FOI: More from the council which wanted to charge for FOI…

Remember the case of Cheshire West and Chester Council, the authority which sent out a press release about its plans to charge for FOI requests?

It made its announcement and pledged to get a team of officers on the case to work out how they would actually do this.

Not much has been said of it since then – probably because they did what I did, and rang the Information Commissioner’s office only to be told that no, councils can’t just start charging for FOI requests.

Anyway, Cheshire West and Chester Council has come up with another way of silencing those who like to ask awkward questions: It made someone who is either on its payroll or no longer on its payroll sign an agreement not to submit FOI requests or Data Protection Act requests.

Really.

According to this FOI request posted on Whatdotheyknow the council was asked:

The number of current employees / ex-employees who have agreed, following the matter being raised and made conditional as part of a compromise agreement drawn up by Cheshire West and Chester Council’s legal team, to forgo their right to approach the council in the future with Freedom of Information or DPA Subject Access requests under the relevant Acts.

The answer was: 1.

Finding out the background to this would be fascinating. It appears that Cheshire West and Chester Council is the authority which likes to say: Shhhhhhh

15 comments

  1. Excluding claims for damages under the DPA is a common inclusion in compromise agreements in the private sector too. CA’s are effectively a way of saying “here’s some pay-off in exchange for you not suing us”.

    As the FOI request asked for CAs covering FOI *OR* DPA, I would imagine that the one case only covered DPA, and not FOI, especially as there is no way of claiming for damages under FOI.

    1. Alex. You imagine wrongly in this instance. I am also currently conducting research on http://www.whatdotheyknow.com. Here is a summary of the findings to date – which are by no means conclusive, but give some useful pointers:

      Date commenced: 1st January 2011
      Time period requested: Since Council inception
      Time period generally responded: 2005 to 2010 (varies)
      Councils researched: ALL English Councils
      Number of full responses: 153
      Number of compromise agreements: 1295
      Average per council: 8.46
      Number of DPA / FOI related gagging clauses: 0

      The person who asked Cheshire West and Chester a very similar question came up trumps it seems.

      I’m awaiting a large number of replies. Some have gone to internal review, some are overdue. But responses so far indicate that resorting to gagging clauses, in which the council attempts to prevent the subject from exercising their statutory rights, is not common in the public sector.

      It will be interesting to see how this pans out, and also an opinion from Eric Pickles. Also, would the Local Government Association defend CWAC’s actions?

  2. Since for most purposes an FoI req should be accepted from a throwaway email add, I don’t see how this could be enforced anyway.

  3. It’s aimed at one individual. This person would be in possession of the document in question, feeling intimidated and not very likely to send an FOI request as a ‘throwaway email’.

    CWAC have done it once, got away with it and will feel emboldened to do it again. Before you know it, other, rogue councils will join the fray.

    The danger in broadcasting this widely will be to advertise another unwholesome option. But this case has to go far and wide and be condemned from the top – because, as night follows day, the behaviour will mushroom. The next step might be to seek to BAN vexatious or even ‘troublesome’ requesters from access to public information using clauses like this.

    I’ve asked the Information Commissioner for figures and information. Link here:

    http://www.whatdotheyknow.com/request/attempts_to_remove_statutory_rig#incoming-147776

    It could be the slippery slope.

  4. Interested how this would pan out if it was tested in court though
    If being able to make an FOI request is a statutory right in law, can you actually agree to give away a legal/statutory entitlement ?
    I mean – that agreement is a contract and contracts have to be legal to be enforceable, so if it’s an attempt to sign away a right you have in law, then surely it’d be unenforcrable ?
    I mean, an employment contract would not be legal if you agreed to sign away your minimum whe rights – so wouldn’t it be the same ?

  5. Hi David, are you sure CWAC can’t charge for FOI requests costing more than £450? I don’t agree with CWAC’s policy and I’d like to think you were right, but reading the stuff on the Information Commisioner’s Office website I believe they can charge. If you can prove otherwise then I’d love to hear your argument. Regards, Dave Holmes

    1. Hi David. For requests which they say cost more than £450, they can ask for payment. That’s the same with all councils. CWAC, I believe, had wanted to charge for all FOI requests so that the number of FOI requests would fall.

      If a request is expected to cost more than £450 in the eyes of the council, they should use Section 16 and tell you what information they could provide for less than £450.

      1. Hi again David,

        You know what, I think CWAC only ever intended to charge for FOI requests costing more than £450. It’s a case of the press release that was issued at the time being misleading, probably because the press officer that wrote it didn’t understand the complexity of what was being proposed at the executive. In fact, CWAC was adopting a local charging policy to reinforce a charging policy it was already operating according to the provisions of the Act.

        On the face of it, it was all a bit of a storm in a tea cup although anecdotally my FOI requests do seem to get knocked back on cost grounds more often these days, so may be not…

      2. Hi David – that may well be the case, in which case it is good news, but the press release certainly didn’t read that way at the time. The fact they were looking into charging for FOIs suggests at best someone simply didn’t know the rules

        Is the council offering help to say what it can release within the cost limits? It should do so under section 16.

  6. Dave, the background IS fascinating, as you suggested. I don’t have your email – which is a bit frustrating! – P

  7. Opposiiton Councillors also have to use FOI to get information from the Council. They dont provoide it valuntaily unless its covered by the Part two rules and allocated the confidential status and we are snookered. We use to call it the ‘Secret Council, but since the last Council meeting we no9w call it ‘A Rottem Borough’!

  8. This ban has now been lifted. With the help of Hugh Tomlinson QC. Bloody hell, the lengths you’ve got to go to. Being none too bright, Cheshire West and Chester Council are continuing to insist that the practice was lawful and that they reserve the right to do it again in the future. So watch out any existing employees considering speaking up or blowing the whistle on e.g. dangerous Health & Safety concerns, failure to consult, perversion of the course of justice, non-declaration of interests, malpractice or financial abuse.

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