Another SBC FOIA Stone-Wall

Another SBC FOIA Stone-Wall

• an “In My View” article by NIGEL WARD, dissecting yet another SBC FOIA response riddled with unadulterated evasions and implausible lies.

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Four-and-a-half months ago, on 17th April 2018, a member of the public (a Mr Geoff PICKERING, whose Open Letters have appeared in the Enquirer here and here) lodged a Freedom of Information request in pursuit of information regarding the legality of the action taken by Scarborough Borough Council Chief Executive & Head of Paid Service, Mr Jim DILLON, in prohibiting Councillor Michelle DONOHUE-MONCRIEFF [Ind.Ind.] from attending Council and/or Committee meetings and from contacting Council Officers and staff. The FOIA request began:

“Dear Scarborough Borough Council,

The SBC Chief Executive has recently disbarred an Elected Member of Scarborough Borough Council from entering council premises, emailing, telephoning or communication with council staff.”

The request went on to particularise requests for the follow information:

• The exact legal authority and powers that can be exercised to exclude and or limit the function of elected members.
• Who are those powers are vested in
• What limits are this to this authority
• What circumstances those powers can be used
• What procedures must be followed in exercising those powers
• What standards are required to meet.
• What are the procedures for appeal or challenge to the exercising of these powers.

SBC acknowledged the request on the same day. The Freedom of Information Act 2000 requires public bodies fully to discharge requests for information within twenty working-days. Thus, the legal limit for a full response expired on 17th May 2018. It is now 6th September and the sum total of the various attemptes at a response has been nothing more than flatulence.

Having received no further word from SBC, and in the belief that the permitted response-time had expired on 16th May 2018 (presumably having overlooked the fact that Bank Holidays do not qualify as ‘working-days’), Mr PICKERING lodged an appeal for Internal Review of his request – the next stage in the process before qualifying for a Formal Complaint to the Information Commissioner’s Office – on the grounds that his request had not been discharged on time.

SBC’s response of the same date (16th May 2018) is bizarre.

Having first set out, at great length, the assertion that a response would identify the Councillor concerned (and thus amount to a breach of her rights under data protection legislation), SBC stated that the Council did not rely on the exemption clauses relating to personal data at all. Then why mention it?

But the response then proceeded to assert, at even greater length, that the requests were not requests for information at all; rather, the Council asserted that the requests sought access to legal advice that was exempt from disclosure on grounds of legal privilege. The Internal Review was denied.

Let me repeat that, in bold, as we will be returning to it shortly:

• Requests denied on grounds of legal privilege under s.42 of the Act.

On 23rd May 2018, the Mr PICKERING appealed on the grounds that the legal privilege exemption had been wrongly applied. A correct interpretation of the Act should have recognised that any powers held by the CEO to prohibit Councillor DONOHUE-MONCRIEFF, were they to exist (which they do not), must be contained in legislative or Constitutional authorisation held by the Council and therefore open to public scrutiny. Mr PICKERING stated:

• “There is no legitimate reason for any Council to refuse information on what powers it has and has exercised”.

This is clearly the case.

Mr PICKERING further pointed out that, notwithstanding the Council’s irrelevant assertion that it was not invoking the personal data exemptions, the Chief Exec had himself done exactly that – claimed that very same personal data exemption ‘live’ in the Council Chamber when Councillor Vanda INMAN [Ind.Ind.] raised what amounted to the same question – on what authority had the CEO banned  Councillor DONOHUE-MONCRIEFF?

This clip was featured in Tim THORNE’s article “Councillor Excluded from Meeting” (published 18th May 2018).

Of course, the truth is that the CEO held no powers of any kind to ban any Councillor from carrying out the full range of duties of office mandated by the electorate at the 2015 local election – ironically, an election over which Mr DILLON presided in his role as Returning Officer.

He had acted beyond his powers – ultra vires – as I have explained in excruciating detail in a series of articles here, here, here and here.

To proceed through the FOIA correspondence blow-by-blow would be tedious, so – for convenience of overview – I present the following ‘Time-Line’ summary of the FOIA correspondence, thus:

TIME-LINE

17th April 2018 – Freedom of Information request lodged (see above);

14th May 2018 – Mr DILLON assured Full Council that he could not discuss his authority on grounds of protection of personal data; [FIRST EXCUSE = FALSEHOOD];

16th May 2018 – SBC’s FOIA response claims that the reason for withholding the information was not the personal data exemption (thereby contradicting the CEO); rather, the reason for withholding the data information was legal privilege; [SECOND EXCUSE = FALSEHOOD];

18th May 2018 – Tim THORNE’s article “Councillor Excluded from Meeting”  published; 

23rd May 2018 – Appeal for Internal Review of FOIA response lodged on the grounds that no legal privilege is involved, since no action is in progress;

12th June 2018 – SBC’s Internal Review response, claiming no requirement to respond on the grounds that the information is already in the public domain, i.e. in Article 11 and Part 3, Schedule 3 of the Constitution. This is untrue. [THIRD EXCUSE = FALSEHOOD];

13th June 2018 – Second Appeal for Internal Review of FOIA response lodged on grounds that nothing in the specified clauses of the Constitution confers upon the CEO the necessary authority;

24th June 2018 – Requestor sends reminder because 13/06/18 Appeal neither acknowledged nor discharged;

25th June 2018 – SBC belatedly acknowledges second Appeal for Internal Review, requesting sight of certain documents. [FOURTH EXCUSE = PREVARICATION];

29th June 2018 – Requestor responds, pointing out that the said documents were originated by SBC and, like all SBC documents, are already in the Council’s possession. In any case, they are unnecessary to the Review;

17th July 2018 – In the absence of further acknowledgement or response, the requestor enquires whether or not the Council has any intention of discharging the requests;

26th July 2018 – SBC responds, again claiming the CEO’s authority is set out in the Constitution (not true) and in local government legislation (failing to specify which legislation – there is none). [FIFTH EXCUSE = FALSEHOOD and PREVARICATION];

24th August 2018 – Requestor responds, repeating that the Constitution confers no such authority  and requesting specific references.

5th September 2018 – SBC announces that it is satisfied that it has provided a proper response – i.e. no evidence that the CEO holds the necessary authority.

(The full text of the correspondence can be reviewed here).

But what does the man himself have to say? Let us remind ourselves of Mr DILLON’s personal email to all Councillors, dated 6th June 2018:

In particular, it is important to focus on the following statement by Mr DILLON:

• “The decision balanced the need to ensure the safety and well-being of staff and Members and the proper functioning of the Council’s democratic process, as against the Member’s rights to attend Council meeting”.

This leaves no room for doubt that Mr DILLON’s motivation (perhaps one should specify ‘overt’ motivation) was to mitigate (read: ‘cover his superannuated ass’) against some aspect of Councillor DONOHUE-MONCRIEFF’s conduct perceived by Mr DILLON as posing some unspecified risk to fellow Councillors and Officers. One wonders how he dare refer to “the Council’s democratic process”.

Councillors’ conduct is, of course, the province of the Standards Committee, as authorised under s.27-34 of the Localism Act 2011 which underpins the SBC Councillors’ Code of Conduct. Scarborough Borough Council is bound by this; any actions such as sanctions or limitations which may be imposed upon a Councillor, in any circumstances, can only be under the auspices of the Council’s Standards Committee (comprising elected Councillors and at least one Independent Person); so specifies the Act. In short, Councillors’ conduct is Councillors’ business – not Officers.

Indeed, the powers available to the CEO are clearly set out in the Constitution (as cited in the FOIA response of 12th June 2018) and, though authorised “to exercise the functions of the Head of Paid Service with overall corporate management and operational responsibility and with authority over all Officers, other than the Monitoring and Section 151 Officers acting as such”, the CEO is granted no powers over Councillors. Mr DILLON’s powers extend solely to the body corporate – emphatically not to the body electorate. Is it that Mr DILLON cannot grasp that distinction? Or is it that he grasps it, but erroneously believes that he cannot be challenged?

The ruling on Councillor/Officer relations is explicit:

“Councillors and Officers are servants of the public and are indispensable to one another. Their responsibilities however are distinct. Councillors are responsible to the electorate and serve only so long as their term of office lasts. Officers are responsible to the Council. Their job is to give advice to Councillors and to the Authority, and to carry out the Authority’s work under the direction and control of the Council, the Cabinet, and relevant committees.”

Officers are responsible to the Council. Councillors have powers over Officers, not vice versa. But Mr DILLON imagines that the butler can evict the master.

Thus, the Council has spent from 17th April 2018 until 5th September 2018 doing its utmost to avoid admitting that the Chief Executive has acted beyond his authorisation – and in so doing, illegally prevented a Councillor from fulfilling her mandated duty to represent the people of Hertford Ward, presently disenfranchised. What happened to “No taxation without Representation”? Will Jimbo spring the Hertford taxpayers a Council Tax rebate?

The Local Government Ombudsman holds the opinion that the Hertford electors have not been disenfranchised on the grounds that Hertford is blessed (or cursed) with two elected Councillors – the other being Councillor Godfrey ALLANSON [Con.].

The addressee, a Hertford elector, has expressed a view on that – that view being that he has no use for a toxic Tory representative (and who can blame him?).

. . . commenting on:

And it gets worse . . .

On the evening of Tuesday 4th September 2018, Councillor DONOHUE-MONCRIEFF attended one of her ward Parish Councils – Folkton. Who should turn up, for the first time in living memory, but the Leader Councillor Derek BASTIMAN [Con.], accompanied by his Portfolio Holder for Transformation (stop sniggering in the back row), Councillor Heather PHILLIPS [Con.] (East Ayton), for whom no item on the Agenda had any particular relevance. So why were they there? Councillor BASTIMAN is exercising his right to silence.

I would not suggest for one moment that they were there to intimidate or provoke Councillor DONOHUE-MONCRIEFF – but really, who would put it past them?

And answer me this: why would Councillor PHILLIPS, who claims to have been “distressed” by Councillor DONOHUE-MONCRIEFF and sore afraid to allow her in the same Council Chamber, loiter within two or three feet of her? A prat to catch a mackerel?

Eyup, Jim. Cry ‘havoc’ and let slip the dogs of war! I wonder when the Scarborough & Whitby Conservatives will figure out the extent of the damage the CEO and the Leader are doing to their re-election prospects?

Woof, woof!