#FoI Act – Arguing against ‘Confidentiality’ and ‘Commercial Confidence’ exemptions

11 11 13 - arguing against confidentiality

Wirral Council’s disability discrimination ~ found in 2010 by the Equality and Human Rights Commission

First ICO Decision Notice

Second ICO Decision Notice

The following requests were sent to Wirral Council almost a year ago, but were never answered.  It has taken an appeal to the Information Commissioner to get the council moving…  the problem is they’re moving in the wrong direction, and despite media press releases, stating they’re ‘turning a over a new leaf’, they are in fact appealing this request and the second subsequent ICO Decision Notice, which found in my favour and is threatening to uncover protected and hidden correspondence between themselves and law firm DLA Piper.

EMAIL ONE

NOT ANSWERED by Wirral Council

From: Paul Cardin

23 November 2012

Dear [Wirral Council Solicitor],

Firstly, please provide all correspondence generated by yourself (under the terms of the original request).

The information that the council generated with regard to this CANNOT be covered by a Section 41 Exemption. Having already travelled as far as the Information Commissioner’s Office and received a legal document in the form of a ‘Decision Notice’ instructing you to act, I look forward to receiving this forthwith, without any need to internally review or put any further obstacles in the way (I don’t think the FOI Act permits an internal review AFTER a decision notice has been sent.)

Secondly, as for the information generated by DLA Piper UK LLP, I believe there is an overriding public interest attached to the release of the information.

• Wirral Council has a statutory duty to protect its vulnerable people – for the good of society. It has quite deliberately failed in this through unlawfully taking at least £700,000 from the bank accounts of numerous learning disabled Wirral people over a period of many years. When informed in great detail about this internally by Martin Morton, the council failed to stop it, bullied him out of his job, and carried on doing it – see the findings of the Martin Smith and Anna Klonowski “Independent” reports. The Equalities and Human Rights Commission found that this amounted to disability discrimination – the very subject matter of this request

• As a result of this disability discrimination, vulnerable members of the public have had their wellbeing adversely affected. Flowing directly from this, their ability to defend themselves against the threat of abuse has been severely diminished, because their confidence in their statutory protector – the local council (who now deny them access to information) – has been so badly damaged.  The council itself has been forced to admit to abuse of learning disabled tenants

• Despite this admission, there has been no reckoning or accountability yet for any of the councillors or senior public servants directly involved in these scandals – indeed currently, there is a drive (originating with the Council’s legal head) to keep the names within the investigation reports hidden. The public are still waiting for ‘right to be done’ – for the good of society.  But whilst they wait, there have been pay offs and there have been gagging clauses, used to stop former employees talking, concealed within compromise agreements. And there have been six figure sums paid to silence people who were found by independent investigations to have been connected to abusive behaviour towards vulnerable and disabled members of society

• Given the history of failed governance, which has also spread into other council departments, vulnerable people and their carers now need to be able to seek redress and rebuild their confidence in the body which is entrusted with looking out for their welfare.  They can do this by gaining access to information and to areas that appear to have been deliberately closed off through confidentiality – the written exchanges between the council and the law firms whose services are continuing to be purchased with large amounts of public money. Confidentiality is a factor; I don’t deny this; but I believe it is dwarfed by the urgent need for transparency, for the legitimate and compelling public interest to be satisfied, and ultimately for the good of society

• I don’t believe in this case that confidentiality can be a justified obstacle to openness and transparency and the good of society. There are now some very compelling questions that need to be asked of the law firm DLA Piper. Such as, how they arrived at a finding that there was no disability discrimination? How did the EHRC suggestion that disability discrimination, once confirmed, and investigated to see where it occurred, and how far it spread – become completely subverted – and changed to a remit which failed to acknowledge and recognise the EHRC finding, and looked simply for whether disability discrimination had occurred or not – only to find that it “hadn’t occurred”?

• On Wirral, where so much suffering has been caused over such a long period of time (10 years plus). I don’t believe that grave matters such as systematic abuse and disability discrimination, and the correspondence surrounding this, can be blocked through a Section 41 exemption on the grounds of ‘confidentiality’. The good of society is paramount and needs to be served in this case.

I will be contacting the Information Commissioner’s Office for further advice,

Yours sincerely,

Paul Cardin

Link to this

EMAIL TWO

NOT ANSWERED by Wirral Council

From: Paul Cardin

23 November 2012

Dear [Wirral Council Solicitor]

Further to the above (contents of DLA Piper email 1), as it took 9 months for the council to reply,  I have some doubts about how confident you are in engaging a Section 41 Exemption.

In light of this, please supply a written copy of DLA Piper’s express statement that they “consider the information to be confidential”.

Please also confirm in writing that DLA Piper have an intention to sue the council in the event of any breach. I believe this will be required for any successful engagement of Section 41.

Further, I do not believe you are in a position to confirm or deny the existence of:

a. Correspondence generated by the council
b. Correspondence generated by DLA Piper

Explanation:

a. Because this is not covered by a Section 41 exemption

b. Because the existence of the correspondence can be assumed for certain from the fact that the public now have DLA Piper identified as a contributor to the Anna Klonowski report – in the area of Disability Discrimination. There will be no detriment suffered by the council or DLA Piper, or risk to confidentiality in asserting that the information is held,

Yours sincerely,

Paul Cardin

About Wirral In It Together

Campaigner for open government. Wants senior public servants to be honest and courageous. It IS possible!
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