Me, Vexatious? (17/03/15)

Well after a nail-biting wait of 28 days North Lanarkshire Council's response to my FOI Review Request has been underwhelming to say the least.

Not that anything surprises me these days as far as NLC is concerned, except perhaps the lack of pride within the Council which seems terribly reluctant to investigate properly the deliberate removal of key information from a report to the Council's Corporate Management Team dating back to August 2005.

In essence NLC's response to my FOI Review Request has been to say that they don't hold any information about the now notorious CMT report beyond the incomplete details that the Council has already provided.

Not only that the Council goes on to say that they consider my latest requests to be 'vexatious' which is a dangerous road to go down because the last Council to lock horns with me in this way (neighbouring South Lanarkshire) ended up with egg all over its face after a mauling in the UK Supreme Court.

So I shall weigh up my options for a few day and ponder what to do next because North Lanarkshire has a big day coming up on Thursday (19 March) when the Council is due to ratify the Memorandum of Understanding (MOU) on equal pay - at long last.

For the moment at least Thursday's meeting is the most important item on my agenda, but once that's out the way I will be devoting my energies to other things, vexatious or otherwise.

NLC Update (16/02/15)

Here's my latest email exchange with North Lanarkshire Council over the previously secret report to the Corporate Management Team (CMT) dated 11 August 2005.

In my view the Council is still withholding crucial information from this document which relate to the Social Work Department and the steps taken by senior managers to cut the costs of implementing new pay arrangements.

As regular readers know, ultimately these new pay arrangements were introduced in such a way as to favour traditional male jobs over their female colleagues and that's what I am seeking to get to the bottom of in this latest FOI exchange.

Dear June

Corporate Management Team Report - 11 August 2005

I refer to the letter from North Lanarkshire Council's Freedom of Information Coordinator dated 13 February 2015.

I would like to submit the following FOI Review Request in light of the Council's failure to respond to the following specific points in my previous letter dated 4 February 2015.

In the penultimate paragraph of my letter to Neil McKay I requested a copy of the original CMT report submitted by North Lanarkshire Council to the Employment Tribunals and I asked for my letter of 4 February to be considered as a formal FOI request, in this respect. 

The reason this information is potentially very important is that the Council has created the most terrible 'guddle' over what information is actually contained in the various CMT Appendices and I wish to confirm whether or not the Council has been consistent in disclosing information to me, the Employment Tribunal and the Scottish Information Commissioner. 

As you probably know, the Council claimed during a formal investigation by SIC that Appendix 5 of the CMT report was missing but then, all of a sudden, the document was found although, by this time, the Council had decided that Appendix 5 was really Appendix 4, and that Appendix 4 was really Appendix 5. 

In any event I believe that having sight of the information as provided by the Council to the Employment Tribunals will help clear up this confusion which is why I submitted a new FOI request on 4 February 2015.

For example, Appendix 5 (or 4) is supposed to be an analysis of the movement off the 'green circles', i.e. the reductions in the projected cost of the green circles, but this information is missing from the Appendix. Whether the Appendix is numbered  5 or 4 is really beside the point because the more far important issue is that the contents of the Appendix are not being properly disclosed and, in my view, the Council has a duty under FOISA to explain itself. 

In my letter to Neil McKay I also made reference to Appendix 5 and Appendix 7 of the CMT report because important financial information has clearly been redacted or selectively removed. For obvious reasons, this vital data must have been included in the report when the document was originally considered by the CMT on 11 August 2005. 

In his letter dated 13 February 2015 Neil McKay says that "the Council does not hold any further information relative to the CMT report other than that which has already been provided to you", but this cannot possibly be true because the original financial information must have come from the Council's Finance Department which would hold and retain this data independently. 

So, I simply do not believe that the information I have requested cannot be retrieved from the Council's data systems and in light of the mess the Council created previously over the 'missing' Appendix 5 (or 4) I would ask that you look at this matter again very carefully.

In my view I have no need to submit a further FOI request in respect of Appendix 5 and Appendix 7 because the Council is already the subject of a disclosure order from SIC in relation to the CMT report and I would expect the Council to be as helpful as possible in providing the missing information, as required by the disclosure order and in light of the Council's wider obligations under FOISA. 

If the missing data in respect of Appendix 7 and Appendix 7 cannot now be provided, I would expect a full and proper explanation as to why this information is no longer held by the Council's Finance Department.

As to the reasons why certain information is missing from the CMT report, I do indeed believe that the Council should be investigating how this happened and who is responsible for removing information from an official and hugely significant Council document.

I fully accept that such an investigation is beyond the scope of FOISA, but that does not make it any less necessary or desirable from the standpoint of good governance and as this information certainly seems to have been removed deliberately, the question arises as to whether there has been 'misconduct in public office' which is why I asked in a previous communication whether the Council had involved Police Scotland. 

I have dealt with many Scottish councils in my time and if I were a chief official in North Lanarkshire (or an equal pay claimant) I would certainly wish to know why specific parts of the CMT report are missing, especially as the information involved relates to the Social Work Department where the largest single group of equal pay claimants is based.  

If North Lanarkshire does not now vigorously investigate these matters and fails to hold those responsible to account, I suspect it will further damage the Council's credibility in the eyes of the public, but this of course does not amount to a valid reason for refusing the release the information which I have requested under FOISA.

I look forward to you reply and would be grateful if you could respond to me by email at: markirvine@compuserve.com

Kind regards

Mark  

Dear Mr. Irvine

Request for Information

I refer to your email of 4^th February 2015.  As you know, the Freedom of Information (Scotland) Act 2002, provides a right for individuals to request recorded information which is held by local authorities.  This being the case and with reference to the parts of your email that can be interpreted as a request for recorded information, I can advise in terms of Section 17 of the Freedom of Information (Scotland) Act 2002 that no further recorded information is held relative to the CMT report of August 2005 other than what has already been provided to you.

The remainder of your email, in my opinion, seeks an historical explanation of how information came to exist. Further, your email pre-supposes that where information is stated as not held; where it is held but it is not to your expectations; or where information is in your opinion deficient in some way to the purpose for which it was created and used by the authority, that an explanation exists for these perceived shortcomings and that this explanation is being with-held from you, deliberately or otherwise. I refer to the sentence in your email:

“Again in Appendix 7 the same financial information relating to Social Work is missing which I find quite extraordinary. I cannot believe the Council's Corporate Management Team approved a report with such a serious omission in the financial data, so I can only conclude that the details were again removed at a later date which raises the same questions: when, why and by whom??”

Rather than making a request for information, what you are seeking is to compel the authority to conduct an investigation, the parameters of which are entirely determined by you, and resting entirely on pre-suppositions held by you. This extends beyond what the Freedom of Information legislation entitles you to request of a public authority, and it has not therefore been treated as a valid request for information.

I wish to be clear that should you wish to make further valid requests for information then these will be assessed by the authority against the applicable legislative background.

I can advise that North Lanarkshire Council, having regard to the provisions of Section 21 of the Freedom of Information (Scotland) Act 2002, has established a procedure whereby any person who has requested information and is in any way dissatisfied with the decision on that request, can within forty working days require a review of that decision by writing to the Executive Director of Corporate Services, Civic Centre, Windmillhill Street, Motherwell ML1 1AB.  Accordingly, if you are dissatisfied with this decision and seek such review please write to the Executive Director of Corporate Services.

I would advise, also, that in terms of Section 47 of the Act a person who is dissatisfied with a notice given by the local authority under Section 21 of the Act - ie. a notice following a review of a decision by a local authority, or by the failure of a local authority to give such a notice - may make application to the Scottish Information Commissioner for a decision as to whether, in any respect specified in that application, the request for information to which the requirement relates has been dealt with in accordance with the Act.  Such an application must be in writing or in another form which, by reason of it having some permanency is capable of being used for subsequent reference - for example a recording made in audio or video tape - must state the name of the applicant and an address for correspondence and must specify the request for information to which the requirement for review relates, the matter which gave rise to the applicant’s dissatisfaction with the original decision of the local authority and the matter which gives rise to the applicant’s dissatisfaction with the decision on review by the local authority or the failure of the local authority to issue such a decision.  

The Scottish Information Commissioner can be contacted as follows:-

Scottish Information Commissioner

Kinburn Castle

Doubledykes Road

St. Andrew’s

KY16  9DS

I hope this information is sufficient for your purpose.  If, however, you require further information – or I can assist in any other way – please let me know.

Yours sincerely

Neil McKay

Freedom of Information Co-ordinator

Democratic and Legal Services

North Lanarkshire Council