Link to the ‘offending’ FoI request on the WhatDoTheyKnow website:
This has been appealed to the ICO in the following terms on 19th June 2013 (which 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:
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 monitored by the Information Commissioner’s Office between January and March, 2013.
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.
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:
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 Wikeley 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, or indeed this “Bill Norman” 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. The ‘school’ element to the Devon County Council case 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 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:
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:
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.
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.