SBC Legal Attempts Enquirer Smear
- an “In My View” article by NIGEL WARD, reporting on those questionable ‘Dispensations’ and the way in which SBC has used its response to a Freedom of Information request to attempt to smear me – and all who question the integrity of certain Councillors and Officers.
Readers who have followed the tortuous saga of the Motion of No Confidence in the SBC Leader and his Cabinet, culminating in the nine implausible ‘Dispensations’ that allowed the Cabinet, the Leader and his spouse to vote on the Motion despite their incontrovertible personal, prejudicial and pecuniary interests in the outcome – such was their fear of defeat in a truly run poll – will be unsurprised to learn that all hope of transparency regarding the authenticity of the ‘Dispensations’ has given way to the customary defensive/aggressive smear tactics of a morally-bankrupt SBC Legal Department solicitor who lacks the courage to apply her/his name to the response to my Freedom of Information request seeking evidence of the alleged legal advice regarding the ‘Dispensations’.
I should explain that my request was, in fact, prompted by elected members whose declared expectation was that the truth would be determinedly concealed. They were not mistaken.
Clearly, the chances of an open and transparent response were always less than zero, given that requesting ‘legally privileged’ information was susceptible to (i) an invocation of s.42 of the Act – and/or (ii) that old chestnut the “vexatious” label.
According to ICO Guidance, s.42 of the Act permits authorities to withhold certain information if – and only if – litigation is in progress, which it is not (unless that is another well-kept secret), but does not require them to do so. The Guidance states:
Section 42 applies to information that would be subject to legal professional privilege if litigation were in progress. Legal professional privilege covers confidential communications between lawyers and clients and certain other information that is created for the purposes of litigation. Section 42 ensures that the confidential relationship between lawyer and client is protected.
Section 42 is subject to a public interest balance.
For emphasis, I have highlighted the key phrase – “if litigation were in progress”. But there is no claim or assertion in this FOIA response that litigation over the ‘Dispensations’ is in progress – and this, I suspect, is for the simple reason that there is no litigation in progress concerning the ‘Dispensations’, and therefore no merit in the application of s.42.
On a matter of such conspicuous public interest, it should not be too much to ask that this Council (or, at any rate, any Council with nothing to hide) might consider it a golden opportunity to demonstrate its commitment to openness and transparency.
In short, the response is a flagrant abuse of s.42 of the Act.
Nevertheless, one can often learn a good deal from the way in which information is not disclosed.
My request sought disclosure of the correspondence between Monitoring Officer Mrs Lisa DIXON and Bevan Brittan LLP (who allegedly provided external legal opinion upon the basis of which the Monitoring Officer ‘granted’ the ‘Dispensations’). It should be noted that such legal opinion is just that – an opinion; nothing more. It is not law and provides no legal authorisation for the granting of ‘Dispensations’. All that it could provide is an opportunity for Lisa DIXON to do as she pleases, having established a suitable party to whom the buck could sibsequently be passed.
This begs the question; what was the motivation for Lisa DIXON to engineer an apparent justification for allowing the nine to vote in their own favour despite being conflicted by their personal, prejudicial and pecuniary interests in the outcome? One hand washes the other?
Interestingly, the Monitoring Officer did not inform the Proposer, Seconder and three other signatories to the Requistion that applications for ‘Dispensations’ were being considered; it was lobbed into the No Confidence Meeting on the day, as a curveball fait accompli – with all the openness and transparency of a brick wall. As the saying goes, it “came to court with unclean hands”.
The Information Commissioner’s Guidance to authorities on how to respond to FOIA requests is too lengthy to reproduce in its entirety and, in any case, we are concerned here with only a very small (though fundamental) part of it. The Guidance states:
It is interesting to note that that this present FOIA response fails to comply with both (i) the first of these duties – “to let the requester know whether you [the Council] hold the information”, and (ii) the second duty, “to provide the information”.
So, for all we know, the requested information may not even exist – that is to say, the Monitoring Officer may not have solicited the opinion of Bevan Brittan LLP regarding the legality of the ‘Dispensations’ allowing the Leader, his spouse and his Cabinet to vote on the No Confidence Motion.
Of course, that would show Lisa DIXON to be extraordinarily disingenuous – just as the BBC demonstrated to nearly a million viewers, back in 2014.
There have been other, more recent examples – two in Full Council on 9th & 17th January this year, regarding the allegedly non-existent covenants applicable to the Futurist Theatre – covenants which are now a matter of common knowledge:
I published the Land Registry confirmation of the existence of the covenants which Lisa DIXON claimed to have been unable to discover on 20th January 2017, under the title “Dispatches from the Swamp”. Here is the email response from the Land Registry to a member of the public who subsequently forwarded it to me:
But returning to the FOIA response in question, we come now to the confusion (deliberate or otherwise) over the application of the description “vexatious”, which may only be applied to the request, and not to the requester – as confirmed by the ICO Guidance:
Invocation of the “vexatious” grounds for refusal is, notoriously, the last-ditch refuge of authorities seeking to withhold information which would cause serious embarrassment to Officers and/or Councillors. It is an abuse of the letter and the spirit of the Freedom of Information Act 2000.
So now let us take a look at the ‘reasons’ provided by the anonymous representative of ‘the Council’ for refusing my FOIA request.
Not only are these ‘reasons’ entirely spurious, they are nothing less than a shabby attempt to smear me and discredit everyone else in the Borough who has expressed dissatisfaction with the performance of the Leader and his Cabinet (and, in the case of Filey Town Council, the Chief Exec – Mr Jim DILLON):
Let us examine this fanciful catalogue of nonsense on a point-by-point basis, not one of which has the slightest merit or relevance:
1) The last time I lodged a Freedom of Information request with Scarborough Borough Council (check it out on WhatDoTheyKnow.com) was over three years ago on 24th June 2014 – they dodged it – and, three years down the road, it is STILL awaiting Internal Review. I wanted to know whether or not SBC had funded Whitby “Totally Locally”:
How “vexatious” a history is that? And by the way, my suspicions were confirmed and the individual who was running Whitby “Totally Locally” was subsequently charged with theft, so I can hardly be accused of having lodged a frivolous or “vexatious” request of no public interest – unless an alleged theft from public funds is of no public interest. And, bearing in mind that we have already seen that it can only be a request that may merit the term “vexatious” – not the requester – what possible legitimate excuse can there be for this catalogue of personal abuse and attempted character assassination?
2) “those who are part of the same pressure group” – this can only refer to Whitby Town Council, Filey Town Council, 19 present Councillors and the 2,473 members of the public who signed the No Confidence petition (not forgetting Councillors and former Councillors who have contributed to the publication of numerous exposés; all of whom who are thoroughly dissatisfied with, and strenuously seek the replacement of, the present Leader and Cabinet. Besides, there is nothing discreditable (much less unlawful) about “pressure groups” (it was, after all, a “pressure group” that, after 23 years, achieved justice for the families of the Hillsborough 96). One might have expected that even the duffers in the Town Hall might have noticed that a political party is a form of “pressure group”.
3) The so-called “continuing attacks upon Members and Officers of the Council” presumably refers to individuals who, having been scrutinised in depth in the Enquirer, were found wanting – including, for example, the ersatwhile Conservatave Councillor who was forced to resign and was subsequently investigated by the North Yorkshire Police, who (surprise, surprise) established that although a criminal offence had been committed, they would not prosecute on the risible grounds that there had been “no criminal intent”. Or perhaps this FOIA response refers to the Ben MARRIOTT allegations of fraud and corruption (first reported in the Enquirer in August 2013), the Council’s internal investigation of which was pronounced “a complete whitewash” by Judge Humphrey FORREST. The MAZARS report will now doubt be another “complete whitewash”. Again, some of the culprits have already been named in the Enquirer. Quite how the frequent exposure of wrongdoing could be construed as “continuing attacks upon Members and Officers of the Council” lies beyond my comprehension.
Yet clearly, somebody at Scarborough Borough Council resents the exposure of criminality within the Council. I leave it to readers to speculate as to who that could be and why that it should be so. As one Councillor said to me, just a few days ago, “There are those who fear their days in office are numbered, Nigel. And you know what?- they’re right to fear.”
4) This is little more than a duplication of the previous round of smoke-and-mirrors – see (3) above – re-iterating the allegation that the so-called “attacks” attributed to me personally were also the work of “those who are part of the same pressure group through use of your [my] group website and social media”. But the Freedom of Information request was lodged by me, and me alone – not by any “pressure group”. And since when has it been acceptable to characterise scrutiny and valid criticism as “attacks”?
For the avoidance of any doubt, I am not the owner, webmaster or editor of the North Yorks Enquirer, or indeed any “group website”, nor am I responsible for the activities on social media of the 2.5K+ individuals and statutory bodies who have sought and continue to seek the replacement of the present Leader, Cabinet and Directorate. They are not members of any “group”, and neither am I – unless everyone who supports openness, transparency and honesty in local government can be said to belong to a “group”.
The only “group” in this scenario is the public at large.
5) This last slur is pure fiction. Show me where this imaginary “group” has ever collectively stated anything – much less “the aim to cause nuisance and disruption to the Council”. This is a malicious lie and a deliberate and desperate attempt to smear me and anyone else who aspires to a better, more open and transparent brand of democracy – devoid of narcissists, distorters, manipulators, liars, cheats and self-servers. I take issue not with this Council as an institution – a body corporate – but with a handful of parasites who have hi-jacked it for their own self-aggrandisement and personal advantage.
What this despicable litany of falsehoods really demonstrates is that within the controlling junta at Scarborough Borough Council a burgeoning sense of fear is now manifesting itself – the fear of being found out.
This is because they know that they have lost the hearts and minds of the electorate.
In the Court of Public Opinion, the verdict has already been returned.
Numbered amongst the many thousands of Enquirer readers are over a dozen Councillors and former Councillors who openly ‘like’ and ‘share’ Enquirer publications all over social media precisely because there is more truth and transparency to be found in each and every individual article on the Enquirer than in a whole year of sketchy Council Minutes and paltitudinous Press Releases.
So let there be no mistake; what this malicious FOIA response really signifies is that the crumbling oligarchy is all too aware that the jig is just about up.
Finally – and before some whingeing, semi-literate, double-chinned insomniac saddo complains that the Enquirer, too, engages in smear tactics – allow me to point out that the Enquirer always publishes the evidence to support its criticisms and assertions. Always. Check it out.
Check out the Enquirer’s 1,300 publications covering, inter alia; liars, racists, paedophiles and paedo-apologists, fraudsters, known associates of drug-dealers and other criminals – and never a single libel action in seven years.
And please review some of the comments posted by Joe Public on the GoPetition that started the whole No Confidence saga – then ask yourself if the cheap slurs and unsubstantiated allegations that have been gratuitously smeared all over this FOIA response reflect the true nature of the Enquirer and the voluntary work it performs, in the public interest – or is it the desperate defensive/aggressive knee-jerk response of an adminstration that has lost all sense of public service and could not look more shifty if it tried.
You will see that my colleagues and I have published criticism that accurately reflects the views of the thousands of residents who take an informed interest in the performance of this Council under this deplorable regime, and differs only in that the Enquirer puts up the evidence: