Does the FOI Act have enough teeth?
The Freedom of Information Act is toothless in the face of a local government ‘gagging letter’ - even if it is regarding alleged wrongdoing by a senior council manager - so says a recent judgment by a First Tier Tribunal. It is not good news for anyone investigating the use or misuse of taxpayers’ money by local government.
I have spent the last two years investigating the circumstances behind the suspension and subsequent retirement of a senior manager at Bath & North East Somerset (B&NES) Council in 2012 over alleged wrongdoing. B&NES has refused to give out any information whatsoever on this case - even though we now know that the council carried out two internal investigations or ‘audits’ into the affair at taxpayers’ expense.
At a Tribunal hearing in January, B&NES continued to argue that the information was personal data - even though the senior manager was employed by the council, that is, by the taxpayer - and was protected by a ‘compromise agreement’ entered into with the senior manager. The Tribunal upheld their position. “There is nothing sinister or wrong in the use of compromise agreements,” said Judge Robin Callender Smith. “They can save public resources in terms of avoiding protracted internal procedures and potentially costly legal actions.” I have argued, however, this encourages a culture in which local government can “cover up” potentially embarrassing examples of wrongdoing by senior public sector staff. It prevents scrutiny by the press and the public.
B&NES further argued that information about the senior manager’s severance package was contained in its accounts available to the public but there is no reference whatsoever to him or the sum involved. The Tribunal said “The Council is required to include the generality (but not the specificity) of the exit packages for all employees in its accounts by Regulation 7 of the Accounts and Audit (England) Regulations 2011 and it has done so. In doing so it achieves a degree of public scrutiny of the Council’s spend on all such packages in the financial year.’ The ‘generality’ and not the ‘specificity’ ensures no pertinent information is revealed - so where is the public scrutiny there?
The Tribunal judges that “information about the circumstances leading to and around his departure from his employment would clearly have a significant impact on his personal reputation, future earning prospects and ability to maintain his family life. The Tribunal finds nothing untoward in the use of a settlement agreement in this situation. The majority of the information sought relates to material which is not normally made available to the public by any employer.”
I have argued that any alleged wrongdoing by the said senior employee - underlined by two council investigations of him - should invalidate any protection of his personal reputation, especially when he is paid for by the taxpayer. Should the public sector be held to a higher standard?
B&NES then spent much time arguing that the council manager was not in fact a ‘senior employee’ even though he was identified by the council as a ‘Divisional Director’ and was reported as such by the local press. Judge Robin Callender Smith agreed with B&NES because “there is no evidence to contradict this”.
The question remains: Did the senior manager do something to warrant suspension for several months, two internal investigations, and a subsequent sizeable exit package? If so -and it appears that he did, because this is what happened – then taxpayers are entitled to know what he did.
There are, apparently, no grounds for appeal, says the Tribunal, so B&NES’ two internal ‘audits’ into the alleged wrongdoing of a senior manager remain buried in a council filing cabinet to the benefit of the council and the retired senior manager—but not to the taxpayer. Not much transparency there, and so much for the Freedom of Information Act...
Tim Newark is the South West Grassroots Co-ordinator of the TaxPayers' Alliance
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