Request: Freedom of Information request - Scrutiny (1 June 2011)
Your CEO is on record stating that her trip to America was funded by BT. If your CEO is correct and BT did in fact pay all her costs, I would like any and all information regarding Suffolk County Council's scrutiny of her American trip in light of her business negotiations with BT and the fact that BT are on record stating “Given the Public Sector rules on acceptance of hospitality and the reputation and benefits of the programme, clients pay their own flights and accommodation costs.”
Response: (14 June 2011)
The role of the Chief Executive within the relationship between the County Council and BT with regard to Customer Service Direct Ltd, is currently being reviewed as part of the investigation prompted by whistleblowing allegations. It is not appropriate for the County Council to make any further comment at this time.
My comment: Interesting.
UPDATE 14th June 2011 Request for an internal review
Please pass this on to the person who conducts Freedom of Information reviews. I am writing to request an internal review of Suffolk County Council's handling of my FOI request 'Scrutiny'.
A freedom of information request is a request for information held by the council at the time of the request. It does not require any comment by Suffolk County Council. I refer you back to my original request, either supply the information requested of a valid FOI exemption for refusing to do so.
A full history of my FOI request and all correspondence is available on the Internet at this address: http://www.whatdotheyknow.com/request/scrutiny
UPDATE 30th July 2011: Internal review response
Freedom of Information Act 2000
We confirm that Suffolk County Council holds the information requested.
However, the Council has determined that the information requested is exempt from disclosure, under the following provisions of the Freedom of Information Act 2000 (the Act), namely:
♦ Section 30 - investigations and proceedings;
♦ Section 40 - personal information; and
♦ Section 42 - legal professional privilege.
The Council's reasons for relying upon these exemptions are explained in more detail below.
Under section 30(2):
Information held by a public authority is exempt information if-
(a) it was obtained or recorded by the authority for the purposes of its functions
(iii) investigations...which are conducted by the authority for any of the
purposes specified in section 31(2)... and
(b) it relates to the obtaining of information from confidential sources.
Further to the above, the purposes specified in section 31(2) include:
(a) the purpose of ascertaining whether any person has failed to comply with the law,
(b) the purpose of ascertaining whether any person is responsible for any conduct which is improper,....
(d) the purpose of ascertaining a person's fitness or competence in relation to the
management of bodies corporate or in relation to any profession or other activity which he is, or seeks to become authorised to carry on,...
If information held by a public authority is for the purposes of any of these functions and it relates to the obtaining of information from confidential sources, it is covered by this exemption.
This provision is principally intended to give protection to the identities of confidential sources so that those sources are not discouraged from approaching investigative bodies to inform on criminal or improper acts.
Section 30 is a qualified exemption so is subject to a public interest test. The information can only be withheld if the public interest in maintaining the exemption outweighs the public interest in disclosure.
This involves weighing the prejudice that may be caused to an investigation, or more generally to the investigatory processes of the public authority, against the public interest in disclosure. There is general recognition that it is in the public interest to safeguard the investigatory process. The right of access should not undermine an investigation nor dissuade individuals from coming forward to report wrong-doing.
In addition to safeguarding the anonymity of confidential information sources who came forward to contribute to the inquiry, in the knowledge that their names would not be publicised, the timescale is a key factor in the public interest test.
Public interest in maintaining the exemption will be stronger while an investigation is being carried out.
At the present time, both the person at the centre of the inquiry as well as other people involved are still employed by the Council.
There will also be a strong case for maintaining the exemption where keeping the
information secret is important to the success of the investigation. Given that the process remains on-going in various respects, withholding information from disclosure is crucial to an effective outcome for all concerned.
While there is evident public interest in the information, in terms of promoting openness and accountability, sufficient information is already deemed to exist in the public domain to satisfy that public interest and so no added value would accrue from the disclosure of further information. Furthermore, there is a clear public interest in the authority being able to secure information from confidential sources in relation to investigations.
Any disclosure of such information could have very serious consequences both for the individual sources and the future willingness of people to provide information.
In applying the public interest test in relation to this exemption, taking into account the above considerations, and including human rights issues and an assessment of the impact of disclosure on the success of the final outcome of the investigation, the Council's determination is, therefore, to withhold the information requested.
Section 40 sets out various exemptions from the 'right to know' for information that is personal data protected by the Data Protection Act 1998 (DPA). Personal data is defined in that legislation and includes any recorded information in any form relating to an identifiable living person. Personal data of any other person (third-party data) is exempt under section 40(2) if disclosure would breach one of the principles in the DPA.
Generally this will mean balancing the legitimate interests of the public in having access to the information against the interests of the individual under the first principle of the DPA and, in particular, considering whether it is unfair to release the information.
The exemption is designed to address the tension between public access to official information and the need to protect personal information.
To be specific, the exemption will apply where disclosure of the personal data would breach one of the data protection principles set out in schedule 1 of the Data Protection Act 1998 (provided for by sections 40(3)(a)(i) and 40(3)(b) of the Act). This is an absolute exemption, which means that if the condition is satisfied there is no additional public interest test to consider.
The first data protection principle states:
1. Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless-
(a) at least one of the conditions in Schedule 2 is met, and
(b) in the case of sensitive personal data, at least one of the conditions in
Schedule 3 is also met.
The second data protection principle states:
2. Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes.
The Council has determined that, given the nature of the inquiry, its focus, the
information supplied by confidential personal sources, the witnesses and others involved that section 40(2) of the DPA is engaged throughout.
Having confirmed that personal data (section 40(7) of the Act confirms that the relevant definition is set out in section 1(1) of the Data Protection Act 1998) is not only involved in the request but is its entire focus then it is judged that any disclosure would be unfair.
In assessing fairness, the Council considered the likely consequences of disclosure of the requested information on the individuals and the potential distress that might be caused - especially from the inevitable added intrusion that would ensue should the information be released. While there was undoubted media and public interest, there was also substantial evidence to date (especially from the various media) to suggest very strongly that any information disclosed would result in yet more damage and distress to the individuals involved.
Both the main individual and the others who contributed to the inquiry and its process did so in the reasonable expectation that their details would not be released. When the data was collected, the Council assured individuals that their details would not be disclosed.
There were high expectations of privacy. The presumption is in favour of protecting privacy, so the release of personal information will only be fair if there is a genuine reason to disclose.
A public authority will generally have to satisfy itself that:
♦ there is a legitimate interest in disclosure;
♦ the legitimate interest can only be met, or fully met, by the disclosure of
information which identifies individuals (i.e. the disclosure is necessary to that
♦ the disclosure would not involve unwarranted detriment to the individual’s privacy or other rights and legitimate interests.
It is accepted those expectations must be balanced against the needs of transparency and any presumption in favour of disclosure, especially where the performance of public duties and the spending of public money are involved. It is also accepted that senior officers should have a greater expectation of scrutiny in terms of how they carry out their public duties.
However, consent to disclosure was not provided. Further, the nature and content of the information were key factors in contributing to the argument in favour of withholding the information. Previous cases have pointed to the fact that information relating to an internal investigation or disciplinary hearing will carry a strong general expectation of privacy - even those involving senior staff.
The circumstances in which the information was obtained, i.e. primarily from confidential sources, is also an important factor.
As disclosure under the Act is considered disclosure to the public at large and not to the individual applicant, the legitimate interests of the public in disclosure needs to be balanced against the interests of the individual whose data it is. Therefore, there will be occasions where the requirement to demonstrate accountability and transparency, e.g. in the spending of public funds, will outweigh the rights of the individuals.
Ultimately, each case must be judged on its merits.
The Council believes that it is a reasonable expectation that the information would not be disclosed and that to do so would be unfair.
To confirm, therefore, Section 40(2) together with the condition in section 40(3)(a)(i) or 40(3)(b) provides an absolute exemption (no public interest test required) if disclosure of the personal data would breach any of the data protection principles. The Council has determined that to release the information would be unfair and so is withholding the information requested.
Section 42 sets out an exemption from the 'right to know' for information protected by Legal professional privilege (LPP). The exemption is qualified, meaning that it is subject to a public interest test.
LPP covers communications between lawyers and their clients for the purpose of
obtaining legal advice, or documents created by or for lawyers for the 'dominant' (main) purpose of litigation. LPP can be lost if the information is shared with others.
LPP is intended to provide confidentiality between professional legal advisers and clients to ensure openness between them and safeguard access to fully informed, realistic and frank legal advice, including potential weaknesses and counter-arguments. Both parties to the inquiry benefited from such advice. Neither party was prepared to consent to its disclosure.
Where LPP applies, therefore, there will need to be strong public interest in disclosure to offset the inevitable strong public interest in favour of the exemption.
The Council examined the information and confirmed that it is covered by LPP and that the exemption is, therefore, engaged. It then considered the public interest. The balance weighed in favour of maintaining the exemption and withholding the information.
In favour of disclosure are the general public interests in the promotion of transparency and accountability, and the amount of money at stake through the salary of the senior officer. Factors in favour of maintaining the exemption are the age of the information (issues affecting the inquiry are still being finalised and so are on-going), the importance of the principle behind LPP as applied, in this instance, to the inquiry, i.e. safeguarding openness in all communications between client and lawyer to ensure access to full and frank legal advice, the potential harm that disclosure might be likely to cause, and the significant personal interests of the individual at the centre of the inquiry.
The Council's determination is to withhold information requested.
My Comment: Their response is typical of a council, or anyone come to that, when trying to avoid answering a question. They have introduced a number of fallacies, however, at the moment I will focus on just two. The straw man fallacy and Proof by verbosity
The straw man fallacy: This is based on a misrepresentation of my FOI request. They have created the illusion of having correctly refused my request by replacing it with a superficially similar yet unequivalent FOI request (the "straw man"), and refused it, without ever having actually refusing the original FOI request.
Proof by verbosity/intimidation: Sometimes colloquially referred to as argumentum verbosium - a rhetorical technique that tries to persuade by overwhelming those considering an argument with such a volume of material that the argument sounds plausible, superficially appears to be well-researched, and it is so laborious to untangle and check supporting facts that the argument might be allowed to slide by unchallenged.
As a result I have submitted a complaint to the Information Commissioner.
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