Am I a maker of “vexatious requests” ?

26th June 2014

UPDATE – Wirral Council have capitulated, and have now withdrawn ALL their ‘vexatious’ refusals targetted against me.  Not content with this however, monitoring officer Surjit Tour, head of the legal “team” has made a veiled threat on the WhatDoTheyKnow website.

10th October 2013

According to the Information Commissioner the answer is a resounding NO….

More here

29th July 2013

Back in March this year, the public servants at Wirral Council came up with a novel method of preventing me from accessing public information.  In the past, they’d tediously applied all sorts of exemptions within the Act, and when this wasn’t possible or reasonable, dragged their feet to an alarming degree, then set about erecting a towering wall of silence / inertia.

As regular readers will know, I don’t give up easily, and even if I’d waited patiently for well over a year, I’d get my grubby little hands on the information eventually, and then publish it here for my many millions of readers…  all waiting to be amazed and outraged in equal measure…

Here’s a link to my original post on this subject.

And here’s the original FoI request.

At last, I received an email from the ICO today, telling me they’re going to look into this:

From: casework@ico.org.uk [mailto:casework@ico.org.uk]
Sent: 29 July 2013 15:06
To: Paul C
Subject: Initital letter to C[Ref. FS50491264]

PROTECT

29th July 2013

Case Reference Number FS50491264

Dear Mr Cardin

Please find attached my initial letter to you with regards to this information request (attached) to Wirral Borough Council.

Please note that to reply to this correspondence it will be necessary to reply directly without changing any of the details in the subject box. This will ensure that your correspondence is allocated to the correct case.
 
Yours sincerely

[officer name redacted]
Case Officer – Complaints Resolution
Information Commissioners Office

Attached letter:

29 July 2013

Case reference number FS50491264

Dear Mr Cardin

Freedom of Information Act 2000 (FOIA)

Your FOIA request to Wirral Borough Council (council) dated 18 October 2012.

Further to our letter of 27 March 2013, I write to inform you that your case has now been allocated to me to investigate. This letter will explain how I intend to do this. It will also provide you with contact details so that you can get in touch with me if you need to.

What happens now

Where possible the Information Commissioner prefers complaints to be resolved informally and we ask both parties to be open to compromise. With this in mind, I will write to the public authority and ask it to revisit your request. It may wish to reverse or amend its position. If it does, it will contact you again directly about this.

In any event, it must provide us with its full and final arguments in support of its position. Once I receive its arguments, I will consider its reply before either contacting you to discuss the matter further or preparing a decision notice. Further information is available on the Information Commissioner’s Office (ICO) website:

http://www.ico.org.uk/complaints/~/media/documents/library/Freedom_of_Information/Practical_application/how_we_deal_with_complaints_guidance_for_complainants.ashx

The request

On 18 October 2012 you requested information of the following description:

See attached copy

On 15 December 2012 you requested an internal review due to non-response from the council to your information request.

The council provided you with an internal review on 18 March 2013. It refused to provide the requested information. It cited the following exemption as its basis for doing so:

It provided some information within the scope of your request but refused to provide the remainder. It cited the following exemptions/exceptions as its basis for doing so:

  • Section 14(1) of FOIA

The scope of the case

The focus of my investigation will be to determine whether the council handled your request in accordance with the FOIA. Specifically, I will look at whether the council is entitled to rely on section 14(1) as a basis for refusing to provide the information you requested. Refusing the request as it deems it to be vexatious.

The Commissioner has recently published new guidance on section 14 of the FOIA, vexatious requests. A copy of this guidance can be found at the following link:

http://www.ico.org.uk/for_organisations/guidance_index/~/media/documents/library/Freedom_of_Information/Detailed_specialist_guides/dealing-with-vexatious-requests.ashx

Please contact me within the next 10 working days, that is, 12 August 2013 if there are matters other than these that you believe should be addressed. This will help avoid any unnecessary delay in investigating your complaint. If I do not hear from you by this date, my investigation will focus only upon the matters identified above.

If you have any queries at any time you are welcome to write to me at the above address, at casework@ico.org.uk (please ensure that you quote the above case reference) or by telephoning me on [telephone number].

Yours sincerely

[officer name redacted]

Case Officer – Complaints Resolution

David Garry, the subject of the FoI request, is a controversial figure.  He was Wirral Council’s Chief Internal Auditor and whilst working for Wirral Council, made some alarming decisions which I won’t go into here, but one was to analyse the dodgy HESPE contract from an audit perspective and endorse it with “3 stars” – or the highest possible recommendation.

Garry was at the heart of the ISUS / BIG Fund shenanigans, where £800,000 of central government money aimed at creating jobs locally was incorrectly apportioned (to put it mildly). Two brave whistleblowers working for the council appointed facilitating company, Nigel Hobro and James Griffiths, did what had to be done and reported their concerns to the authorities.

This was all many moons ago…  but the towering wall of silence / inertia that I referred to earlier was quickly erected, and remains in place to this day, while we kick our heels, awaiting the publication of the Grant Thornton Investigator’s report.

In other words, I’m dubious about all this.  I have my own well-founded concerns that there’s more than meets the eye to this “vexatious request” nonsense.  Having made over 400 FoI requests, of many different organisations… this is the first time one of my requests has been branded in this way.

There’s a lot more to come…

My defence…

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, 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://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 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.
  • 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, 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, 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:

“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):

I believe Wirral Council are mistaken in aligning my FoI requests with the Dransfield case.  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 bullying employer, abusive of power (M Smith report); also abusive of the disabled people under its care, failing in central governance, and ‘abnormal’ (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 £900,000 (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/live…

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:

https://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.

About Wirral In It Together

Campaigner for open government. Wants senior public servants to be honest and courageous. It IS possible!
This entry was posted in FoI Requests, General, Whistleblowing and tagged , , , , , , , , , , , . Bookmark the permalink.

One Response to Am I a maker of “vexatious requests” ?

  1. swwhag says:

    Public bodies and the ICO have latched on to Dransfield for all “vexatious” requests.

    Also this appeared in ICO papers supporting its upholding of an NHS refusal of a request as vexatious, written by an NHS FOI Officer:

    “the requestor is only able to request a review of each individual response, whereas when providing our supporting evidence we are able to provide evidence of previous requests and other correspondence”.

    Evidence that the ICO discriminates against the public. This was a complaint where I sent a recorded delivery letter to the ICO in December 2012 asking it to consider related cases together. It claimed not to have received the letter and and a follow up in January 2013, despite the recorded delivery letter being signed for.

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