18th March 2013
Ever since lodging this, my first FoI request, with Cheshire West & Chester Council back in August 2009, I’ve been busy using my statutory querying rights on a fairly regular basis. These rights belong to all UK citizens, and can’t be removed:
Almost immediately, I saw the potential value of being in a position to exercise these rights and felt that to everybody, not just politically engaged citizens, the world of public information was at long last beginning to open up. The power of the FOI Act, if used wisely, could make those traditional, jealously guarded barriers to access melt away.
I had some very early success. The above FoI request helped me to retire early. (I won’t go into the finer details attached to this, but after a long running dispute with my then employer, the request placed enough pressure on them, at just the right time, to make them roll over, hold up their hands and accept defeat).
Smarting, they then made a ham fisted attempt at unlawfully closing down my FOI and DP rights, which may have also breached my Article 10 rights under the Human Rights Act. I kept my cool and spent a long time researching the subject – and the law – but because I’d deliberately set out not to breach my ‘ban’, it panned out for the next 20 months. This time however, I had the invaluable assistance of one of the country’s top privacy lawyers, Hugh Tomlinson QC. And ultimately, the council were forced to concede defeat. More here.
As far as my requests are concerned, up until today, Wirral Council had not resorted to the ‘vexatious request’ measure as a means of withholding information. From a total of over 400 historical requests, this is the first time I have had a request greeted by this response.
But now it’s happened, I feel there’s no justification for it. I will use this blog post to set out my reasoning, before appealing to the ICO.
Here’s the request, including the latest response from a Wirral Council solicitor, explaining her justification for deeming the request ‘vexatious’ and for not releasing the information:
Wirral Council have just one data and information professional and one unqualified assistant dealing with a very large number of requests. There is a growing public concern that they are not fully resourced to properly discharge their obligations as a data controller under the FOI Act. The grounds for these concerns may become clearer if you follow this link and examine an analysed sample of 14 FoI requests I’ve made over the last couple of years.
There is also plenty of evidence to suggest that they are struggling to reach a working understanding of the complex set of provisions within the Act, provisions which exist to help requester and data controller alike.
- The first item of note was Wirral Council’s recent, dubious status as the only council in the land being monitored by the Information Commissioner’s Office. This is their second appearance on the list of monitored councils. The first time around, 18 fellow councils used the experience to look inward, examine their performance and ‘clean up their act’, however Wirral Council did not – which resulted in them making a second appearance.
- Second is this recent negative comment, directly placing “Wirral Council” in a negative light by the Information Commissioner himself, Christopher Graham.
- Third is a link to a 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://democracy.wirral.gov.uk/mgConvert2PDF.aspx?ID=16776 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/s50005983/FOIREPORT.pdf 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 defensive culture on the part of the data controller, and a tendency to ‘accuse’, which continues to dominate despite Klonowski.
A far more in-depth analysis of Mr Paterson’s reasoning is carried out here.
- 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
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, which appears to show FoI responses being channelled 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. 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 efficient, secure and showing good public stewardship. In fact the council themselves reported in this document that in the area of compromise agreements:
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.
With the backdrop of ongoing failures in governance 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 employees. I was left shaking my head in disbelief upon discovering that the council’s internal systems were so inadequate and ‘full of holes’.
Here is some further helpful information in the form of annotations that have been posted to the WhatDoTheyKnow website. Much of this and the information laid out above will form the grounds for my appeal when I lodge it with the Information Commissioner’s office. Interesting times…