North Lanarkshire Update

Here is the exchange of correspondence with North Lanarkshire Council which led to my successful FoI appeal to the Scottish Information Commissioner (SIC) who flatly rejected the Council's argument that my information requests were 'vexatious'.

Now North Lanarkshire is left with egg all over its face, yet again, but the more serious point is that the senior council officials behind these dumb decisions have succeeded frustrating and delaying the FoI process for the best part of a year, especially as they now have until May 2016 to provide a proper response to my original information request.

I have no doubt that if an ordinary council employee (i.e. one lower down the food chain) had performed so poorly and been overturned yet again by an independent referee, there would be hell to pay and the prospect of disciplinary action to boot.

Yet in Labour-run North Lanarkshire the most senior council officials seem to be a law unto themselves which is evidenced by their ridiculous performance-related bonus scheme that continued to operate when the rest of the workforce was subject to a policy of public sector pay restraint.

More to follow on the SIC decision in the days ahead.



-----Original Message-----
From: markirvine
To: markirvine
Sent: Mon, Aug 31, 2015 4:41 pm
Subject: FOI and NLC

Dear June

FOI Review Request

I refer to the attached letter from North Lanarkshire Council's Freedom of Information Coordinator dated August 21 2015 and would like to submit an FOI Review Request for the following reasons.

1 The Council's response offers no evidence as to why my 3 FOI requests are being treated as 'vexatious'. No reasons are given as to what NLC regards as 'vexatious' insofar as the volume or complexity of my FOI requests are concerned, nor is there any explanation as to which particular straw has 'broken the camel's back'. 

2 I am not aware of any significant 'spike' in either the number or complexity of recent FOI requests and so I would completely reject the assertion that these requests amount to an unreasonable burden on the Council. 

3 Indeed if the Council had responded to my earlier FOI requests from June 2015 in a more helpful manner, by explaining that this information was available online in the NLC annual accounts, then we could all have saved some time and effort. As things turned, out a helpful albeit anonymous council official pointed me in the direction of the NLC web site, quite separately to the FOI process, and before the Council responded officially via Gerard Gardiner, its Principal Solicitor.

4 In any event, I believe would take no more than 15 minutes for an appropriate official from the Finance Department of the Council to gather the information I requested, as this must be readily available in the background papers used to prepare the NLC annual accounts. In other words all I am seeking is a breakdown of previously collated and published data, so there cannot possibly be any original or time consuming work involved. 

5 As such I regard the Council's stated reason for rejecting my 3 FOI requests as bogus and an abuse of the FOI process. In the circumstances I would invite you to agree with me that a proposition 'asserted without evidence can be rejected without evidence', given the sheer paucity of the case put forward by NLC's Freedom of Information Co-ordinator.

6 However, in view of the fact that my original FOI request could well be the subject of a future appeal to SIC (Scottish Information Commissioner) I would like to comment further on the 3rd and 4th paragraphs of NLC's initial response, the key parts of which are reproduced below for easy reference:

"This is compounded by blog posts on your website regarding responses sent to your requests which often go beyond what I would consider to be reasonable criticism. Your blog posts have on occasion inferred an intention to conceal information on the part of Council officials, in effect an allegation of deceit."  

"The Council acknowledges that there is an inherent public interest in the issue of Equal Pay and the remuneration of Senior Council Officials and is why the Council has provided responses to all of your previous requests on these matters. That said, and with regards to your recent requests and blog posts on your website, the main purpose of these requests appears to be pursuing an argument with the Council rather than obtaining recorded information, particularly given the substantial amount of information that has already been provided to you."

7 Now I think it's fair to say that NLC's handling of equal pay has not been a model of 'openness and transparency' over the years. I would also say that I have played a significant role highlighting the problems with the Council's pay arrangements which, as you know, resulted in a multi-million pound settlement to several thousand NLC equal pay claimants earlier this year.

   

8 The 3 recent FOI requests all relate to ongoing pay arrangements within the Council and, in particular, the remuneration and pension benefits package of the chief executive which has a knock-on effect to the pay of other senior council officials, as we both know, since an employee's pension benefits clearly amount to deferred pay.

9 The purpose of my 3 FOI requests is to establish whether the CEO's remuneration package includes an element of 'performance pay' because the Council has previously stated that its performance pay bonus scheme for chief officials was abandoned in 2014, partly as a result of my criticism of the scheme vis a vis other council staff who have been subject to a policy of public sector pay restraint for several years.

10 My assessment of the CEO's remuneration package and/or retirement benefits is that these do indeed include an element of performance pay which the Council claims to have ended in 2014. Yet this cannot possibly be true if the CEO's future retirement benefits are being boosted by a previous performance element which no longer exist, according to NLC.  

11 Separate to the issue of chief officials pay is the wider public interest question of the Council's ability to justify 'good' performance bonuses when NLC and its senior officials has made such a terrible mess of equal pay in recent years. So, in my view, the real reason for the Council's hostility to my 3 FOI requests lies in the sensitivity of chief officials to my public criticism of their performance 'bonus' scheme and my public comments about NLC's handling of equal pay for the past 10 years, which I believe to be perfectly fair comment.  

12 I raised this very matter with the Council's Principal Solicitor, Gerard Gardiner (a chief official, I suspect) following his letter to me of 10 July 2015 which included the following rather menacing statement:     

"The entirely unfair imputation of character of Council Officers which can be inferred from your blog post will be borne in mind in respect of future requests for information."    

15 In my response to Gerard Gardiner I said that his comments were quite inappropriate and unprofessional, and that I was considering whether to raise my concerns with the Scottish Information Commisioner (SIC). I saw no purpose in raising the matter elsewhere within the Council since he (i.e. GG) seemed to be speaking on behalf of all the other chief officers in NLC, in a manner not unlike a union 'shop steward'. 

16 In any event while I can understand why some chief officials in NLC may not best pleased at my criticism of their performance that is no reason, in my view, to reject my recent FOI requests as vexatious, especially when they are raising matters of obvious and ongoing public interest.

17 I would also point out that I have never received any direct representations from NLC outside of the FOI process, taking issue with my comments on the blog site and requesting a 'right of reply', for example. To my mind, that would be the correct way for Council to proceed instead of trying to use the FOI process as a means of taking revenge. 

I would, therefore, invite you to uphold my FOI Review Request and respond to me by email to: markirvine@compuserve.com

Can I also ask you to confirm that Gerard Gardiner will play no part in the review process as I believe, by his previous comments, Gerard has demonstrated his inability to approach the subject with an open and objective mind.

Kind regards

Mark Irvine

Enclosures

1 FOI requests x 3

2 Initial response from NLC

3 Previous exchange of emails with Gerard Gardiner     

-----Original Message-----
From: McKay Neil <McKayNe@northlan.gov.uk>
To: markirvine <markirvine@compuserve.com>
Sent: Fri, Aug 21, 2015 5:00 pm
Subject: Requests for Information

Dear Mr Irvine

Request for Information 

I refer to your Freedom of Information requests sent to the Council on 23 July, 13 August and 14 August 2015, all of which seek information relative to the remuneration of North Lanarkshire Council’s Chief Executive.

As you may know, Section 14(1) of the Freedom of Information (Scotland) Act 2002, provides that a public authority is not obliged to comply with a request for information if the request is vexatious, and with regards to your three requests, I consider them to be vexatious in terms of Section 14(1) of the Act.

In coming to this conclusion, I have had regard to guidance provided by the Office of the Scottish Information Commissioner which states that a history of an applicant’s dealings with a public authority may be relevant in determining whether a request is vexatious. Against this background, I have taken account of the extensive previous and ongoing correspondence received from you and have concluded that responding to your requests is imposing a significant burden on the resources of the Council.

In addition, the volume and frequency of your requests, with each response issued leading to further requests, is having a harassing effect on Council staff who respond to them. This is compounded by blog posts on your website regarding responses sent to your requests which often go beyond what I would consider to be reasonable criticism. Your blog posts have on occasion inferred an intention to conceal information on the part of Council officials, in effect an allegation of deceit. Internal review mechanisms exist in regard to the Council’s responses to your requests for information. There is also eventual recourse to the Scottish Information Commissioner and the Courts. In circumstances where your right to access recorded information is protected by multiple layers of recourse, such unfortunate public commentary on your part would in my opinion be concluded as apt to distress the reasonable person tasked with responding to your subsequent requests for information.

The Council acknowledges that there is an inherent public interest in the issue of Equal Pay and the remuneration of Senior Council Officials and is why the Council has provided responses to all of your previous requests on these matters. That said, and with regards to your recent requests and blog posts on your website, the main purpose of these requests appears to be pursuing an argument with the Council rather than obtaining recorded information, particularly given the substantial amount of information that has already been provided to you.

I appreciate that this decision will disappoint you, however, 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

Yours sincerely

Neil McKay

Freedom of Information Co-ordinator

Democratic and Legal Services

North Lanarkshire Council 

Civic Centre

Windmillhill Street

Motherwell

ML1 1 AB

Tel : 01698 302 484

FOI Request dated 23 July 2015

-----Original Message-----
From: markirvine <markirvine@compuserve.com>
To: whitefieldg <whitefieldg@northlan.gov.uk>
Sent: Thu, Jul 23, 2015 5:52 pm
Subject: FOI Request

  23 July  2015

Gavin Whitefield

Chief Executive

North Lanarkshire Council

BY E-MAIL TO: whitefieldg@northlan.gov.uk

Dear Mr Whitefield

FOISA Request 

I would like to make the following request under the Freedom of Information Scotland Act 2002:

1 I refer to North Lanarkshire Council's Annual Accounts for 2014/15 and specifically the section dealing with 'Exit Packages' on Page 85. 

2 Please provide me with a breakdown of the cost of the Exit Package on that page which is reported as costing a total of £218,000. 

3 In doing so please explain why the £218,000 figure is so much higher than the cost of the pension lump sum due to the Council's chief executive which is reported on Page 85 of the same document as £196,220 (excluding an annual pension of £79,300).

I look forward to your reply and would be grateful if you could respond to me by e-mail to: markirvine@compuserve.com

    

Kind regards

Mark Irvine

FOI Request dated 13 August 2015

-----Original Message-----
From: markirvine <markirvine@compuserve.com>
To: whitefieldg <whitefieldg@northlan.gov.uk>
Sent: Thu, Aug 13, 2015 2:28 pm
Subject: FOI Request

  13 August    2015

Gavin Whitefield

Chief Executive

North Lanarkshire Council

BY E-MAIL TO: whitefieldg@northlan.gov.uk

Dear Mr Whitefield

FOISA Request 

I would like to make the following request under the Freedom of Information Scotland Act 2002:

1  I refer to North Lanarkshire Council's Annual Accounts for 2014/15 and the section dealing with the remuneration of NLC chief officials . 

2 Please provide me with a breakdown of the chief executive's annual remuneration package which is reported as  £149,524 in 2013/14. 

3 Please confirm whether the CEO's remuneration package included a 'performance bonus' element and if so, the amount involved.

I look forward to your reply and would be grateful if you could respond to me by e-mail to: markirvine@compuserve.com

    

Kind regards

Mark Irvine

FOI Request dated 14 August 2014

-----Original Message-----
From: markirvine <markirvine@compuserve.com>
To: whitefieldg <whitefieldg@northlan.gov.uk>
Sent: Fri, Aug 14, 2015 10:27 am
Subject: FOI Request

   14 August    2015

Gavin Whitefield

Chief Executive

North Lanarkshire Council

BY E-MAIL TO: whitefieldg@northlan.gov.uk

Dear Mr Whitefield

FOISA Request

I would like to make the following request under the Freedom of Information Scotland Act 2002:

1  I refer to North Lanarkshire Council's Annual Accounts for 2014/15 and the section dealing with the remuneration of NLC chief officials . 

2 Please provide me with a breakdown of the chief executive's annual remuneration package which is reported as  £172,699 in 2014/15. 

3 Please confirm whether the CEO's remuneration package included a 'performance bonus' element and if so, the amount involved.

I look forward to your reply and would be grateful if you could respond to me by e-mail to: markirvine@compuserve.com

    

Kind regards

Mark Irvine

Exchange of correspondence with NLC's Gerard Gardiner

-----Original Message-----

From: markirvine <markirvine@compuserve.com>
To: GardinerG <GardinerG@northlan.gcsx.gov.uk>
Sent: Fri, Jul 10, 2015 11:53 am
Subject: Re: Out of Office: Review Letter

Dear Gerard

I have read your FoI response letter again this morning and, on reflection, I would like to raise with you the contents of the following paragraph, in particular the rather menacing threat which is contained in the final sentence: 

"I am disappointed to note your blog post of 9 July regarding the Chief Executive’s pensionable entitlements. In that post you make criticism of the Council’s response to your Freedom of Information requests, suggesting that Council Officers have been keen to keep information as regards the financial value of the Chief Executive’s pension “under wraps”. In point of fact, your recent numerous requests and review requests have themselves lacked clarity.  The information you have requested has, within statutory timeframes, been responded to adequately. Should you remain dissatisfied with your responses, you have the ability to escalate matters to the Scottish Information Commissioner.   Furthermore, you have in your blog posted figures which are publicly available and which (had your request adequately specified your desire for this information) would have been covered by the exemption from disclosure under Section 25 of the Freedom of Information (Scotland) Act. The information is available in the Council’s Annual Accounts for 2014/15 and I presume that this is the source of your information.   I fail to see how the foregoing is demonstrative of the Council “[trying] to keep this information under wraps”. The entirely unfair imputation of character of Council Officers which can be inferred from your blog post will be borne in mind in respect of future requests for information."     

In my view your comments are quite inappropriate and unprofessional, and I am considering whether to raise my concerns with the Scottish Information Commisioner (SIC). I see no point in raising the matter elsewhere within the Council since you seem to be speaking on behalf of all the other chief officers.

Please contact me on your return to the office on Monday - my mobile number is 07947 795222.

Kind regards

Mark    

-----Original Message-----
From: markirvine <markirvine@compuserve.com>
To: GardinerG <GardinerG@northlan.gcsx.gov.uk>
Sent: Thu, Jul 9, 2015 6:34 pm
Subject: Re: Review Letter

Dear Gerard

I now have the information from the Annual Accounts, but no thanks to the Council, directly at least.

I would expect North Lanarkshire Council to deal with any future FoI requests from me entirely on their merits, even if you disagree with my views on the chief officers performance pay (bonus) scheme. 

I note that the scheme has now been discontinued which speaks for itself and I like to think that I played a small part in its downfall.

Kind regards

Mark Irvine

-----Original Message-----
From: Gardiner Gerard < GardinerG@northlan.gcsx.gov.uk>
To: markirvine < markirvine@compuserve.com>
Sent: Thu, Jul 9, 2015 1:39 pm
Subject: FW: Review Letter

Dear Mr Irvine,

Please find enclosed FOI review response of even date.

Regards,

Gerard Gardiner

Principal Solicitor (Corporate)

Democratic & Legal Services

North Lanarkshire Council

Windmillhill Street

Motherwell

ML1 1AB