct manipulation, appears to involve the Head of Law, Surjit Tour and the Media Head, Emma Degg – whose primary role is to protect and further the reputation of the council. In the light of this, I can't rule out the possibility that there are more people than one involved in labelling my "David Garry" request as 'vexatious'.

Seventh is the important discovery I made in September 2012 (not reported in any of the local media) that Wirral Council were NOT recording their compromise agreements in a way which could be regarded as safe, secure and showing good public stewardship. In fact the council themselves reported in this document that in the area of compromise agreements:

http://democracy.wirral.gov.uk/documents...

“Control is generally weak leaving the system open to significant error or abuse, and/or significant non compliance with basic controls leaves the system open to error or abuse. (sic)”

Seen against the backdrop of ongoing failures in governance, bullying and previous abuses of power (Martin Smith report) I found this to be alarming and it is probably the main reason why I have had to show persistence and vigilance in requesting details around compromise agreements for departing senior employees.

Despite the backdrop of historical failure, I was left shaking my head in disbelief upon discovering that the council's internal systems were so inadequate and 'full of holes'.

Dransfield v ICO. Important section of Devon County Council case (not mentioned by Wirral Council solicitor):

"•His repeated entry of school premises to assert their lack of safety, from which premises he was subsequently banned.
•His aggressive and harassing tone in correspondence.
•The fact there was no significant public interest in disclosure of the requested information."

I believe Wirral Council are mistaken in aligning my FoI requests with the Dransfield case. I have never engaged in anything which even approximates to this. In fact I'm a school governor at a local nursery school, and have been for some years. When under threat of closure, I did my utmost to keep our facility open against the wishes of senior Wirral Council officers - and won a temporary reprieve.

With Wirral Council being found to be a corporately bullying employer, abusive of power (M Smith report); also abusive of the disabled people under its care, failing in central governance, and having 'abnormal' and 'unscrutinised machinations' (A Klonowski report), unlike the quoted case above, a strong and growing public interest has built into how it now applies 'accountability' and seeks improvement.

However, rather than securing a proper reckoning against problem people, the council has handed across a running total of £1 million (plus) in large pay offs, possibly using local people's council tax money, and stifled transparency through the use of compromise agreements containing suspected gagging clauses. This may even have allowed abuse to carry on unchecked - because recipients of the gagging clauses are prevented by law from talking about this to potential future employers.

This has been interpreted as a continuing failure by many local people, and has stoked the public interest to a very high level.

If Wirral Council DO regard my conduct in my FoI requests as, to quote Rosemary Lyon 'obsessive', they have never made any attempt to remove me from my school governor role. I therefore believe their desire to label my request as 'vexatious' is ill-advised, without substance, not genuinely held, and indicates to me perhaps a wish to conceal something which may in the long run prove controversial or even 'explosive'. David Garry was connected very closely to the following scandal, which is now being followed with some interest in the local media:

http://www.liverpooldailypost.co.uk/news...

I also have a copy of a positive work reference from the year 2003 (attached), which recommended me highly. This was provided by my then employer Wirral Council to my then new employer, W S Atkins. I'd worked for the council for 7 years, gained promotion twice, but resigned after becoming a whistleblower. Wirral Council brought gross misconduct charges against me which were ultimately proven to be trumped up and without foundation. This reference makes no mention of any 'obsessive' character traits or any 'obsessive' qualities to the work I produced.

I would hope and trust that the 'vexatious' allegation against the above request, 10 years on, is not connected in any way to these earlier events.

Finally, the area of compromise agreements and gagging clauses is a very interesting one - and one which is currently at the top of the news. Even when the issue was not in the headlines, I was conducting a full survey of virtually ALL English councils. This took in 345 separate local authorities.

Rather than being 'obsessive', I was persistent and vigilant in this work. In fact, the qualities that Wirral Council describes in my 2003 work reference were brought fully to bear and the results can be seen, carefully and methodically presented at the following location:

http://wirralinittogether.wordpress.com/...

With gagging clauses being 'banned' (again) in the NHS, I am hopeful that this research will shine a light into a dark corner, and that the public will get a better perspective on the growing use of public money to fund compromise agreements (and gagging clauses) within Local Government.

Recently, I have had a number of contacts from interested national journalists, who say they have seen much value and potential in the work I've conducted.

The following headlining story appeared on the front page of the Daily Telegraph on 3rd April 2013. The story is massively in the public interest and is based upon the research I carried out in the area of Local Authority compromise agreements and gagging clauses, drawn up in circumstances of dispute – which started in January 2011 and sought figures for between 2005 and 2010.

http://www.telegraph.co.uk/news/9967901/...

My success here reflects the qualities that were highlighted in the character reference that Wirral Borough Council themselves provided to me when I left their employment after blowing the whistle on impropriety in 2003.

Paul Cardin left an annotation ()

Further information provided to the ICO prior to the 4th October 2013 deadline.

Why my FOI requests are NOT "vexatious".

Dear Case Officer,

Further information has entered the public domain which raises yet more questions about Wirral Council’s approach to the provision of public information.

You may be familiar with the finer detail as it originates from your own organisation and refers to the ICO announcement of a regulatory response to the findings following the 3 month monitoring period of Wirral Council (their second one), undertaken between January and March 2013.

The ICO stated that despite a small improvement in response times, 75% of replies still breached the 20 working day time limit during the monitoring period. The ICO felt that it did not warrant enforcement action on this occasion, but also that they had no option but to require the council to sign an undertaking stating the need to step up their commitment to the legal obligations laid out under the FOI Act.

Please add this further evidence of ongoing failure to the extensive information that I’ve provided to your organisation over the last few months, since the struggling data controller labelled my David Garry and Bill Norman FOI requests as “vexatious”,

As my deadline for providing further information has not yet been reached (4th October 2013), and after once again examining the ICO guidance on Vexatious Requests

http://www.ico.org.uk/for_organisations/...

... I would like to set out some further thoughts on these issues, as follows. Please accept the following information in conjunction with the evidence and information I have previously provided:

With regard to page 26 of the ICO guidance, under the heading, “Allow the requester an opportunity to change their behaviour”, I’ve noticed that points 104 and 105 have not been explored or followed by the local authority. Point 106 then advises the data controller to “focus on the impact of the requests rather than the behaviour of the requester himself”. “Labelling a requester with terms such as ‘obsessive’, ‘unreasonable’ or ‘aggressive’ may only serve to worsen relations....”, however in this case, I was characterised as “obsessive” by Wirral Council solicitor Rosemary Lyon, as follows:

“I consider that the volume and frequency of correspondence received from yourself concerning
compromise agreements at this council can be fairly characterised as obsessive”

According to the ICO guidance, labels such as the above risk worsening relations between the respective parties and risk causing further disputes.

As Wirral Council had not followed the carefully laid out ICO advice under “Allow the requester an opportunity to change their behaviour”, and this being their second time of calling upon Section 14 with regard to my FoI requests, I believe they were incautious, inappropriate and possibly going against the spirit of the Act by resorting to the Section 14 “vexatious request” exemption.

Section 108 advises the authority to refer the requester to the ICO’s ‘for the public’ webpages. But once again, Wirral Council did not follow this advice, prior to resorting to Section 14 of the Act.

Wirral Council did not issue their refusal notice within 20 working days. The request was lodged in October 2012. The council’s Section 14 exemption arrived 8 months later in June 2013, following an internal review. One would have assumed that the request would have been regarded as vexatious before the internal review was carried out (which was also not done within 20 working days).

On viewing point 126, it’s clear that having failed to keep to the 20 working day time limit and to answer the request in time, Wirral Council are therefore not permitted to take into account anything that happens within the period in which it is dealing with the request. I trust you will therefore discard any material submitted by Wirral Council that falls within this period.

Under Justified Persistence on page 35, the following statement appears in response to a request characterised by the authority as in part ‘obsessive’:

“…The dogged pursuit of an investigation should not lightly be characterised as an obsessive campaign of harassment.”

I would finish this email by saying that my pursuit of important information has been dogged and persistent. It would be a mistake to characterise this as ‘obsessive’. I believe the front page headline, based on my research on compromise agreements and ‘confidentiality clauses’, in The Daily Telegraph of April 3rd 2013 speaks for itself. I made 345 Freedom of Information requests in order to highlight a subject which has now taken on national importance, has been picked up by the National Audit Office and which is the matter under discussion in a forthcoming Public Accounts Committee in September 2013.

To have one of my 400+ FoI requests successfully labelled as “vexatious” by a council which has been forced to admit that it abused learning disabled people; was found by an external investigator to have corporately bullied a whistleblower, and which due to its very poor performance, was the only council in the land to be monitored by the ICO (for the 2nd time) between January and March this year would be perplexing to say the least.

Please acknowledge receipt of this email and please confirm that you are accepting this information and adding it to my defence,

Best regards,

Paul Cardin

InfoMgr, FinDMT, Wirral Metropolitan Borough Council

2 Attachments

Good Afternoon

 

Please see response provided below:

 

 

 

Dear Mr Cardin,

Case Reference Number FS50502035

 

I have revisited your request for information ,in connection with your
complaint to  the Information Commissioner’s office. I refer to your
request for information, contained in your email of 17 October 2012. This
is the Council’s amended response to your request which was as follows:-

 

Unscrutinised Machinations, Permitting Suspended Director of Law to Depart
Wirral Council

 

Dear Wirral Metropolitan Borough Council,

On 17th October 2012, it became public knowledge that suspended
Director of Law, Bill Norman had received
permission, as part of a secret, protected and apparently
unscrutinised process, concealed from public
view, to leave his employment with Wirral Council. According to the
press, this is believed to follow an external investigation stating
that he had "no case to answer" and to involve the granting of a
package approaching £150,000 in public money.

[1]http://www.wirralglobe.co.uk/news/999130...

Above is a link to a news story published today in the
Wirral Globe, which reported this matter. Once again, the comments
beneath the article indicate the strength of feeling amongst a
still outraged public.

The former CEO, Jim Wilkie, who himself is the subject of another
freedom of information request, currently breaching the FOI Act:

[2]http://www.whatdotheyknow.com/request/ag...

...admitted to years of learning disabled abuse by the council.
This was followed by the departure of two senior social services
officers in January of this year. It is still not clear whether
these two individuals WERE leaving as a result of their involvement
in abuse AND whether they signed compromise agreements with gagging
clauses. As of today, despite several assurances, Wirral have not
responded to the following FoI request and are many months overdue
and again in breach of the FOI Act:

[3]http://www.whatdotheyknow.com/request/da...

Despite the fine words trotted out in Appendix S2 of the Anna
Klonowski "Refresh and Renew" Supplementary Report, the Wirral
public have still yet to see any sign of accountability or a
reckoning towards the as yet anonymous employees who perpetrated
this sustained abuse against learning disabled people over a period
of several years - which totalled over £700,000 plundered from
their bank accounts.

There were also abuses of power, as found by two independent
investigations – but which remain unpunished, and an admission to
learning disabled abuse here (See 7.1):

[4]http://democracy.wirral.gov.uk/mgConvert...

Please provide all information you have which is connected to the
departure of Mr Norman. This will relate to meetings, hearings,
discussions, reports (including the report of Mr Richard Penn, the
external investigator), and may be stored in the form of recorded
minutes, verbatim and non-verbatim notes, emails, letters, memos,
aide memoirs, documents, whether electronically or manually stored.

Please confirm and provide full details of the existence of any
payments made to Mr Norman in relation to his departure. This will
include precise amounts, the method of payment and the budget from
which the payment was / is to be derived.

Please confirm details of the existence of any "compromise
agreement" or "confidentiality agreement" or “compromise
contract”or "confidentiality contract" agreed and signed by Mr
Coleman in relation to this departure or to his involvement in
abuse or malpractice. This will include confirmation and
description of any 'gagging clauses' and whether a positive /
neutral / negative reference was provided regarding potential
future employment.

In light of the [strangely] recent discovery by Wirral’s NOW
EX-Chief Internal Auditor David Garry that “compromise contracts”
were NOT being recorded but were being arranged behind closed
doors, beyond any councillor scrutiny and beyond view of the
public:

[5]http://democracy.wirral.gov.uk/documents...

…please describe the exact process that was followed and supply the
documents, reports, aide memoirs, notes, etc. that were created and
recorded as part of the NEW process. Please take a deep breath
before you do this, and ponder your overriding duty to act not out
of self-interest, but fairly and impartially in the unbending
service of us the public.

Please provide the names and addresses of all organisations /
bodies involved in providing legal advice to Mr Norman. Please also
provide details of meetings which occurred including times, dates
and matters discussed.

Please confirm the details of any disciplinary charges either
planned or levelled against Mr Norman in relation to any failures /
malpractice / abuse which may or may not have brought about his
departure from the Council.

If Mr Norman was provided with a "clean bill of health" regarding
his time served at the council, please provide a copy of this /
these document(s).

Please redact documents as you see fit, and remove any personally
sensitive information in accordance with the requirements of the
Data Protection Act.”

Please be mindful that as Mr Norman was the "Director of Law" and
fulfilling that role, and paid / rewarded in line
with that role as part of these as yet secret arrangements, I am
making you aware that case law within this area, combined with the
legitimate and compelling public interest demands a far greater
degree of openness.

As yet, I can find no evidence either in the press or on the
Council website that this departure has received ANY democratic
scrutiny by elected officials. Please confirm which meetings took
place. Presumably there will have been at least one gathering
called to scrutinise the so-called "compromise contract" that was
drawn up and agreed.

Please also confirm whether the July suspension of Mr Norman and
his two colleagues was carried out correctly i.e. it followed to
the letter the guidance laid out within the Local Government Act
2000 and was mindful of the extra protection that is afforded to
Directors of Law and Finance.

If Mr Michael Frater, local gov troubleshooter [now departed] made
an error in suspending the two officers Norman and Coleman, and
this has "blown up in his face" and potentially caused a situation
in which we may find ourselves today i.e. shot in the foot;
compromised; picking up the pieces, and paying off officers who
have had their employment rights breached, then please confirm it
if true, and release all the documents which relate to it,

 

 

I can confirm the process in respect of the departure of Mr Norman was
formally scrutinised by the Employment and Appointments Sub –Committee
(Compromise Contacts) which met on 20 September 2012. I enclose the Report
considered by this Committee. I also enclose the Appendix referred to in
that report . This information relates to Mr Norman’s departure from the
Council on the grounds of redundancy. A total termination  payment of  £
146,416 was made to Mr Norman as detailed in the Appendix and I confirm
that he signed a Compromise Agreement . No disciplinary  charges were
levelled  in respect of Mr Norman.

 

I consider that other information which you have requested in respect of
the departure of Mr Norman,including information relating to his
suspension,is exempt information under Section 40 (2) of the Freedom of
Information Act 2000, in that you are asking for information which is
personal data, in respect of which you are not the data subject. I
consider that the disclosure of the requested information would contravene
the first data protection principle, that personal data shall be processed
fairly and lawfully, and shall not be processed unless at least one of the
conditions in Schedule 2 of the Data Protection Act 1998 is met. I
consider disclosure of the requested information would have an unjustified
adverse effect on the individual, Mr Bill Norman, being the former
Director of Law, HR and Asset Management. Mr Norman would have had a
reasonable expectation upon the termination of his employment  on 30
September 2012 ,by reason of redundancy , that his personal data, apart
from the cost to public funds of that termination , would remain
confidential.

 

I do not consider that any of the conditions in Schedule 2 would be met
and particularly Condition 6 of Schedule 2 in that the processing would be
unwarranted by reason of prejudice to the rights and freedoms or
legitimate interests of the data subject.  I do not consider that such
processing would be necessary for the purposes of legitimate interests
pursued by yourself as a third party, being a member of the public. I have
considered whether there is a legitimate public interest in disclosure and
balanced this against the rights of the former Director of Law,HR and
Asset Management , Mr Bill Norman . I consider that disclosure of the
information requested would cause an unwarranted interference with a
former employee’s rights, which outweighs any legitimate interests pursued
by yourself as a third party .  I consider, as detailed above that the
first data protection principle would be breached if the withheld
information was disclosed. Having regard to Mr Norman’s departure from the
Council in consequence of a restructure of the Chief Officers, and apart
from the information given above, I consider that the requested
information is personal information relating to that process. In those
circumstances, Mr Norman  has a very strong legitimate expectation that
his personal data would not be disclosed to a member of the public and I
consider that any such disclosure would be unfair and not a lawful
processing of his personal data. I do not consider that there is any
legitimate interest in a member of the public being given personal data
concerning Mr Norman’s departure from the Council apart from the Report
and Appendix of the meeting of 20 September 2012 enclosed above. I
consider that you, as a member of the public do not have a pressing social
need, which would require disclosure of other information. I consider that
your  legitimate interest as a member of the public has been met by your
having access to the Report considered by the Employment and Appointments
Sub Committee (Compromise Contracts) which gives details of the total
termination payment made to  Mr Norman ,who would have no expectation
,that his personal data, beyond what was available in the information
provided in open session at the meeting on 20 September 2012,would be
disclosed to any member of the public in response to a freedom of
information request.

 

 

I have had regard to relevant guidance from the Information Commissioners
office and relevant case law including the First Tier Tribunal case of

Gibson,  the Information Commission and Craven District Council. (
EA/2010/0095) . Paragraph 43 of that decision states:-

“We accept that there is a category of data - information that might
belong in a personnel file within the human resources department of a
public authority, … - that comes into existence whilst acting in one’s
professional capacity, which is nevertheless inherently private and would
attract a very strong expectation of privacy and protection from the
public gaze. “

Paragraph 53 provides :-

“we find that the legitimate interests of members of the public outweigh
the prejudice to the rights, freedoms or legitimate interests of the
ex-CEO only to the extent that the information concerns the use of public
funds “

 

I consider that it is also relevant to have regard to the consequences for
Mr Norman, if this information were disclosed. If the withheld information
were to be disclosed , I consider that this would  cause prejudice to his
rights and freedoms as the data subject  and  also as a former employee of
the Council and that the information already put into the public domain
will meet the needs of yourself as a  member of the public.

 

I. consider  that this is an absolute exemption and not subject to the
public interest test. I therefore confirm that the Council seeks to rely
on the exemption contained in Section 40(2) of the Freedom of Information
Act 2000. I am therefore refusing, in accordance with  Section 17 of the
Freedom of Information Act 2000, part of your request for information ,
relying on the exemption contained in Section 40(2)

 

You have the right to request  an internal review, which should be
addressed to the Information Manager, Wallasey Town Hall, Brighton Street,
Wallasey,  CH44 8ED,  email, [6][email address]. You also 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

[7]www.ico.gov.uk

 

Tel -0303 123 113

 

 

 

Yours sincerely

 

 

 

Surjit Tour

Head of Legal and Member Services,

Legal and Member Services,

Transformation and Resources,

Wirral Borough Council,

Brighton Street,

Wallasey,

CH44 8ED

 

 

 

show quoted sections

References

Visible links
1. http://www.wirralglobe.co.uk/news/999130...
http://www.wirralglobe.co.uk/news/999130...
2. http://www.whatdotheyknow.com/request/ag
http://www.whatdotheyknow.com/request/ag
3. http://www.whatdotheyknow.com/request/da
http://www.whatdotheyknow.com/request/da
4. http://democracy.wirral.gov.uk/mgConvert
http://democracy.wirral.gov.uk/mgConvert
5. http://democracy.wirral.gov.uk/documents
http://democracy.wirral.gov.uk/documents
6. mailto:[email address]
mailto:[email address]
7. http://www.ico.gov.uk/
http://www.ico.gov.uk/

Paul Cardin left an annotation ()

Wirral Council's SECOND hideously misconceived "vexatious request" rebuttal against me collapses around them.

TWO down... ONE to go...

Dear Wirral Metropolitan 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 Metropolitan Borough Council's handling of my FOI request 'Unscrutinised Machinations, Permitting Suspended Director of Law to Depart Wirral Council'.

Please state:

o whether a 'confidentiality clause' exists within Mr Norman's compromise agreement
o whether a 'gagging clause' exists within Mr Norman's compromise agreement
o what is the nature of the relevant gagging / confidentiality clause? i.e. does it prevent Mr Norman from referring to the existence of the agreement itself and / or just to the contents of
the agreement?

Please do not restrict your review to the above 3 examples alone.

Section 40 is not a 'blanket' exemption and cannot be engaged in order to cover ALL information which you as the data controller deem to be exempt from the legitimate and compelling public interest. With this, and the wider public interest in mind, please ask a senior person to internally review your treatment of this FoI request, keeping it in line with the relevant ICO guidance AND the Freedom of Information Act 2005.

I believe you have overstepped the mark by withholding information which is not covered by Section 40 of The Act.

I agree that there will be inherently private and personal information that belongs and resides in a personnel file, to which the public should not have access, however much of my request has been phrased to avoid this very particular personal information - and refers to information which falls within the wider public interest.

Once your review has been correctly completed, please then respond.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/u...

Yours faithfully,

Paul Cardin

Corrin, Jane, Wirral Metropolitan Borough Council

 

Good Afternoon,

 

I refer to your request for an internal review made on 30 November 2013 in
respect of the Council’s amended response to your request for information,
which was provided on 14 November 2014.  Your original request for
information was made on 17 October 2012, in respect of which you
complained to the Information Commissioner. I have copied the Council’s
response to your request for an internal review to the Information
Commissioner.

 

Your request for an internal review was as follows:-

 

 

Dear Wirral Metropolitan 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 Metropolitan Borough
Council's handling of my FOI request 'Unscrutinised
Machinations, Permitting Suspended Director of Law to Depart Wirral
Council'.

Please state:

o whether a 'confidentiality clause' exists within Mr Norman's compromise
agreement
o whether a 'gagging clause' exists within Mr Norman's compromise
agreement
o what is the nature of the relevant gagging / confidentiality clause?
i.e. does it prevent Mr Norman from referring to the existence of the
agreement itself and / or just to the contents of the agreement?

Please do not restrict your review to the above 3 examples alone.

Section 40 is not a 'blanket' exemption and cannot be engaged in order to
cover ALL information which you as the data controller
deem to be exempt from the legitimate and compelling public interest.
With this, and the wider public interest in mind, please
ask a senior person to internally review your treatment of this FoI
request, keeping it in line with the relevant ICO guidance AND the
Freedom of Information Act 2005.

I believe you have overstepped the mark by withholding information which
is not covered by Section 40 of The Act.

I agree that there will be inherently private and personal information
that belongs and resides in a personnel file, to which
the public should not have access, however much of my request has been
phrased to avoid this very particular personal information -
and refers to information which falls within the wider public interest.

Once your review has been correctly completed, please then respond.

A full history of my FOI request and all correspondence is available on
the Internet at this address:
[1]https://www.whatdotheyknow.com/request/u...

 

 

 

A confidentiality clause exists within Mr Norman’s compromise agreement.
There is no gagging clause within Mr Norman’s compromise agreement. You
have asked what is the nature of the relevant confidentiality clause.

 

I consider that the information which you have requested in respect of the
nature of the confidentiality clause in Mr Norman’s compromise agreement
is exempt information under Section 40 (2) of the Freedom of Information
Act 2000, in that you are asking for information which is personal data,
in respect of which you are not the data subject.

 

I consider that the disclosure of the requested information would
contravene the first data protection principle, that personal data shall
be processed fairly and lawfully, and shall not be processed unless at
least one of the conditions in Schedule 2 of the Data Protection Act 1998
is met.

 

I consider disclosure of the requested information would have an
unjustified adverse effect on the individual, Mr Bill Norman, being the
former Director of Law, HR and Asset Management.  Mr Norman would have had
a reasonable expectation upon the termination of his employment  on 30
September 2012, by reason of redundancy, that his personal data, apart
from the cost to public funds of that termination, would remain
confidential.  I consider that the confidentiality clause is personal
data relating to Mr Norman, which if disclosed could lead to potential
proceedings for breach of contract.

 

I do not consider that any of the conditions in Schedule 2 would be met
and particularly Condition 6 of Schedule 2 in that the processing would be
unwarranted by reason of prejudice to the rights and freedoms or
legitimate interests of the data subject.  I do not consider that such
processing would be necessary for the purposes of legitimate interests
pursued by yourself as a third party, being a member of the public.

 

I have considered whether there is a legitimate public interest in
disclosure and balanced this against the rights of the former Director of
Law, HR and Asset Management, Mr Bill Norman. I consider that disclosure
of the nature of the confidentiality clause would cause an unwarranted
interference with a former employee’s rights, which outweighs any
legitimate interests pursued by yourself as a third party .  I consider,
as detailed above that the first data protection principle would be
breached if the withheld information was disclosed.

 

I consider that the exemption contained in Section 40 (2) of the Freedom
of Information Act 2000 which was applied in the amended response provided
on 14 November 2013, is still appropriate. Having regard to Mr Norman’s
departure from the Council in consequence of a restructure of the Chief
Officers, I consider that the requested information is personal
information relating to that process. In those circumstances, Mr Norman
has a very strong legitimate expectation that his personal data would not
be disclosed to a member of the public and I consider that any such
disclosure would be unfair and not a lawful processing of his personal
data. I do not consider that there is any legitimate interest in a member
of the public being given personal data concerning Mr Norman’s departure
from the Council apart from the Report and Appendix of the meeting of 20
September 2012 (copies of which have been provided to you previously).

 

I reconfirm that the process in respect of the departure of Mr Norman was
formally scrutinised by the Employment and Appointments Sub –Committee
(Compromise Contacts). This information relates to Mr Norman’s departure
from the Council on the grounds of redundancy. A total termination payment
of £146,416 was made to Mr Norman. I also reconfirm that he signed a
Compromise Agreement and that no disciplinary charges were levelled in
respect of Mr Norman.

 

I consider that you, as a member of the public do not have a pressing
social need, which would require disclosure of other information. I
consider that your  legitimate interest as a member of the public has been
met by your having access to the Report considered by the Employment and
Appointments Sub Committee (Compromise Contracts) which gives details of
the total termination payment made to  Mr Norman ,who would have no
expectation ,that his personal data, beyond what was available in the
information provided in open session at the meeting on 20 September
2012,would be disclosed to any member of the public in response to a
freedom of information request. I do not consider that the Council has
applied Section 40 (2) as a blanket exemption in respect of the
information requested.

 

The decision of the First Tier Tribunal case of Gibson, the Information
Commission and Craven District Council. (EA/2010/0095) stated as follows,

 

 “We accept that there is a category of data - information that might
belong in a personnel file within the human resources department of a
public authority, … - that comes into existence whilst acting in one’s
professional capacity, which is nevertheless inherently private and would
attract a very strong expectation of privacy and protection from the
public gaze. “ (Paragraph 43) and  “We find that the legitimate interests
of members of the public outweigh the prejudice to the rights, freedoms or
legitimate interests of the ex-CEO only to the extent that the information
concerns the use of public funds “ (Paragraph 53).

 

 

I consider that this is an absolute exemption and not subject to the
public interest test. I therefore confirm in this response to your request
for an internal review that the Council seeks to rely on the exemption
contained in Section 40(2) of the Freedom of Information Act 2000. I am
therefore refusing, in accordance with Section 17 of the Freedom of
Information Act 2000, part of your request for information, relying on the
exemption contained in Section 40(2).

 

 You have the right to complain further 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

 

Yours Sincerely

Jane Corrin

Information and Central Services Manager

Transformation and Resources

Wirral Council

 

show quoted sections

References

Visible links
1. https://www.whatdotheyknow.com/request/u...
2. blocked::http://www.ico.gov.uk/
http://www.ico.gov.uk/
http://www.ico.gov.uk/

ScarletPimpernel left an annotation ()

The rules of Wirral Council compromise agreements.

1st Rule You do not talk about COMPROMISE AGREEMENTS
2nd Rule You DO NOT talk about COMPROMiSE AGREEMENTS
3rd Rule If someone makes a FOI request ignore them.
4th Rule If they request an internal review, claim they're vexatious and their request is vexatious
5th Rule If they complain to ICO who disagrees with the vexatious reason given in trhe 4th Rule release what has already been published.
6th Rule If they request an internal review wait four and a half months then claim a section 40 exemption.
7th Rule If they complain to ICO again choose another exemption
8th Rule Repeat the above and tell the press you are "open and transparent"
9th Rule If ICO ask sign an undertaking but ask them if it can include a gagging clause too so no one will know about it. ;)

All the best,
J.B.

Paul Cardin left an annotation ()

10th rule - Block / screen / filter emails without even having the courtesy to tell the public you're doing it.

nigel hobro left an annotation ()

The email they blocked was from Mr Griffiths who does not wish to have his personal data rights protected by Surjit Tour or anyone else ! However a journalist pointed out to me that my emails were likewiuse filtered unbeknown to myself and without me doing anything more than providing data to Councillors- no mention of any tragedy or any irreverent comments ...just data mined from a database.

I recall Mr Tours warning to me

"to refrain from concatenating data nad officers where an unpleasant inference can be drawn" or summat to that effect.

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