Smoke and mirrors - Indemnities, restrictions and Ombudsman costs

The row over the unlawful indemnity clause, and the 'leak' from the Constitutional Review Working Group (CRWG) meeting held at the end of July continues, with further coverage in this week's Carmarthenshire Herald.
Cllr Rob James, Labour opposition leader who is pushing for the removal of the clause, claims that his group are now barred from all sensitive information related to decisions made by the Plaid/Indie coalition, scrutiny of spending will be limited. I have heard similar claims and, furthermore, council leader Emlyn Dole confirms it in a statement to the Herald saying that it was now questionable whether confidential information could be trusted to the Labour leader.

This restriction came about following my blog post here which revealed the fact that the libel indemnity clause had been discussed at the CRWG meeting. No graphic details were published, there were no personal or commercially sensitive material, nor did anyone imagine that the whole business was top secret.
CRWG, you may recall, was set up to improve governance and make the council more transparent, not, as it now appears, as a secret conduit for the chief executive to challenge the qualifications of the Auditor. Something he has tried before.

Clearly the auditor's findings are still keeping Mr James awake at night. Only last year, in his complaint to the Ombudsman against Sian Caiach he rambled on at length about his unlawful indemnity, not that it was unlawful of course. He attacked, yet again, the then Appointed Auditor, Anthony Barrett claiming, in so many words, that his findings were based on little more than shifting sands and a passing whim.
As we know, the WAO have not changed their view and their finding has never been overturned in court.

Cllr Dole's previous enthusiasm to fully accept the Auditors findings and remove the clause in 2014, and his 'pledge' to promote 'a new mindset as we seek to ensure full openness and transparency' in May 2015, all mysteriously evaporated when he was given the key to the Presidential Toilet. It must all be a bit embarrassing, poor man...
He probably hopes that the whole sordid business will find the long grass, or those lumpy carpets in Mark James' Presidential Suite, and as yet, no letter has been written to the WAO, as resolved at the CRWG meeting.

And as for the CRWG item on libel indemnities being 'confidential', it's completely ridiculous and entirely without basis - legal advice, information, reports, judgements and numerous press reports have all been in the public domain for five years. And as I have explained before, there is an inherent and significant public interest for transparency over this issue.
And who do you think is so annoyed with the 'leak' that councillors' access to information has been restricted?
The same control freak who restricted Sian Caiach access a few years back for 'asking too many questions' and who threatened councillors with court action, to give just two examples.
This secretive, controlling nonsense lies squarely at the door of Mark James and his personally appointed legal umbrella, Linda Rees Jones. Our Leader, Cllr Dole is just grateful for his £48k a year, and does exactly what he's told. Just like every other council leader since the chief executive arrived from Boston all those years ago.

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Ombudsman investigation costs

Previous post; Mark James' complaints against Sian Caiach - the Ombudsman's conclusion

A few weeks ago I made Freedom of Information requests to the council, and the Ombudsman's office, for the cost of the investigation. With Mark James CBE having wasted 18 months of everyone's time, I wondered what it had also cost the taxpayers' of Carmarthenshire and indeed Wales.

The council's response

Remarkably, for the 18 months investigation, the only thing that the council had actually written down was an hour and a half of officer time amounting to £92.40.

This response was bizarre on so many levels. They could, for all we know, have spent £100,000 but if they only 'recorded' one little bit, ie £92.40, then that's all they have to disclose under FOI.

Mr James' complaint ran to 32 pages, assisted by free use of the council legal department rather than instructing his own solicitor; there was 'evidence gathering' in the form of statements from several council officers, there were documents obtained from the police, letters from council solicitors; the trawling of several blogs and assorted tweets, computer and printing costs, and whatever else occurred during the 18 months.
£92.40 probably just about covered the cost of printing out, yet again, Mr James' favourite bedtime reading, Tugenhat's lengthy judgement.

Mr James has form of course in using public resources, including hard cash, to pursue his personal vendettas and has habitually treated publicly funded resources as a mean to his own ends, or a means to failure, particularly in respect of his complaints to the police about me or his complaint against Sian Caiach.

What this deliberate omission to log expenditure means is that not only are the press and taxpaying public kept in the dark, but, more importantly perhaps, so are the auditors, and without a paper trail Mr James could have, and indeed did, spend and utilise whatever wanted. The true cost of this little exercise is probably the equivalent of at least couple of years pay for a junior council worker.

The FOI request and response can be seen here.

The Ombudsman's response

The Ombudsman's office would 'neither confirm or deny' that they held the information. This kind of response enables a public body to refuse to confirm that an investigation took place to protect sensitive information from disclosure and is usually reserved for FOI requests concerning police investigations or matters of national security.

The refusal by the Ombudsman to 'confirm or deny' in this case was somewhat unexpected, with their response bringing up issues of 'confidential investigations' and 'data protection'. I asked for the costs of course, not any documents or personal information about anyone. As for the investigation being confidential, the outcome was reported in the press.

I have now asked for an internal review which, along with the response etc, can be seen here.

Unlawful libel clauses - Cllr Rob James' video

Cllr Rob James, leader of the Labour opposition group on Carmarthenshire Council gives his views recent developments over the unlawful libel indemnity clause. Refreshingly clear and straight to the point, it's worth a watch.

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I have made my views on the matter crystal clear and my efforts to obtain documents from the recent 'working group' meeting can be read here. There's plenty of background on this blog, including the CRWG meeting here.
(Just to be clear, the opinions expressed below, and on this blog are mine alone, not views expressed by Cllr Rob James)

I don't need to elaborate, I've done so many times but I will say, yet again that this clause is unlawful, or, in the real world, illegal. Despite the endless denials and desperate attempts to discredit the Auditor, and anyone else, Mark James knows it too. Since the Auditor's findings in 2014 he, and head of law Ms Rees-Jones have deliberately and continually misrepresented the legal position and misled councillors, and used precious public resources to do so.
What is worse, perhaps, is that our pious church-going chief executive 'persuaded' Plaid council leader Rev Dole to betray his own conscience, u-turn, and sing from the same, profoundly un-Christian-like hymn sheet.

It is very much in Mark James' interest, and it is his intention, to try and reinstate the clause or at least overturn the label 'unlawful'. Who knows, perhaps he's hoping for a knighthood... He has never repaid the unlawful cash and, without a pang of conscience, breached the undertaking to hand over the damages back to the council.

Whatever happens this issue will not go away, despite the administration's best attempts to muddy the waters, kick it into the long grass, or any similar metaphor.
Whatever your views on the libel case itself, it is extremely important that the clause is completely removed.
As for accountability, it is my honestly held opinion that Mr James and Ms Rees-Jones should both have been sacked over this fiasco four years ago. There's still time.

FOI news - Carmarthenshire council and the culture of secrecy

Some interesting stats about Freedom of Information requests were released earlier this week after the Welsh Conservatives, via FOI of course, collected figures for Welsh government, councils and health boards. The full dataset can be found under the article 'Culture of Secrecy' on their website here, naturally there's a bit of a Tory slant, but never mind.

As I am a regular user of the Freedom of Information Act, Carmarthenshire-style, their stats were interesting. Out of 1235 requests made from January to December 2017 only 50%, were answered in full, ie full disclosure of the information requested. A grim statistic. Out of the remaining 50%, 317 were refused and 193 partly refused.
In 2016 the full disclosure figure was 58% so there's been a decline of 8%.

This puts Carmarthenshire towards the bottom of the public body barrel. The Welsh Government were worse with only 46% full disclosures. At the top of the tree was Gwynedd council with 95% full disclosures out of 1002, a comparable number of requests as were made to Carmarthenshire.

According to to the stats, Carmarthenshire has improved it's response rate to reply within the 20 day limit from 84% in 2016 to 97% in 2017. My personal experience of delayed responses would put this figure at around 10%, but perhaps that's just because it's me...

I acknowledge that the variables in the world of FOI can be endless, but the range of figures for full disclosure suggests that the legal criteria for disclosure or refusal are not being applied with much consistency across Wales.

One surprisingly quick Carmarthenshire response was to a request (not one of mine) for expenditure details for the month of June 2018. Over recent years I've suggested that Welsh councils should follow the legal requirement, now statutory in England, to publish monthly expenditure, but Carmarthenshire have consistently refused to do so.
This particular request, which was responded to in full in just three days, showed that publishing these details every month might not be such a problem after all...

The latest Caebrwyn FOI farce concerns my request for the officer's report to the Constitutional Review Working Group meeting held on the 27th July. The report related to the agenda item on the unlawful and notorious libel clause, recent posts, here and here explain the details, and the possibility that reinstatement of the clause is being sought.

I originally asked Monitoring Officer Linda Rees Jones for a copy of the report. She eventually replied to say that she had passed on my request to FOI as I was asking her to "divulge information about what might or might not have been discussed at a private meeting of councillors".
It is interesting that CRWG has now been classified as a 'private meeting of councillors'... I understand that calls are being made for CRWG, which is overseen by Mark James and Ms Rees Jones to become a properly constituted committee.

The predictable FOI response arrived on Monday stating that my request had been refused under the legal privilege exemption. There are two parts to this exemption; litigation privilege and advice privilege, the request was refused under the latter as no actual litigation was (or is) being contemplated. Which is something I suppose.

The basic principle that correspondence between lawyer and client is protected from disclosure is, of course, well established in law. Where it becomes something of a grey area is when the exemption is applied to reports written by council legal officers for councillors, committees or, in this case, a 'working group'.
The danger in a democratic society is that as a matter of convenience, the net can be arbitrarily widened to include anything written by a solicitor, including a council solicitor, about anything that elected members are discussing or deciding upon.

The exemption is also subject to a public interest test and in this case the council FOI officer, no doubt under the direct instruction of Mark James and Ms Rees Jones, decided that the public interest for transparency did not outweigh the need for secrecy.
Legal privilege is also a difficult one to appeal as there is such a long-standing presumption against disclosure. As the council well know.

Carms Council FOI Exemptions Department.

However, I have asked for an internal review of the refusal and will take this to the Information Commissioner if necessary. (Both the refusal and my request for an internal review are posted in full at the end of this post). So, we'll see.

In this case I believe that the document is being wrongfully withheld as a means to avoid public discussion on what is essentially a matter of significant public interest. The status of the clauses, ie the reinstatement, removal or the status quo (remain 'suspended') of the provision to use public money to fund officers' defamation claims has significant implications for the public and the press, financially and ethically, not just here in Carmarthenshire but across the UK.

The fact that this is sensitive and embarrassing subject matter for the chief executive and the monitoring officer, whose illegal actions sparked this long running scandal in the first place, should have nothing to do with a FOI response; but this is Carmarthenshire, with it's toxic culture of secrecy.

As I mention in my request for a review below, advice relating to the same issue was published in 2014, but this was when their backs were against the wall, so to speak. It does raise the question though of whether they have already waived their claim to legal privilege, or whether, as I have also mentioned in my email, it is engaged at all...
All in all I fail to understand why the report hasn't just simply been released. It is farcical.

The letter to the WAO, which I also requested, is 'not held by the council' which, in plain speaking, means it probably hasn't been written yet. Maybe they're getting legal advice...

On a wider point, it's about time that FOI legislation was widened to include commercial entities who carry out public services, from council owned 'arms-length companies, to housing associations and even City Deal partners, for example. If they're spending public money then they should be open to a degree of scrutiny.

Anyway, I am digressing, here's the refusal notice (3rd September), with my request for a review (5th September) below;

Dear Mrs Thompson,

I refer to your request for information, which was received on 3rd August, 2018 and has been dealt with under the Freedom of Information Act 2000.

The specific information you requested was as follows:

“1. I understand that at the CRWG meeting held last Friday (27th July) it was resolved to write to the Wales Audit Office concerning the unlawful libel indemnity clauses. I would be grateful for a copy of this letter or confirmation of its intended purpose if has not yet been composed.”

“2. … the officer's report which accompanied the item on the unlawful libel indemnity clauses which might or might not have been discussed at the 'private' CRWG meeting.”

In response to the first part of your request, the Council does not hold this information.

 With regard to the second part of your request, this information is held by the Council.

However, it is evident that the report in question is comprised of advice provided by a legal professional to the CRWG on this particular matter.

It is therefore a form of communication between a legal professional and a client. 
As we have advised you previously, a decision by the Information Tribunal, in Bellamy v the Information Commissioner and the Secretary of State for Trade and Industry (EA/2005/0023, 4th April, 2006), provided a clear definition of legal professional privilege:

“a set of rules or principles which are designed to protect the confidentiality of legal or legally related communications and exchanges between the client and his, her or its lawyers, as well as exchanges which contain or refer to legal advice which might be imparted to the client, and even exchanges between the clients and [third] parties if such communications or exchanges come into being for the purposes of preparing for litigation.”

The Bellamy decision also defined two types of privilege, namely litigation and advice privilege.  I believe in this case that the report is subject to advice privilege, which applies where no litigation is in progress or being contemplated.  This would include confidential communications between the legal professional and the client, for the main purpose of seeking or giving legal advice.  A report which in which a lawyer provides advice is by definition, legal advice.

Under Section 42 of the Act, a public authority may refuse to provide information where a claim to legal professional privilege could be maintained.  In view of the above, I believe this exemption is therefore engaged.

However, the Section 42 exemption is qualified and subject to a public interest test.  In doing so, I must make a distinction between what is genuinely in the public interest and what may merely be of interest to a member of members of the public. 

I accept that there are public interest factors which favour disclosure in this case, namely transparency and furthering public knowledge in relation to a matter which has been subject to some publicity in the past. 

However, there is an inherent public interest in maintaining this exemption, which will always be strong due to the importance of the principle behind legal professional privilege, which is to protect the privacy of communications between client and lawyer to ensure access to full and frank legal advice, which in turn is fundamental to the administration of justice. 

I am not persuaded on this occasion that this is outweighed by the factors favouring disclosure set out above.  Accordingly, I believe the exemption should be maintained and the information withheld from disclosure.
                                                                                       
As I am refusing to provide the requested information, please therefore consider this email to be a formal notice of refusal under Section 17 of the Act.

Yours sincerely
John Tillman

And here's my request for a review;

Dear Mr Edgecombe

I am requesting a review of the refusal of  FOIA/11379, I have copied the response below for ease of reference.

My request for a review relates to the second part of my request, namely the officer's report relating to the unlawful libel clauses to the CRWG meeting held on 27th July 2018.

I believe that the public interest favours disclosure and the use of legal advice privilege is incorrect, if engaged at all. The report should be disclosed for the following reasons;

The council waived its right to legal privilege on February 27th 2014 when the legal advice, directly relating to this same issue, was published on the council's website. 

There has been a historic lack of transparency over this issue and the misrepresentation of previous legal advice, as documented in the Wales Audit Office Public Interest Reports 2014. This in itself is a compelling reason for disclosure.

The Monitoring Officer, who I believe is the author of the report, must ensure councillors are not misled and act unlawfully. Despite the overwhelming findings by the WAO, both she, and the chief executive, continue to misrepresent the legal position as 'lawful'.

The response minimises the importance of the issue which is significant enough for a councillor to place on the agenda for a group which reviews the Constitution.

There is also significant public interest in that the removal, resinstatement or status quo of the libel cost clauses has financial, legal and moral implications for public bodies, members of the public and journalists across the UK, not just in Carmarthenshire. This has been reflected in the widespread interest and publicity over several years.

CRWG is by definition a 'Working group' and is not properly constituted as a committee. Reports cannot be classed as 'exempt' without the publication of an agenda, the application of the public interest test and a formal vote on the exemption sought. Even if CRWG is classed as a 'client', as you maintain, then it is they who own that advice and for them to vote on whether it should be released or not.

Legal advice privilege is not engaged at all if the communications between solicitor and client are to further criminal purpose. This also extends to civil fraud or other conduct which is a breach of the duty of good faith, contrary to public policy or in the interests of justice.  In this case the matter was subject to a finding of unlawfulness by external independent Appointed Auditor. Further to this, the provision in the constitution is contrary to legislation and the subsequent policy was adopted by the council themselves in 2006.

CRWG was established following the WLGA Governance report which found serious failing in the way in which the council was run, including the lack of transparency. The WLGA governance review itself was a direct result of the findings of the Wales Audit Office in January 2014. It is ironic that a document relating to the very issue which was the subject of one of those public interest reports is now being withheld.

I believe that the refusal to release the report is based solely on a reluctance for this controversial issue to be subject to public engagement and wider discussion. My own request to Cllr Dole for the matter to be placed on a CRWG agenda last year was refused as he didn't want to 'resurrect' the issue. However, the matter remains unresolved, transparency over the process remains imperative and the report should be disclosed forthwith.

I would be grateful for an acknowledgement of this email.

Yours sincerely

Jacqui Thompson

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The libel cost clauses, aka slush fund. Potential reinstatement on the cards.