Monday 24th September 2018,
North Yorks Enquirer

NYE Investigates SBC Blacklists

NYE Investigates SBC’s Blacklists

by TIM HICKS

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Regular readers will know that in the interests of transparency and democracy, the North Yorks Enquirer (NYE) has been pursuing the issue e mail interception of Councillors emails by Scarborough Borough Council (SBC) Officers. As revealed in full council.

However, there are much wider issues involved in this policy, with serious implications for civil liberties and freedom of the press.

SBC Blacklisting Policy

SBC has a policy of intercepting emails to Councillors from persons it considers to have sent “abusive” or “inappropriate” emails to Councillors and SBC employees.

SBC also has a separate policy of designating anyone that contributes anything to the NYE as collectively acting to cause “distress” to Councillors and Council employees. It uses this to justify ignoring Freedom of Information (FOI) requests and correspondence from NYE contributors.

Further, alleging that NYE contributors cause “distress” (the statutory definition of a criminal offence of harassment) enables SBC to put anyone that criticises it in the NYE under threat of criminal prosecution and allows SBC to purport it can use the Regulation of Investigatory Powers Act (RIPA) (see SBC Solicitor David Kitson asserting this at 2.39 here) on anyone that criticises SBC policies, staff or Councillors in the NYE.

It therefore appears that SBC Officers are maintaining two Blacklists:

  • List 1: A list of people whose e mails are routinely intercepted because an anonymous Council Officer has covertly and arbitrarily decided that their e mails are “abusive” or “inappropriate”. The basis of this determination is unknown.
  • List 2: A list of people it alleges are harassing Councillors and council staff, on the basis that they write in the NYE. Again, the person that has drawn up this policy and is responsible for placing NYE contributors on the list is unknown.

Interception of Council’s emails; an abuse by SBC Officers

The law on email interception is comprehensively covered in this Guardian article, which makes absolutely clear that, contrary to Mr Kitson’s assurances to Councillors (above), local Councils cannot intercept the content of Councillor’s emails.

A similar situation arose when Councillors from Liverpool City Council (LCC) found out that their emails were being intercepted without their knowledge. LCC used exactly the same justification as SBC: That they were acting to protect their staff and Councillors.

Quite apart from the fact that this practice is unlawful, one LCC Councillor has written an excellent article here, explaining why intercepting Councillors’ emails should be opposed. In the event every LCC LibDem Councillor withdrew from the Council’s e mail system to maintain confidentiality and prevent interception.

In his presentation, Mr Kitson stated that as a responsible employer, SBC had to protect staff and Councillors from inappropriate emails. This is not true. SBC is not the employer of Councillors. They have no contract of employment with SBC and receive an allowance, not pay. SBC, therefore, has no employer’s Duty of Care to Councillors.

It should also be said that although there may be a policy authorising interception of Councillor’s emails and it may have been distributed to Councillors, having the policy and then implementing it are two very different things. Certainly, if a Councillor’s emails were to be intercepted, then he should have been given a specific notification of this. So it is clear that Council Officers have authorised the covert interception of Councillors’ emails without the knowledge or informed specific consent of Councillors. What happened to open democratic government?

Blacklisting: The potential for abuse of SBC’s powers

It seems to me ridiculous to maintain that all contributors to the NYE are intent on causing “distress”, (the legal definition of a criminal offence of harassment) against SBC Councillors and Council staff. Particularly as several SBC Councillors themselves utilise their right of free speech to criticise SBC in articles published in the NYE.

SBC Councillors who have contributed to the NYE

Nevertheless, SBC Officers and Councillors continue to enforce this convenient fiction as a pretext to ignore FOI requests on matters SBC would prefer not to disclose. Thus preventing the passage of information to Scarborough residents via the NYE and supressing any lawful criticism that may emerge as a result – a clear attack on freedom of speech.

I have searched extensively for examples of any other Council that adopts a similar policy towards a local media outlet and can only find one. Thurrock Council alleged the Thurrock Independent was vexatious and unreasonable. Editor Neil Speight, who has edited newspapers in Thurrock since 2004, said:

“Effectively she (Thurrock Council’s Chief Executive) is placing a ban on any response by the authority to investigative reporting by the newspaper.” 

“There can be no place for a council that will not bear a challenge to its workings, nor one that deems it cannot be held accountable.”

Sentiments I entirely agree with and which, in my opinion, perfectly reflect the approach adopted by SBC.

Thurrock Council has recently lost a second IPSO accuracy complaint against the Thurrock Advertiser, although it still continues to blacklist it. Full story from the Press Gazette here and here.

Writing in the NYE, former SBC Councillor Mike Ward (Independent, Eskdale) has confirmed that SBC Officers have been intercepting Councillors emails since at least 2013 despite assurances he received at the time from SBC solicitors Lisa Dixon and David Kitson that they were not. Former Councillor Ward’s emails from NYE journalist Nigel Ward (no relation) were intercepted because Nigel was exposing the Peter Jaconelli sex abuse and Ben Marriott fraud allegations scandals. This correspondence was entirely in the public interest, but nevertheless was apparently designated as “inappropriate” or “abusive” by SBC’s Legal Department. Thereby providing a pretext to intercept it and suppress lawful criticism of SBC by a journalist.

It would therefore appear that Nigel Ward is on List 1 and List 2. But contrary to Mr Kitson’s assurances, Nigel Ward did not receive any warning or notification that his emails would be intercepted. It therefore appears that this interception was not conducted in accordance with Council policy.

Councillor Bastiman has confirmed that I am not on List 1, but I am on List 2. I believe that I was listed because I helped expose his former colleague Conservative Councillor and Mayor Peter Jaconelli as a rapist and a paedophile. Be that as it may, I have put this to Councillor Bastiman and he has not denied it.

SBC clearly has a duty to interact openly with all local media outlets, even if they criticise it. Yet SBC has ignored this and imposed a full life term of excommunication on the NYE since at least 2013. Clearly an excessive and unjustifiable response. In contrast, Thurrock Council only imposed its ban on the Thurrock Independent for six months.

Blacklisting by a Council can have a major impact on anyone it chooses to blacklist. As an example, see this article from the Daily Mail on the effect appearing on a Slough Council blacklist had on one entirely innocent citizen. Mrs Jane Clift made a complaint and in response, Slough Council blacklisted her as potentially violent and then distributed this information.

Some of the organisations that Slough Council contacted were informed that Mrs Jane Clift was blacklisted and potentially violent.

Mrs Clift was forced to leave Slough, where she had lived for ten years. Eventually, she had to sue the Council for libel. It took a bitter four-year legal battle with Slough Council to clear her name. The case cost Slough taxpayers an estimated £500,000 in legal fees. Quoted in the Daily Mail, Mrs Clift said:

“All it takes is one council buffoon to take a dislike to you and he or she can put you on this register. There was no right of appeal. The only way I could overturn it is was to embark on this massive legal battle.”

“What is terrifying is that there is almost no proof required and no hearing to determine the truth of the allegation. It could happen to anybody who gets into even the most minor disagreement with their council.” 

As with Slough Council, SBC does not have any appeal process and it appears that any Council Officer can blacklist anyone, for any reason and without having to state it or justify it. However, at least Slough Council maintains a time limit of eighteen months before blacklisting expires. SBC adopts a much tougher and more aggressive approach and permanently blacklists anyone that criticises it in the NYE. Again, a policy that is vindictive and oppressive.

Very few people have the time or money to launch a libel action. Particularly against a public body which has unlimited funding in real terms, its own legal department that provides its legal advice for free, and therefore has no incentive to come to an out of court settlement. In Mrs Clift’s case, Slough Council went all the way to court, no doubt hoping that it would win by default, either because she would crack under the strain or she would run out of money. Brave Mrs Clift did neither and won, costing Slough Council’s taxpayers an estimated £500,000 in costs.

Simon Davies, from the human rights watchdog Privacy International, said:

“This just shows the megalomania of these local authorities. This poor woman was subjected to a Kafkaesque ordeal because of an incorrect allegation made by one official.” 

‘It is the sort of behaviour that we would have condemned if it came from China or Russia. Our councils seem to be out of control.”

SBC’s similar lack of openness and accountability over determining who goes on either of SBC’s blacklists must be deeply concerning. Particularly as it has previously made allegations of harassment against NYE journalists and been unable to justify them.

(See the full range of SBC’s shameful appearances in Private Eye here).

No SBC Councillor or employee has ever made a complaint to the NYE about its coverage. However, SBC’s Legal Department also tried to close down the NYE’s predecessor “Real Whitby”, but when challenged, denied this. BBC coverage of SBC here.

The implication being that the policy of imposing a group punishment by blacklisting anyone that contributes to the NYE is part of an ongoing campaign of harassment of local people and local journalists by SBC.

Trying to obtain more information on SBC’s Blacklisting Policy

Being an eternal optimist, I have written once more to Councillor Bastiman and submitted a Freedom of Information request to SBC:

Cllr Derek Bastiman
Scarborough Borough Council
Town Hall,
St Nicholas Street
Scarborough, YO11 2HG

28 August 2018

 Dear Councillor Bastiman,

 

Open Letter concerning Scarborough Borough Council (SBC) policy of maintaining a “Blacklist” of NYE Contributors

Further to my email to you of the 21st of August, this has now been posted on the North Yorks Enquirer (NYE) and can be read below. 

 I am saddened to relate that I have had no response from you.  

It deeply concerns me that it appears that under your leadership, SBC is maintaining a blacklist of journalists and contributors to the NYE, because they have criticised SBC and by implication, your ruling Conservative group. 

This appears to be an act of retaliation by the controlling Conservative party against the NYE and its contributors, for providing a platform for local people and Councillors to use their right of free speech to lawfully criticise SBC. I assert that for the Councillors of one party, unsupported by any Councillors of any other grouping to designate anyone that criticizes SBC in the NYE as collectively harassing SBC Councillors and Council employees, is an abuse of power. 

You have had the opportunity of responding to this, but have chosen not to. 

SBC is a public body and you have been elected on a Conservative party manifesto that supports free speech and the freedom of the press. I consider that the refusal of yourself and SBC to engage in debate with local people and the media, or to provide clarification on this emotive issue is unacceptable in a democracy. In the interests of openness and accountability, I have therefore submitted a Freedom of Information request to the Council (below) to obtain and then disseminate more information on this important issue to your electorate. 

Freedom of Information Request

  1. Scarborough Borough Council (SBC) policy on using its powers under the Regulation of Investigatory Powers Act.
  1. Who can authorise use of the council’s powers under the Regulation of Investigatory Powers Act.
  1. The number of times -if any- the council has used its powers under the Regulation of Investigatory Powers Act since 2010.
  1. If these powers have been used, please can you confirm:

4.1. The nature of the activity conducted (e.g. covert surveillance, e mail interception). 

4.2. The reason for using the powers e.g. suspected Tax fraud. 

4.3. When the action was taken and its duration.

4.4. Any prosecutions or costs saved that resulted from use of the Council’s powers under the Regulation of Investigatory Powers Act 2010.

  1. Who authorised threats of legal action by Mrs Lisa Dixon against Mr Glenn Kilpatrick, Mr Tim Thorne, Mr Nigel Ward and myself in March 2013.
  1. Who authorised the letter dated 28th of March 2013 from Mrs Lisa Dixon that requested that the Real Whitby internet news magazine be closed down by its ISP: http://www.real-whitby.co.uk/wp-content/uploads/Scarborough-borough-council-legal-action-002.jpg
  1. Who authorised the press release to the BBC denying that SBC had tried to close down the Real Whitby internet news magazine: https://www.youtube.com/watch?v=i-i3sW-795k
  1. If Scarborough Borough Council Officers and/or Councillors have had correspondence or discussions with or from, other public bodies concerning surveillance or legal action against Real Whitby, The North Yorks Enquirer, Mr Glenn Kilpatrick, Mr Tim Thorne, Nigel Ward and myself since 2012.
  1. If it is the case that Scarborough Borough Council Officers and/or Councillors have had correspondence or discussions with or from other public bodies concerning Real Whitby, The North Yorks Enquirer, Mr Glenn Kilpatrick, Mr Tim Thorne, Mr Nigel Ward and myself, please can you confirm:

9.1. The name of the public body. 

9.2. The date of the correspondence or discussions.

9.3. The name of the person in the other public body that Scarborough Borough Council Officers and/or Councillors had correspondence or discussions with. 

9.4. The name and Department of the Scarborough Borough Council Officers that had correspondence or discussions with each public body.

9.5. The name, party and cabinet post of the Scarborough Borough Councillors that had correspondence or discussions with each public body. 

9.6. The purpose of this correspondence or discussions. 

9.7. The content of this correspondence or discussions.

9.8. The outcome of these discussions

  1. The names of all contributors to the Real Whitby and North Yorks Enquirer internet news magazines whose e mails to Councillors and Council staff are being intercepted.
  1. The name(s) of the persons that authorised e mail interception.
  1. The names of all contributors to the Real Whitby and North Yorks Enquirer internet news magazines who are designated by Scarborough Council as collectively causing nuisance and distress to Councillors and Council employees. Thereby leaving them open to criminal prosecution for harassment and providing a pretext for SBC to place them under surveillance.
  1. The name(s) of the persons that authorised this policy and those who determine who is placed on the list of persons harassing SBC Councillors and council staff.
  1. The names of any contributors to the Real Whitby and North Yorks Enquirer internet news magazines who have been placed under surveillance by SBC.
  1. The name(s) of the persons that authorised surveillance.
  1. Please can you confirm which public bodies beyond the SBC IT Department (if any), the list(s) of people designated as warranting e mail interception (Question 8) have been distributed to.
  1. Please can you confirm which public bodies beyond the SBC IT Department (if any), the list(s) of contributors to the Real Whitby and North Yorks Enquirer internet news magazines who are designated by Scarborough Council as collectively causing nuisance and distress to Councillors and Council employees (Question 12) have been distributed to.
  1. The legal power you assert that authorises SBC to maintain these lists and to authorise e mail interception.
  1. The length of time a person stays listed as warranting e mail interception and/or designated as causing nuisance or distress to SBC staff and Councillors by contributing to the NYE.
  1. What is the appeal process against listing in either case.

I would ask that you reconsider your party’s position and direct Council officers to issue a full response, to reassure the electorate and fully inform them of SBC policy. 

On a personal note, I am sorry we are still at issue over this and I would again repeat my request that this policy is re-considered independently and that you issue a response to my concerns.

I look forward to hearing from you in due course. Be assured I will arrange for any rebuttal of my views or any comment on this that you or any other Councillor wishes to make, to be published in the NYE.  

Kind regards,

Yours sincerely,

Tim Hicks

Freelance journalist and contributor to the NYE

My intention in submitting this FOI request is to provide the residents of Scarborough with information on SBC policies. Clearly a lawful and commendable purpose.

I will report back to the NYE in due course if or when I receive a response from either Councillor Bastiman or the SBC Freedom of Information office.

I have raised this issue with Council Leader Councillor Derek Bastiman many times, but he simply ignores the correspondence and refuses to engage. Presumably because he cannot justify the position adopted by the council he leads.

My letters to Councillor Bastiman on this topic can be read below:

They have all been ignored.

Based on past experience, I suspect that no response will be forthcoming, in which case, further deductions and conclusions can be drawn.

Watch this space . . .

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