Monday 20th August 2018,
North Yorks Enquirer

SBC and RIPA

SBC and RIPA

by TIM HICKS

Introduction

I read with great interest the press release by Mr Hugo Fearnley, the Labour Prospective Party Parliamentary Candidate for Scarborough & Whitby in the next General Election, concerning the “Whexit” controversy, which was published in the NYE.

In his press release, Mr Fearnley complains of a lack of responsiveness to local concerns and a lack of fairness by the Conservative-dominated Scarborough Borough Council (SBC).

Because of the voting preferences of the area, the Conservative Party has been routinely returned to control of Scarborough Borough Council (SBC). It is also supported by some independent Councillors and consequently does not have to court its electorate in order to retain control of the Council.

As a result, I believe that SBC Conservative Councillors have become autocratic, ignored local concerns, resented criticism and press oversight, and adopted an aggressive policy towards those that criticise them. An example of this is the way SBC tried to close down the Real Whitby Magazine in 2013, because it had criticised SBC Councillors, even though it was the only dedicated media outlet for Whitby at the time.

Another example is the SBC policy of intercepting Councillor’s emails and designating anyone that contributes to the NYE as “persons who are causing and have caused nuisance and distress”. (This presumably now includes Mr Fearnley).

Regular NYE readers will be aware that I have engaged in correspondence with SBC Leader Councillor Derek Bastiman (Conservative) to try and obtain a resolution of this situation. NYE coverage including my correspondence can be read here

SBC’s reply

I have received Councillor Bastiman’s reply to the above correspondence and it is below:

“Dear Mr Hicks

Thank you for your emails.

The email you received in relation to your FOI request is not an email that I have sent you. This email was sent to you by the Council’s FOI section. 

There appears to be some confusion between what are two albeit interlinked but separate processes. One being the statutory framework under the Freedom of Information Act 2000, and the other being the operation of the Council’s Policy for dealing with ‘unreasonably persistent’ and ‘unreasonable’ complaint behaviour.

As stated previously, it is the Council’s position that the collective actions and behaviour of persons who contribute to the NYE website are causing and have caused nuisance and distress. You are an active member of the NYE, and as such are involved with those collective actions. There is no blanket policy that requests under the FOIA from persons involved with the NYE will be treated as vexatious. It is also worth pointing out that under the FOIA it is the request that can be designated as vexatious, not the person making that request. Any request from a person involved with the NYE is considered on its own merits whilst also taking into account relevant context and the Council’s position outlined above, following which a decision is made in relation to that request. I refer again to the Information Commissioner’s decision notice which provides clear independent support of the Council’s position: https://ico.org.uk/media/action-weve-taken/decision-notices/2015/1433042/fs_50550297.pdf

 The Council’s Policy for dealing with ‘unreasonably persistent’ and ‘unreasonable’ complaint behaviour is a separate matter, and under which an individual can be determined as being an unreasonable complainant. Before the Council makes such a determination, the individual is warned about their behaviour and is informed about what measures may be put in place should they continue to act in an unreasonable manner. This Policy derives from the Local Government Ombudsman. As I have stated previously, you have not been declared as an unreasonable complainant under this Policy. 

I hope that this clarifies matters for you.

I am satisfied that I have explained this position to you fully and will not be engaging in further correspondence about this matter.

Yours sincerely

Cllr Derek Bastiman

Leader of the Council

Scarborough Borough Council

Town Hall, St Nicholas Street

Scarborough, YO11 2HG”

It appears the Council is using an Information Commissioners Decision from October 2015 relating to one individual to justify ignoring FOI requests and correspondence from a group of people it has collectively defined as “vexatious”. Obviously to prevent anything appearing in the local media. In my opinion this extends the impact of the Information Commissioner’s Decision far beyond its intended remit.

SBC and RIPA

Responding to Councillor Bastiman’s remarks above: On a point of fact, I am not a “member” of the NYE. The NYE has no membership. It is an internet news magazine and only has contributors, not “members”. I am a frequent contributor and cover the crime desk. I am a freelance journalist, a member of the NUJ and abide by its code of conduct. I do occasionally comment on Council issues. There can therefore be no basis for asserting that I cause nuisance or distress to Councillors or Council employers, although I do occasionally criticise SBC. No Councillor or Council employee has made a complaint about me as far as I am aware.

It concerns me that the entire saga of SBC’s relations with local internet news magazines, citizen journalists and those that have complained about SBC is contaminated with falsehood and an aggressive “zero tolerance” policy towards those that criticise SBC:

  • In 2013, SBC tried to close down Real Whitby. When challenged by the BBC, SBC denied doing this and was exposed on the BBC. BBC investigation here.
  • Also in 2013, SBC threatened the “Whitby Four” (Glenn Kilpatrick, Tim Thorne, Nigel Ward and myself) with prosecution for harassment. When invited to justify their allegations with specific examples, it was unable to do so. BBC investigation here at 11.29.
  • NYE contributor Tim Thorne has asserted that he was put under email interception shortly after he asked SBC which Councillors voted to bestow the honorary alderman award on notorious Scarborough paedophile Peter Jaconelli, who was part of Jimmy Savile’s Scarborough Ring.
  • I have alleged that SBC is pursuing this policy against me because I played a leading role in exposing former Conservative Councillor and Mayor of Scarborough – Peter Jaconelli as a rapist and a paedophile – thus damaging the political interests and reputation of the Conservative Party in Scarborough. Predictably, Councillor Bastiman has not commented on this in his email quoted above.
  • Former Councillor Mike Ward has confirmed that SBC Officers were covertly intercepting and reading his emails because he was corresponding with NYE contributor Nigel Ward over the Jaconelli and Marriott scandals. Article by Mike Ward in which he deplores the lack of openness in SBC here.

  • To justify its refusal to respond to FOI requests, SBC has alleged that the NYE is a “Pressure Group”, and that its stated aim of the NYE is to cause nuisance and disruption. This has no basis in fact. The NYE is an internet news magazine and has never stated that its aim is to cause nuisance or disruption. It is not a Pressure Group and covers a very wide range of local issues.
  • SBC Solicitor Mr David Kitson recently admitted in full Council that Council Officers had used its powers under RIPA to intercept Councillor’s e mails without their knowledge. The legality and proportionality of this has been challenged elsewhere in the NYE and by Councillors. Quoted in the Guardian, Lib Dem spokesperson Lord Paddick has stated “As with any legislation, there is a significant risk that authorities will use powers in a way that parliament never intended”. This would seem to be a case in point.
  • SBC Officers refuse to respond to correspondence, which allows SBC it to evade its duty to be accountable and transparent for its actions. Council Officers also issue correspondence anonymously without signing it, which means in real terms that they cannot be held responsible for what they write and their actions more generally. I raised both of these issues with Councillor Bastiman and he has chosen not to respond.
  • Councillor Bastiman’s letter above was obviously drafted by a lawyer and the use of the term “distress” is not accidental. The statutory definition of criminal harassment contained in Section 7 of the Protection from Harassment Act 1997, specifies that anyone who causes “distress” to another person is committing an offence of harassment. The threshold for an allegation of criminal harassment to be made is anything that causes the alleged victim alarm or distress. This threshold is so low, that just about any act can be sufficient to give rise to a criminal offence. The NYE has a policy of allowing local people to write in it and have their views published. Many people including seven Councillors from the Labour, Independent, Green and Conservative Party groups also write for the NYE on Council issues. Under this approach, all of them have been deemed by the Council to be collectively harassing Councillors and Council employees. This brings them all within the remit of criminal law and the Council’s powers under the Regulation of Investigatory Powers Act.

The FOI request that I submitted, which SBC refused to respond to because it alleged it was “vexatious”, concerned the Council’s use of the Regulation of Investigatory Powers Act:

Please can you confirm:

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

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

4.2. The reason for using the powers e.g. suspected Tax fraud and the duration of the surveillance.

How can it be “vexatious” to ask these questions of a public body in a democratic society?

SBC will not respond to a simple and courteous FOI request from a local journalist concerning a topical local issue that has been covered in other local media and the national press. It is clear that, contrary to Councillor Bastiman’s assurances, this request has not been “considered on its merits”.

Why is that?

The only credible reason for SBC’s refusal that I can think of is that SBC has used its powers under RIPA on contributors to the NYE and does not want to admit it.

The wider issue

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.”

The presence of a free and independent local press that is open and available to local people is important and an asset to the Borough. This will on occasion result in SBC being criticised in the local media. I can understand some Councillors and Council Officers resenting this and getting a bit hot under the collar about it. But that is part of life in a free and democratic society. Most Councillors are robust, mature individuals and understand that.

The impression gained is one of a local government organisation that is staffed with unelected, autocratic officers and which does not recognise any duty to be accountable or fair in its dealings with its electorate – essentially the same point that Mr Fearnley made in his press release above.

If the Council has any concerns about harassment, it can deal with them through the Council’s formal policy on harassment that exists specifically for this purpose. A policy of ignoring FOI requests from anyone that writes for the NYE because SBC deems them to be members of a “Pressure Group” which harasses Councillors and Council employees is unjustifiable. It is obviously a convenient pretext to:

  1. Justify withholding information the electorate are entitled to know, which restricts journalists ability to hold SBC to account, stifles legitimate criticism and prevents lawful scrutiny of the Council. It is essentially an attack on freedom of speech and democratic accountability. Witness the Marriott scandal, doggedly pursued by fellow NYE contributor Nigel Ward.

  1. Bring anyone that dares criticise SBC or submit a complaint within the remit of criminal law and SBC’s powers under RIPA, and allow SBC Officers to covertly intercept Councillor’s communications.

The wider potential for misuse of RIPA by Councils

At the end of the day, the decisions on designating people as “vexatious”, using RIPA, initiating prosecutions for harassment and refusing to respond to FOI requests are approved by local politicians from the ruling party of a Council. They have a political interest in this.

This power is unregulated by an impartial person, is secretive and open to abuse for party political purposes.

Refusing to provide information that could result in media criticism, only serves the political interests of the ruling party – not those of the electorate.

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