#FoI request ~ for Compromise Agreements and "gagging clauses" – January 2011

Hello

This blog is based around Freedom of Information News, and also my own #FoI requests.  It will comment on recent events (no talk of zombies or alien invaders – that’s left to others), and will list and explore some of the requests I’ve made to public bodies through the www.whatdotheyknow.com website.

There are further categories, one of which will be dedicated to assisting people who may have ended up in dispute at their workplace.  More and more people are being made ill or are being suspended unfairly – which is often related to the foul, cruel and calculated behaviour of failing managers / directors, abusing the power placed in them by dysfunctional organisations.

I’ve been very busy since January 2011, after initially lodging an FoI request with 345 English councils.  This was based around compromise agreements (sometimes called confidentiality agreements).  These are the full and final settlements drawn up by organisations when working contracts come to an end, usually in controversial circumstances.  There’s more information on my website.  I believe it’s probably the first time WDTK has been used to gather bulk information in this area.

Over the first week of 2011, an identical FoI request was copied to each council, and consisted of two very precise questions:

  • As far as records go back, the annual figures for the total number of current employees / ex-employees 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 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

In most instances, the request was modified early on, to reduce the scope, and also to eliminate other reasons for departure, such as redundancy or TUPE situations.  To date (13th August 2011) 344 councils have responded.  The one outstanding is Wigan Borough Council, who as you will see if you follow the link, have found a number of reasons to drag their feet.

As for the remainder, 293 councils have provided full and frank responses, giving their total figures for the last 6 years.  145 responded within the 20 day time limit, but 148 didn’t, often taking a great deal longer.  The most delayed response (with the exception of Wigan) was West Lancashire District Council – 143 working days.  The quickest full response was 1 working day – step forward and collect the plaudits, Colchester Borough Council.  As for the “gagging clauses” question, more later.

Interim stats for compromise agreements (last 6 years)

Number of Councils approached: 345

Number of Councils responding positively: 293

Number of Appeals to Information Commissioner, following failed internal reviews: 51

Total number of Compromise Agreements declared across all councils: 4,398

Average number of Compromise Agreements declared across all councils: 15

Largest number of Compromise Agreements declared (Brighton & Hove Council): 123

Number of Councils making a NIL return (no compromise agreements used in dispute circumstances): 37

Interim stats for “gagging clauses”

Number of Councils declaring FoI / DP related gagging clauses: 2

Councils using the gag: Cheshire West and Chester Council / Brent Borough Council

I was the recipient of one of the above gagging clauses (within a compromise agreement) served by Cheshire West and Chester Council.  This prevented me from exercising my statutory querying rights for the best part of two years.  During this time I did not breach what I regard as an unlawful gag by approaching my former employer – a position later endorsed by my legal adviser.  To this day, I don’t know the identity of the Brent gagging clause recipient, but would be very interested to hear!  After writing to the Brent Council Leader, Ann John, it was explained to me that the recipient had made a nuisance of themselves, and pressurised staff.  Alarmingly, the council leader seemed not to have been made aware by her officers that a facility exists within the FoI Act allowing organisations to refuse ‘vexatious requests’.  Instead, Brent Borough Council opted out of their legal obligations regarding FoI and sought to impose a ‘ban’ on the potential revelation of certain information.  This ‘ban’ lasted for a full, and what could fairly be described as ‘vexatious’ three years.

Subsequent to this, and following extensive contact with Hugh Tomlinson QC, a legal case was prepared against Cheshire West and Chester Council, which subsided when the council backed down.  I’ve come to the conclusion that such gagging clauses, even though they seem to be used sparingly, are not lawful, and are brandished as a last resort, in order to potentially conceal serious malpractice or immoral activities.

The Information Commissioner’s Office have stated that they cannot sue for a breach of the Act unless one occurs i.e. a ‘banned’ individual makes an FoI or DPA request in defiance of their gagging clause.  Such an action may also be taken against their own legal advice (as it would have been in MY case (see above)).  The only conclusion a reasonable person would arrive at is that once such a ‘ban’ is enforced, it’s highly unlikely that the material being desperately protected by the public body enforcing it, would ever see the light of day.  The pressure comes from ALL sides to put up and shut up.  In other words, here is a loophole for public bodies to exploit, and full licence to drive a coach and horses through their own policies, procedures and FOI / DP obligations!

Currently, there are 51 appeals sitting with the Information Commissioner.  They’ve been in touch to explain that the most practical way forward is to select 6 cases and proceed with these.  This would be a kind of  ‘practice run’ for the remainder, which would then be better resolved at a later date.

Thank you for getting this far, and for your interest in these issues.  I do welcome your comments.  The compromise agreement / gagging clause requests still have some way to run.

Many councils make questionable public claims to openness and transparency.  From the 51 appeals, I’m hopeful that some more of the offending gags will be “shaken out”, exposing any further duplicity in the process.

As a taster of what’s to come, I’ve also made the following FoI requests of these organisations:



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Campaigner for open government. Wants senior public servants to be honest and courageous. It IS possible!
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2 Responses to #FoI request ~ for Compromise Agreements and "gagging clauses" – January 2011

  1. Paul who was your legal adviser?

    Any clause banning use of FoI within a compromise agreement, presumably attracting a financial penalty such as requiring repayment of the settlement if breached is almost certainly unenforceable.

    This is because it would be a ‘penalty clause’ and these are unenforceable. See this leagal opinion here

    http://www.11kbw.com/articles/docs/SimonDevonshirePenaltyClauses.pdf

    Such clauses are mostly used as an attempt to ensure confidentiality and I’m amazed that lawyers and union officials are still advising clients that they are enforceable.

  2. easyvirtualassistance says:

    Thanks Andy and cheers for the link. My legal adviser when signing the compromise agreement was a union solicitor working for Thornleys (no longer with us). His advice was “Either take what’s certain, on the table now or wait three months, and go for an uncertain outcome at the Employment Tribunal”. This advice was later endorsed by Collyer Bristow Solicitors in conjunction with Hugh Tomlinson QC.

    As you’ll be fully aware, unions (and ACAS for a COT3) all climb onto your back if you don’t sign the compromise agreement, then begin to turn the screw and apply their own brand of pressure in order to make you back down and conserve their limited resources. This is the point where countless union members are quietly dropped like a stone by a nameless apparatchik further up the hierarchy.

    To answer your point about penalty clauses, I’m in total agreement with you and the opinion in the link you sent. I only discovered such important opinions much later on, when my ban had been in place for many months. Unions, employers and the Law Society, seem to ignore this and are busily backing compromise agreements (including the clauses) because they’re all part of a burgeoning and self-serving ££vested interest. The only people to suffer in all this are those who have no option but to lose their livelihood (that’s always certain); then the choice is either take the money or fight for crap compensation whilst being savaged and hauled through the courts.

    Brighton Council (where the UNISON rep has a desk in the town hall) have served up 123 of these agreements over the last 5 years.

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