Monday 21st May 2018,
North Yorks Enquirer

An Open Letter to SBC Leader Councillor Derek BASTIMAN

February 20, 2018 Letters

An Open Letter to SBC Leader Councillor Derek BASTIMAN [Con.] by TIM HICKS, concerning SBC Policy on NYE contributors arbitrarily designated “vexatious”.

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Dear Councillor Bastiman,

Thank you for your e mail.

Further to our recent correspondence, I can confirm that our correspondence and my response to the Council’s position have now been published in the NYE. It can be accessed below:

Other than some editorial changes, my response to the Council’s position in the article is as previously disclosed to yourself, Mrs Dixon and Mr Kitson in advance.

I think it is enormously to your credit that you engaged in debate with me. However, I was sorry that we could not come to some consensus, or way forward on this. At the end of our correspondence, you summarised your position thus:

Dear Mr Hicks

Thank you for your email containing your draft article.

I cannot support or agree with the inferences and conclusions that you have drawn from my email correspondence, which I believe to be clear.

Please take this as my final response on the matter.

Kind regards

Cllr Derek Bastiman Leader of the Council Scarborough Borough Council

Town Hall, St Nicholas Street Scarborough, YO11 2HG

The Council’s policy on e mails from persons designated as “vexatious” has been raised and discussed in council.

SBC 06.11.17 email interception revelations in full Council

However, the wider ramifications of this policy as applied to NYE contributors and FOI requests have not. It is not generally known that SBC Officers have followed a related policy of declining to provide information requested in Freedom of Information (FOI) Requests from some NYE contributors on the basis that they have been designated as “vexatious”. This decision is usually notified anonymously in an unsigned mail. Similarly, SBC Officers have also followed a policy of ignoring correspondence from some NYE contributors on the same basis.

In this context, I would refer to the article in the NYE by former Councillor Mike Ward:

“SBC email interceptions. What’s new?”

in which he comments about SBC Officers:

“They appear paranoid about confidentiality and to whom Councillors speak whilst performing their duties. If anyone is deemed vexatious, they do not want any emails of any description being sent.”

He also stated that:

To my own personal knowledge, Scarborough Borough Council Officers have been intercepting Councillor’s emails for at least 4 years and maybe more.

This was most certainly the case in the reported incidents in http://nyenquirer.uk/savilejaconelli-nyp-statement-on-ipcc-report-into-miss ed-opportunities/ – the Jaconelli case where Council Officers were not replying to the victims of his abuse.

This accords with my own experience. I first noticed a very aggressive and hostile approach from SBC Officers and Conservative Councillors against NYE investigative journalists when I started to investigated the Peter Jaconelli case at about that time. BBC investigation in which I feature here:

This hostility culminated in Councillor Tom Fox (Conservative) – incredibly – advocating “threat or retaliation” against citizen journalists in open Council. I believe the SBC policy of ignoring correspondence and FOI requests from NYE journalists is a throwback to those times.

North Yorkshire County Councillor and SBC Conservative Councillor and Mayor, Peter Jaconelli, was a Conservative icon. He revitalized Conservative fortunes in North Yorkshire and many SBC Officers and Councillors knew him well, including Councillor Tom Fox, who commanded the police in Scarborough at the time.

The Real Whitby and NYE investigation into Jaconelli revealed that Jaconelli was also a rapist, a child abuser and a thief that openly ran a vicious paedophile ring in Scarborough, in joint enterprise with Jimmy Savile.

Confirmation of this from North Yorkshire Police here:

Obviously, this did not go down very well with Scarborough Conservatives.

Whilst you have been clear and scrupulously courteous in our correspondence – and I respect that – nevertheless I regret that I still feel uneasy with the council’s position as currently applied. It appears to me to be inconsistent, contrary to generally accepted principles of free speech and the best interests of the electorate.

I reiterate that all public bodies are under an obligation to act openly, to act for the public benefit and to submit to scrutiny by journalists and the public alike. To hold public bodies to account, journalists and members of the public need to have access to information from those bodies, both for:

1. Informing the public generally about the organisation and the benefits it provides, which is in accordance with the objectives of most organisations and its management, and

2. Holding public bodies to account in cases of inefficiency, incompetence and/or misconduct. Which is in accordance with the public interest, but completely contrary to the self-interest of the officers of a public body.

A free and vibrant local press is in the best interests of local democracy and entirely consistent with the Conservative Party policy that the Council was elected on. I re-iterate that inventing pretexts to ignore correspondence and FOI requests from certain individual journalists that ask embarrassing or difficult questions, SBC Officers are undermining everyone’s right to have:

  • A free and effective press.
  • Access to information the public is entitled to know.
  • A Council, Councillors and Council Officers that are open and properly scrutinised by a free press.

I am therefore writing to formally request that council policy on the following practices that have been applied by SBC to me are formally reviewed and withdrawn:

  • Refusal of SBC Officers to acknowledge or respond to correspondence from me.
  • Refusal of Council Officers to sign correspondence to me.
  • Refusal of SBC to respond to FOI requests.

The grounds for requesting that SBC change its policy are specified below. I would formally request that each of the above three issues are treated separately.

I write on my own behalf and make no comment on the practices that SBC adopts towards other persons, whether they are NYE contributors or not.

Refusal of Council Officers to acknowledge or respond to correspondence from me:

1. You state that an Information Commissioner’s Office (ICO) Decision Notice supports the Council’s policy towards me. It does not. The ICO notice is two and a half years old and relates primarily to one local NYE correspondent covering one highly emotive local issue (demolition of the futurist), which I did not participate in and which is now closed. The Information Commissioner does not indicate in his judgment that it should be used as a justification for council officers to ignore correspondence from anyone that contributes to the NYE.

2. While a particular FOIA request may be deemed “vexatious”, there is no legal provision for the ICO to deem a particular individual requestor or group of requestors as “vexatious”.

3. Your own decision to abandon the policy adopted by SBC officers of ignoring emails from me and to respond openly to my correspondence was laudable. It also demonstrates that the policy of ignoring correspondence adopted by SBC Officers – which you have abandoned – is inappropriate

4. In his address to Council, Mr Kitson stated that any person designated as “vexatious” received a warning and they were then told that the policy had been applied to them. I have received no warning or notification that this policy has been applied to me. If the Council’s policy is to refuse to respond to correspondence on the basis that I am designated as “vexatious”, then the Council should acknowledge receipt of my correspondence. The acknowledgment being accompanied by a standard wording stating that the Council has received my email but will not be responding to it on the basis that it has designated me as “vexatious”.

Refusal of Council Officers to sign correspondence to me:

5. You state that an Information Commissioner’s Office (ICO) Decision Notice supports the Council’s policy towards me. It does not. The Information Commissioner does not indicate in his judgment that it should be used as a justification for council officers to correspond anonymously with anyone that contributes to the NYE.

6. While a particular FOIA request may be deemed “vexatious”, there is no legal provision for the ICO to deem a particular individual requestor or group of requestors as “vexatious”.

7. Council Officers are responsible for their actions and must be capable of being held accountable for them. For this reason it is essential that they sign correspondence with their name and job title. As you have done.

Refusal of SBC to respond to FOI requests:

8. You have helpfully confirmed that I am not designated as “vexatious” within the meaning of the policy. However, this then begs the question how can SBC then use the unsubstantiated position that I am a “vexatious” correspondent, to justify withholding FOI requests and refusing to respond to correspondence from me, when I am not in fact designated as “vexatious”.

9. You state that an Information Commissioner’s Office (ICO) Decision Notice supports the Council’s policy towards me. It does not. While a particular FOIA request may be deemed “vexatious”, there is no legal provision for the ICO to deem a particular individual requestor or group of requestors as “vexatious”. The Information Commissioner does not indicate in his judgment that it should be applied to every FOI request received by anyone that writes for the NYE in perpetuity.

Further, in August 2017 I submitted a FOI request to identify what – if any – covert or surveillance operations SBC had initiated under the Regulation of Investigatory Powers Act (RIPA). My FOI request was rejected on the on the basis that it had been designated as “vexatious” under this policy. It therefore came as no surprise to me when Councillor Tony Randerson and Councillor Janet Jefferson very properly and courageously revealed in full council on the 6th of November 2017, that SBC Officers have been using RIPA to intercept Councillors’ emails without their knowledge. In short, SBC Officers had withheld information from the local press that Councillors had a right to know. Thereby preventing exposure of a highly controversial policy they had implemented, without the knowledge or consent of Councillors. Clearly an unsatisfactory state of affairs that the press had a duty to expose.

In my opinion, using the decision notice to justify an indefinite collective punishment against anyone that contributes to the NYE on any subject is excessive and unjustifiable. It also prevents lawful scrutiny by a free press.

10. You have de facto conceded that, contrary to the SBC FOI determination above, the NYE has never stated that its collective aim is to cause “nuisance and disruption” to SBC.

For the avoidance of doubt, the NYE’s stated objective from its website home page is:

“The North Yorks Enquirer is an internet news magazine covering local, regional and some national news. It provides a forum for citizen journalists working in the public interest to expose wasteful spending, malpractice and corruption in authorities around North Yorkshire and beyond.”

It is quite wrong for SBC to concoct statements it claims are made by the NYE, which have no basis in fact, as a reason to withhold responses to FOI requests.

Further, the SBC Director’s Team cannot credibly allege that the collective purpose of all NYE contributors is to cause “nuisance, disruption to service delivery, and distress”, to SBC given that:

  • SBC cannot provide any example of any NYE contributor disrupting or preventing any Council service from being provided, although they have been asked to do so.
  • SBC is unable to specify one example of any Councillor or SBC employee that is alleging harassment, distress or nuisance by any NYE contributor or by myself. No current SBC Councillor or employee has made a complaint to the NYE.
  • Many SBC Councillors across all parties publish articles in the NYE.

11. So far as I can tell, none of the examples of conduct specified in the policy on vexatious correspondents apply to me and I have hardly any contact with SBC Councillors or employees. https://democracy.scarborough.gov.uk/mgConvert2PDF.aspx?ID=12595

12. I have not submitted FOI requests to SBC for years, so contrary to the SBC decision notice my FOI history is in fact innocuous.

13. I am a freelance citizen journalist. I act in isolation from other NYE contributors covering specific topics. I do not participate in meetings or discussions with any other NYE contributors of any sort, or in the editorial policy or management of the NYE. Under these circumstances, SBC cannot hold me collectively responsible for alleged but unsubstantiated actions by other people, that in fact I have no responsibility for.

14. The NYE is a local internet news magazine that covers a wide range of issues including news, crime and politics across several local authorities in North Yorkshire and beyond. Many Councillors and local citizens use it as a vehicle to publish their views on a wide range of local issues. In no way can it be described as a “pressure group”, or “Campaign Group”. The NYE does not cover any one single issue in any campaign. The definition of a Pressure Group is:

“Advocacy groups (also known as pressure groups, lobby groups, campaign groups, interest groups, or special interest groups) use various forms of advocacy in order to influence public opinion and/or policy. They have played and continue to play an important part in the development of political and social systems. Groups vary considerably in size, influence, and motive; some have wide-ranging long term social purposes, while others are focused on and are a response to an immediate issue or concern. Motives for action may be based on a shared political, religious, moral, health or commercial position. Groups use varied methods to try to achieve their aims including lobbying, media campaigns, publicity stunts, polls, research, and policy briefings. Some groups are supported or backed by powerful business or political interests and exert considerable influence on the political process, while others have few or no such resources.”

Pressure Groups are an entirely lawful form of organisation formed by citizens to address one specific issue, at local or national level. There is no prohibition against pressure groups in the Freedom of Information legislation. I am personally not a member of any pressure group or political party.

15. I am not on social media and do not follow it in any way. I cannot therefore have attacked anyone on it. SBC has been unable to specify any example of me “attacking” SBC members or Councillors. I deny “attacking” Councillors or members although I do exercise my right of free speech to lawfully criticise SBC Officers, policies and Councillors. This is a lawful act. In the 1993 case of Derbyshire County Council v Times Newspapers, the Law Lords ruled that it was vital that the public were free to criticise public bodies:

“It is of the highest public importance that a democratically elected governmental body, or indeed any governmental body, should be open to uninhibited public criticism.”

16. I abide by the NUJ Code of Conduct and the NYE allows a right of reply to anyone that feels aggrieved about anything that has been written there. No one from SBC has ever tried to utilise the NYE complaints process. In response to complaints from SBC: in 2013 I asked SBC to particularise similar allegations about our coverage and it chose not to do so. Similarly the BBC also asked for a justification of its complaints and SBC was unable to provide any as shown in this BBC investigation, at 10:00min in:

The wider issues of SBC policy against NYE contributors

Time for a new approach by SBC In summary it appears that the policy SBC has adopted towards me is devoid of any rational basis, other than a determination to supress lawful scrutiny of the Council and its actions, by local citizen journalists.

As outlined above, I believe the SBC policy of ignoring correspondence and FOI requests from me is a throwback to the attempts by SBC to suppress the Real Whitby/NYE investigation into Peter Jaconelli. SBC and Scarborough Conservatives should come to terms with Jaconelli’s offending and accept that he was a pervert. The recent reported comments of Councillor John Nock that “He [Peter Jaconelli] wasn’t like Savile. He was not a predatory paedophile. He was only handing out money to poor kids for giving him a w**k” confirm that they are still in denial. (Councillor Nock denies using this wording, but has not issued his version of what was actually said). Full NYE coverage here .</> .

The NYE has evolved into one of the leading local citizen journalism sites in the UK. It is supported by many SBC Councillors who understand it is an asset to the community to have a free and diverse local media. The Council is being subjected to more effective press scrutiny than it has had before. This is a healthy development that has improved the Council’s profile locally and oversight. It has also exposed corruption scandals like the Peter Jaconelli paedophile-ring.

Conservative Leader Winston Churchill on free speech

Citizen journalism is here to stay.

I also suspect that the hostility and “threat and retaliation” I have had from some SBC Officers and some Councillors is because they have not understood this. I think it is time for a new approach by the Council and your party, but that of course is your decision.

On a personal note, I am sorry we are at issue. I thank you in anticipation of your consideration of my request and look forward to hearing from you in due course.

Kind regards,

Yours sincerely,

Tim Hicks

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