Saturday 8 September 2018

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
* * *

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

No comments: