A UK Council set out to block my access to personal data and information... which
lasted for 20 months. Why?
My name is Paul Cardin. Welcome to my site. I’m a campaigner for open government
and run the company Easy Virtual Assistance. I’ve been moved to act in the area
of Freedom of Information and have made enquiries of all English Local Authorities
through the WhatDoTheyKnow website. This very nearly resulted in legal action. My
recent questions were centred around...
These are the controversial ‘full and final settlements’ often engaged in by organisations
when the bond of trust between employer and employee has broken down. As was seen
in the case of phone hacker Glen Mulcaire, their use encourages a culture of secrecy,
can conceal criminal behaviour, and serves to undermine openness and transparency.
They do have their place in business-related or commercially sensitive areas, but
are often used as a first resort, to cover a multitude of sins and to manage an organisation’s
reputation, regardless of the personal consequences. They can be and ARE being used
to protect offending managers within dysfunctional public bodies. Brighton & Hove
Council has issued 123 in the last six years - all in dispute / grievance / dignity
at work / investigation circumstances
These are dubious passages written into compromise agreements, used to silence former
Within the NHS, managers are continuing to threaten staff, and to fail patients and
their families, before concealing unlawful / immoral conduct with gagging clauses
- despite the circular HSC 1999/198 “outlawing” them over a decade ago.
In the situation described here, both Cheshire West and Chester Council and Brent
Borough Council have been pursuing a different line of attack. They’ve used a novel
approach which deters ex-employees from exercising their future statutory Freedom
of Information and Data Protection querying rights.
According to the ICO, this is likely to breach the FOI Act - because the only permitted
bar to releasing data is an exemption, written into the Act.
In early 2011, I secured legal backing suggesting that the clauses are unlawful.
Litigation WAS underway against Cheshire West and Chester Council until they caved
in in late June. BUT - they’re fully prepared to use it again with existing employees
in the future.
A ban remains in force on an unknown ex-employee of Brent Council, where the compromise
agreement in place (hidden from public view) serves to conceal the existence of the
So far, only two such gagging clauses have been discovered, which were implemented
by the following councils. Click on the links to see the original WhatDoTheyKnow
The Information Commissioner has confirmed that the practice of seeking to impose
a ‘ban’ on FoI and DP does not breach either Act. However, no breach is committed
because the recipient of the 'ban' will not make an FoI or DP request for fear of
being pursued through the courts by the ex-employer.
The recipient of the 'ban' would need to make a request, have it turned down by the
data controller quoting the 'ban' as the justification for withholding information.
The ICO would then step in, because its own opinion is that the only means of withholding
data is through one of the exemptions written into the Act.
However, all that said, there is a loophole waiting to be exploited here. Public
bodies, sitting on a pile of 'dirty linen' which they don't want to hang out in public,
could use this tactic as an ongoing and effective means of concealment.
Whistleblowers need protection, but here, employers have reason to feel encouraged,
and to continue behaving immorally or unlawfully - because they have a handy means
of covering up.
The Acts need to be tightened or a judicial review sought to prevent this happening.
The current unhappy situation enables public bodies to claim a commitment to openness
and transparency, whilst breaching their own internal data and information policies
and also the spirit of the Freedom of Information and Data Protection Acts.
How the heavy hand was lifted
In June 2011, Hugh Tomlinson QC provided his opinion on the the removal of my statutory
querying rights by Cheshire West and Chester Council. He also included the potential
implications for any public body / data controller of seeking to impose a similar
restriction in the future.