What was in the 11 A4 page witness statement of Surjit Tour (Wirral Council) about a Freedom of Information request for the minutes of a meeting of the Headteachers’ and Teachers’ Joint Consultative Committee (EA/2016/0033)?

What was in the 11 A4 page witness statement of Surjit Tour (Wirral Council) about a Freedom of Information request for the minutes of a meeting of the Headteachers’ and Teachers’ Joint Consultative Committee (EA/2016/0033)? At the outset I will make four declarations of interests. 1) I am the Appellant in this case (EA/2016/0033). … Continue reading “What was in the 11 A4 page witness statement of Surjit Tour (Wirral Council) about a Freedom of Information request for the minutes of a meeting of the Headteachers’ and Teachers’ Joint Consultative Committee (EA/2016/0033)?”

What was in the 11 A4 page witness statement of Surjit Tour (Wirral Council) about a Freedom of Information request for the minutes of a meeting of the Headteachers’ and Teachers’ Joint Consultative Committee (EA/2016/0033)?

At the outset I will make four declarations of interests.

1) I am the Appellant in this case (EA/2016/0033).
2) My wife was my McKenzie Friend in case EA/2016/0033.
3) I made the original Freedom of Information request on the 29th March 2013.
4) I am referred to by name (Mr. Brace) in paragraphs 1, 5, 6, 8, 9, 11, 13, 14 and 15 of the witness statement of Surjit Tour.
5) My profession ("local press") is referred to in paragraph 27.

This continues from two earlier blog posts headlined What were the 6 A4 pages of partially redacted minutes of a Headteachers’/Teachers’ Joint Consultative Committee meeting and the name of a LGA Associate Tutor that Wirral Council disclosed voluntarily in response to a First Tier-Tribunal (General Regulatory chamber) hearing (case number EA/2016/0033) about a Freedom of Information request first made in March 2013? and What was in the 5 A4 page witness statement of Andrew Roberts (Wirral Council) about a Freedom of Information request for the minutes of a meeting of the Headteachers’ and Teachers’ Joint Consultative Committee (EA/2016/0033)?.

Line breaks are indicated by a double horizontal line break. A picture of Surjit Tour at a public meeting of Wirral Council’s Coordinating Committee from the 15th June 2016 is below so people reading know who I’m referring to. I have included his signature, typed name and handwritten date at the end of the witness statement as an image.

**Surjit Tour (Monitoring Officer (Wirral Council)) at the Coordinating Committee held on 15th June 2016**

Continue reading “What was in the 11 A4 page witness statement of Surjit Tour (Wirral Council) about a Freedom of Information request for the minutes of a meeting of the Headteachers’ and Teachers’ Joint Consultative Committee (EA/2016/0033)?”

EXCLUSIVE: Wirral Council admit disclosure of NI numbers, dates of birth & names of nearly 200 staff was a mistake

Surjit Tour (left) at a recent meeting of Wirral Council's Standards and Constitutional Oversight Committee — Surjit Tour (left) at a recent meeting of Wirral Council’s Standards and Constitutional Oversight Committee

The background to this story is that last year Wirral Council accidentally divulged to me around two hundred people’s names, dates of birth, national insurance numbers, job titles and whether they were in the Merseyside Pension Fund (that Wirral Council administers) or not.

This is my response to Wirral Council (and ICO on this matter).

Dear Surjit Tour, Caroline Flint (ICO) and others,

Thank you Mr. Tour for your letter of 28th April 2015 (your reference ST/CG) and the email from ICO’s Caroline Flint dated 30th April 2015 (ICO case reference number RFA0568370). As both communications cover the same topic I am writing this joint response in reply.

I will deal first with an error in the response in the email from ICO. The first sentence in that email states “Thank you for raising your concern with us about Wirral Metropolitan Borough Council’s (Wirral MBC’s) handling of your personal data.”

None of the personal data that this matter relates to is about myself.

Moving to Mr. Tour’s letter of the 28th April 2015, paragraph 2 correctly states that I requested “eight lengthy contracts/leases” (one of which is the PFI contract with Wirral Schools Services Limited that this matter relates to).

Although not implicitly stated, it is implied that I was provided with eight lengthy contracts/leases and that this request “did impose a considerable strain on the officers”.

However four were not provided (the BAM Nuttall contract came into effect during the 2014/15 financial year, the development agreement (dated 9/1/2008) and bond (dated 6/10/2008) with Pochin Land and Development Limited (relating to the Birkenhead ASDA Compulsory Purchase Order) was refused and so was Wirral Council’s agreement with Neptune Developments with regards to the Birkenhead Masterplan proposals).

Two leases were provided (I would estimate each at being around 200 pages long). Two contracts were also provided (including the PFI contract) which are each around 500-1000 pages long. In the case of one of the leases (the New Brighton Marine Point lease) two entire copies of the lease were provided (when I only asked for one). As one of the two copies provided of that lease has a Land Registry official copy stamp on it (so presumably the copying was done by Land Registry) I would respectfully point out that the “considerable strain on the officers” referred to in your letter in making a second copy of that lease (then providing a second copy of that lease to myself with the Land Registry copy) was unnecessary.

In the last sentence of your letter you refer to Regulation 9 of the Accounts and Audit (England) Regulations 2011 which requires the documents to be made available for public inspection twenty working days before the date appointed by the auditor for local government electors to exercise their rights to either ask questions or make an objection.

For the 2013/14 audit, this date was the 18th August 2014. Therefore in order to comply with the regulations the documents should have been made available in the twenty working days leading up to the 18th August 2014 (which was the 21st July 2014 to the 15th August 2014).

As specified in your letter the PFI contract was available for inspection by myself on the 12th September 2014 (a month later than the timescale in the legislation you refer to). The copy of the PFI contract I was given on the 12th September 2014 was incomplete and it was the following month before I received the missing pages of the contract (which was after the accounts for that year had been closed by the auditor).

There were similar problems with the member expense forms as those given to me in September 2014 were also incomplete (or related to the wrong financial year) with the rest given to me in October 2014.

Therefore as the information was provided a month (or in some cases two months) later than the legislation specified I dispute your assertion that “The difficulties were compounded by the short timescales permitted by Regulation 9 of the Accounts and Audit (England) 2011 to produce the documents you had requested that related to the accounts of the Council”.

Had the documents been open for inspection and I had received copies prior to the 18th August 2014 (in compliance with the regulation you refer to) I would agree with you, however they were not.

Moving to the points made in page three of your letter, I was unaware (until I read your letter) of the existing right of inspection to admission agreements under schedule 2 Part 3 paragraph 11 of the Local Government Pension Scheme Regulations 2013.

I refer you to one of the admission agreements in the PFI contract specifically Schedule 19, Part 3, page 4/5 of the PFI Contract:

“3 (i) The Administering Authority shall from the date referred to in paragraph (ii) of this clause admit to participate in the benefits of the Scheme every employee of the Transferee Admission Body –

(a) whose name appears in the List annexed to this Agreement where he is identified as being a member of the Scheme by virtue of being an employee of the Administering Authority (hereinafter referred to as “the List”) or

(b) whom, by notice in writing given to the Administering Authority, the Transferee Admission Body may from time to time nominate provided that any person so nominated must be eligible to become a member of the Scheme.”

The Administering Authority referred to is Wirral Council. Therefore the list of names, dates of birth, job descriptions, NI numbers is of former Wirral Council staff whose employer was changed from Wirral Council to that of the PFI contractor.

You state in the second paragraph on page 3 “The amount of any such deficit would be determined by such factors as salary and age of the employee”. However the list does not include salary details of employees. Therefore as this information does not form part of the admission agreement or annexed list I dispute your statement that “That information would therefore be relevant to any assessment of the financial risk to the Council brought about by the PFI Contract.”

I might also point out that the admission agreement refers to a bond or indemnity with an insurer (Schedule 18 Parts 3 pages 14-17) to cover this sort of situation which reduces the risk of such liabilities falling on Wirral Council. Unfortunately the name of the insurer is not provided on the copy of the contract I have but the admission agreement states this insurance is to a limit of £67,000 (for that admission agreement which is one of three in the contract).

As I am publishing this response to ICO and Mr. Tour, I am also publishing the email from ICO that it refers to and the letter from Mr. Tour.

I have made a determination as data controller (see s.32 of the Data Protection Act 1998) that having regard to the special importance of the public interest in freedom of expression, the fact that I’m publishing my response (which could lead to confusion unless the email from ICO and letter from Wirral Council is also published at the same time), ICO’s view that Wirral Council breached the Data Protection Act 1998 as well as other reasons, that it is in the public interest for these documents to be published.

Finally, although I appreciate your point about whether s.34 of the Data Protection Act 1998 applies to the list is a matter for Wirral Council and ICO to come to a view on, at the very least there appears (from my perspective) to have been maladministration on the part of Wirral Council.

Providing documents requested during the audit outside the timescales you referred to in your letter and indeed in some cases after the accounts were closed prevented me from exercising my right to object to the auditor or to ask questions of the auditor before the accounts were closed at the end of September 2014.

As you are Monitoring Officer for Wirral Council, I draw your attention to section 5A of the Local Government and Housing Act 1989 and the duty of a Monitoring Officer to write a report (circulated to all councillors, the Chief Executive and the Chief Financial Officer) and for this report to be considered at a future Cabinet meeting within a set time period if there has either been a contravention of any enactment or rule of law by the authority or maladministration. I therefore await your response as to whether you will be writing such a report.

Yours sincerely,

John Brace

=======================================================================

from: casework@ico.org.uk
to: john.brace@gmail.com
date: 30 April 2015 at 15:42
subject: Data Protection Concern: RFA0568370[Ref. RFA0568370]

30 April 2015

Case Reference Number RFA0568370

Dear Mr Brace

Thank you for raising your concern with us about Wirral Metropolitan Borough Council’s (Wirral MBC’s) handling of your personal data.

We want to know how organisations are doing when they are handling information rights issues. We also want to improve the way they deal with the personal information they are responsible for. Reporting your concerns to us will help us do that.

Our role is not to investigate or adjudicate on individual concerns but we will consider whether there is an opportunity to improve the practice of the organisations we regulate. We do this by taking an overview of all concerns that are raised about an organisation with a view to improving their compliance with the Data Protection Act 1998 (DPA).

From the information provided to us it does appear that Wirral Council has breached the DPA as it has acknowledged disclosing third party data in error. Wirral MBC has stated they have recovered the information disclosed inappropriately. They have also specified that requests made under the Audit Act in the future should not include any personal information which would enable particular individuals to be identified unless the requester can demonstrate that the disclosure is in the public interest to the extent that it should override the individual’s right to privacy.

It is now Wirral Metropolitan Borough Council’s responsibility to explain to us how it intends to improve its information rights practices in relation to reducing the possibility of such inappropriate disclosures in the future. Although we do not intend to write to you again, we will keep the concerns raised on file. This will help us over time to build up a picture of Wirral MBC’s information rights practices.

Thank you for bringing this matter to our attention.

If you are dissatisfied with the service you have received, or would like to provide us with feedback of any kind, please let me know. Further information can also be found on our website by following the following link https://ico.org.uk/concerns/complaints-and-compliments-about-us/complain-about-us/

Yours sincerely

Caroline Flint
Case Officer
01625 545 258

The ICO’s mission is to uphold information rights in the public interest, promoting openness by public bodies and data privacy for individuals.

If you are not the intended recipient of this email (and any attachment), please inform the sender by return email and destroy all copies. Unauthorised access, use, disclosure, storage or copying is not permitted.
Communication by internet email is not secure as messages can be intercepted and read by someone else. Therefore we strongly advise you not to email any information, which if disclosed to unrelated third parties would be likely to cause you distress. If you have an enquiry of this nature please provide a postal address to allow us to communicate with you in a more secure way. If you want us to respond by email you must realise that there can be no guarantee of privacy.
Any email including its content may be monitored and used by the Information Commissioner’s Office for reasons of security and for monitoring internal compliance with the office policy on staff use. Email monitoring or blocking software may also be used. Please be aware that you have a responsibility to ensure that any email you write or forward is within the bounds of the law.
The Information Commissioner’s Office cannot guarantee that this message or any attachment is virus free or has not been intercepted and amended. You should perform your own virus checks.

Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF
Tel: 0303 123 1113 Fax: 01625 524 510 Web: www.ico.org.uk

=======================================================================

Department of Transformation
and Resources
Joe Blott
Strategic Director for Transformation
and Resources
Town Hall, Brighton Street
Wallasey, Wirral
Merseyside, CH44 8ED
DX 708630 Seacombe
Website: www.wirral.gov.uk

date 28 April 2015

to John Brace
Jenmaleo
134 Boundary Road
Bidston
Wirral
CH43 7PH
my ref ST/CG
service Legal and Member Services
tel 0151 691 8569
fax 0151 691 8482
email surjittour@wirral.gov.uk

Dear Mr Brace

DISCLOSURE OF PERSONAL INFORMATION IN ADMISSION AGREEMENT FORMING PART OF THE COUNCIL’S PFI CONTRACT

I refer to your letter of 19 January and to our subsequent meeting which culminated in your return of the personal information which was inadvertently disclosed to you when a copy of the PFI Contract was provided to you on 12 September 2014.

You will recall that in a written request dated 25 July 2014 you had exercised your right under Section 15 of the Audit Commission Act 1998 (“ACA”) to inspect and receive copies of over 300 invoices, eight lengthy contracts/leases and all member expense forms for 2013 and 2014. These documents related to the Council’s accounts for 2013/14.

The request for those documents did impose a considerable strain on the officers who were required to locate and copy those contracts after redacting commercially sensitive and personal information from those documents in accordance with the requirements of the Data Protection Act 1998 and Article 8 of the European Convention on Human Rights. Article 8, as you may know, requires a public authority to show respect for a persons private life and not to interfere with that right except as is in accordance with the law and is necessary (amongst other things) in the interests of the economic wellbeing of the country or for the protection of the rights and freedoms of others.

I should emphasise that the non-redaction of the personal pension information was not intentional. The information was overlooked amongst the thousands of pages of the documentation which you had requested under Section 15 of the ACA. The difficulties were compounded by the short timescales permitted by Regulation 9 of

www.wirral.gov.uk (LGC logo) Awards 2015 Winner Most Improved Council

the Accounts and Audit (England) 2011 to produce the documents you had requested that related to the accounts of the Council also by the sickness absence of one of the Council’s officers who was dealing with your request.

I have looked carefully into the legal consequences of the inadvertent disclosure of the personal information in the PFI Contract and have indeed taken Counsel’s advice on the matter. My conclusions are set out below.

Section 34 of the Data Protection Act 1998 contains an exemption from the requirement to comply with the non-disclosure provisions of the Act if any personal data consists of information which the Data Controller is obliged to make available to the public under any enactment.

The non-disclosure provisions are defined in Section 27 of the same Act and include the first data protection principle which requires Data Controllers to process personal data both fairly and lawfully.

If however the processing is necessary for compliance with any legal obligation to which the Data Controller is subject, then the requirement to process personal data fairly and lawfully does not apply.

The applicable legal obligation is Section 15 of the ACA which gives a right to any local government elector to inspect all contracts relating to the accounts which are to be audited. There is an exception for information which can identify a particular employee of the Council and also for personal information outside that description ie non-employees of the Council if the information enables a particular individual or individuals “to be identified and the Council’s Auditor considers that it should not be inspected or disclosed”.

In the particular circumstances of the PFI Contract the Auditor had not been requested to authorise non-disclosure. The volume of the documents running into several thousands of pages which you had requested rendered it simply impracticable within the short timescales to seek the Auditor’s opinion on whether the personal information should be disclosed. You must remember the context in which the personal information in the PFI Contract was inadvertently disclosed. It was one of many documents that had to be sifted for personal information and commercially sensitive information.

That however does not end the matter since there is a Judgment of the Court of Appeal in the case of Veolia ES Nottinghamshire Limited v Nottinghamshire County Council and Others 2010 EWCA CIV 1214 which decided that Section 15 of the ACA must be interpreted in a manner which is to ensure compliance by the Council with the rights conferred on individuals by the Human Rights Act 1998 and in particular the right to a private life contained in Article 8 of the European Convention on Human Rights to which I refer above.

The advice I have received is that Section 15 of the ACA should be interpreted in such a way that the Auditor’s prior consent to non-disclosure is not required where it would be impracticable to obtain that consent eg because of the volume of documents required to be submitted to him in the short period of time allowed by the Legislation for production of contracts which relate to the Council’s accounts.
It does not of course follow that the Council’s duty not to interfere with Article 8 Rights of the individuals named in the Admission Agreement of the PFI Contract automatically overrides your right as a local government elector to see that information if it formed part of the contract which you were entitled to inspect.

2
There is a public interest that is to be considered which is that the local government elector or indeed a member of the public should normally enjoy full disclosure of information which is relevant to the Council’s true financial position and which would enable them possibly to detect any wrong doing by the Council or its employees.

In this regard I would draw your attention to Schedule 2 Part 3 paragraph 11 of the Local Government Pension Scheme Regulations 2013 which imposes an obligation on the Council to make a copy of an Admission Agreement available for public inspection at its offices. Details of the employees of the PFI Contractor who had been transferred to the contractors employment from the Council under the Transfer of Undertakings (Protection of Employment) Regulations are relevant to an assessment of the Council’s financial position. Under the Local Government Pension Scheme Regulations 2013 if a contractor were to default in his obligations to make pension contributions in respect of those employees or were to become insolvent, the Council would have to meet any deficit in the Pension Fund that arose as a result. The amount of any such deficit would be determined by such factors as salary and age of the employee. That information would therefore be relevant to any assessment of the financial risk to the Council brought about by the PFI Contract.

Furthermore such employees of the PFI contractor are only entitled to remain in the Local Government Pension Scheme if they continue to be employed in connection with the provision of the services comprised in the PFI Contract. Members of the public would need to know the identities of the contractors employees who were admitted to the Pension Scheme under the Admission Agreement in order to check whether they were continuing to work on the PFI Contract and therefore still entitled to remain in the Local Government Pension Scheme with the attendant financial risk to the Council and thereby council tax payers if the PFI contractor were to default in payment of pension contributions or become insolvent.

If therefore that personal information had been drawn to my attention l would have had to weigh in the balance the public interest in disclosing information relating to the Council’s financial position and the identity of employees who were only entitled to remain in the Pension Scheme whilst they remain employed on the PFI Contract, against the invasion of those members privacy if their identities, dates of birth, and national insurance numbers were made known to you.

I have to say that if I had been called upon to make that decision I would have redacted the personal information and not disclosed it to you unless you had been able to satisfy me that you required that information in circumstances which related to those aspects of the public interest to which l have referred above.

It is evident from the contents of your letter of 19 January and our subsequent meeting that you yourself do not believe that the public interest in disclosure of the identities of the members of the Pension Scheme in the PFI Contract was more potent than the respect which the Council is required to show for their privacy under Article 8. Your reasons for seeking disclosure of the PFI Contract had nothing to do with your concern over the Council’s financial exposure to potential deficits of PFI contractors in the Local Government Pension Scheme or to any concerns that the PFI employees who had been allowed to retain membership of the Local Government Pension Scheme were abusing that Scheme by retaining their membership when they were no longer working on the PFI Contract. You have acted responsibly by returning that personal information to me because you recognise that it did not serve the purpose you had in inspecting the PFI Contract in relation to the Council’s accounts for 2013/2014.

In future I propose to ensure that future requests to inspect documents under the ACA should not include any personal information which would enable the identity of particular individuals to be ascertained unless you (or any person wishing to inspect the accounts) can demonstrate that the disclosure of that information is in the public interest to the extent that it should override the individuals right to privacy.

Finally I should add that as from 1 April 2015 Section 15 of the Audit Commission Act 1998 has been replaced by Section 26 of the Local Audit and Accountability Act 2014. Under that Act there is no longer a requirement for the Council to seek the prior consent of the Auditor before withholding any personal information in the documents relating to the Council’s accounts which a local government elector is entitled to inspect. It is a recognition by Parliament that the prior involvement of the Auditor is not workable having regard to the short timescale for inspection of the documents and the often voluminous nature of those documents. There are however transitional provisions which mean that the 1998 Act will continue to apply to the inspection of accounts for the year 2014/15.

I am sending a copy of this letter to the Information Commissioner so that he is made fully aware of the Council’s investigation into your complaint and the complicated legal framework within which the Council has to work particularly when it is confronted by a request from the public to inspect a large volume of documents.

Yours sincerely and signed on behalf of
Surjit Tour
Head of Legal and Member Services

(signature of Jane Corrin)

Jane Corrin
Information and Central Service Manager
Transformation and Resources

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What was my reply when Wirral Council's "Ministry of Truth" asked for 2 invoices on this blog to be erased?

What was my reply when Wirral Council’s “Ministry of Truth” asked for 2 invoices on this blog to be erased?

Jenmaleo,
134 Boundary Road
Bidston
CH43 7PH
18^th January 2015
by email to surjittour@wirral.gov.uk
CC: joeblott@wirral.gov.uk

Mr. Surjit Tour
Head of Legal and Member Services and Monitoring Officer
Department of Transformation and Resources
Wirral Metropolitan Borough Council
Town Hall
Brighton Street
Wallasey
Wirral
CH44 8ED

Dear Mr. Tour,

Thank you for your email of 15^th January 2015 sent at 16:38 with the subject “Blog posting of invoices” which is attached for reference at appendix A. You also attached to your email ICO guidance to s.32 of the Data Protection Act 1998 titled “Social networking and online forums – when does the DPA apply?” which can be read on ICO’s website at https://ico.org.uk/media/for-organisations/documents/1600/social-networking-and-online-forums-dpa-guidance.pdf .

Please class this as a formal response to the issues you have raised in it. I have no problem with you sending a copy of this response to Dr Gareth Vincenti.

You refer in your opening paragraph to section 15 of the Audit Commission Act 1998 (in its amended form as it was later amended by s.160 of the Local Government and Public Involvement in Health Act 2007). This is attached in full for reference at appendix B.

You state “You were provided with copies of certain invoices in compliance with Section 15 (a) of the 1998 Act, which entitles you to make copies of all or any part of the accounts and those other documents.”

The issue of copying of documents (as you can read for yourself in appendix B which is a copy of the legislation) is dealt with by the Audit Commission Act 1998 section 15(1)(b), as section 15(1)(a) deals with a right to inspect documents, not to copy documents. Therefore this sentence in your email should read Section 15(1)(b), not Section 15(a).

You go on to state “In redacting certain parts of those invoices, the Council relied on Section 15 (3A) of the Audit Commission Act 1998, as amended, which relates to personal information.”

If you read s.15(3A) of the Audit Commission Act 1998, as amended (attached as appendix B) you will find the definition of personal information in s.3A is “(3A) Information is personal information if–

(a) it identifies a particular individual or enables a particular individual to be identified; and
(b) the auditor considers that it should not be inspected or disclosed.”

It is important to note that the way the legislation is phrased it is not down to Wirral Council to make the ultimate decision as to whether information that may or may not fall within the definition of personal information as defined by section 3A should or shouldn’t be inspected or disclosed, but that decision is to be made by Wirral Council’s auditor who is for the financial year in question (2013-14) was Grant Thornton UK LLP.

It has not been determined yet whether Wirral Council asked its auditor Grant Thornton UK whether any of the information on the invoice in question should not be inspected or disclosed and if so what Grant Thornton UK LLP’s decision on this matter was.

Appendix C is a communication to Wirral Council’s external auditor in an attempt to clarify whether this took place.

On the 19^th January 2015 I received a reply from Wirral Council audit Grant Thornton UK LLP. As you may or may not be aware the current engagement lead at Grant Thornton UK LLP is different to the engagement lead at Grant Thornton UK LLP for the 2013/14 audit. I can confirm that Grant Thornton UK LLP however are making enquiries and will respond as soon as they can.

If there has been an oversight and Wirral Council did not ask its external auditor to make a determination in relation to the many redactions it made to the hundreds of invoices I inspected and received copies of, I would hope that that arrangements could be made to inspect and copy the information I was incorrectly denied access to inspect and receive copies of last year.

You state later in your email:

“The Council considers that it may be necessary to report this matter to the Information Commissioner’s Office and Dr Vincenti may wish to take his own action in connection with your disclosing his personal data “

I will deal with the two interrelated matters raised here in relation to what you refer to as “personal data” of Dr Vincenti’s.

His surname “VINCENTI” is mentioned at the top of the invoice. Not redacted on the copy invoice supplied by Wirral Council is the phrase “Invoicing by Midex Pro for Dr Vincenti”. It is also stated that “cheques are to made payable to Dr. Vincenti”. Two addresses are also used on the invoice to send cheques to, one is a document exchange “DX 720874 Northallerton”, the sort code of 54-10-41 (which relates to a specific branch of a bank) is provided on the invoice for BACS payments and an email address of garethvincenti@btinternet.com is also given.

Dr Gareth Vincenti discloses his own email address, along with other contact details such as the address for correspondence on his website here [drvincenti.co.uk/contact.htm (at the time of writing this link worked however Dr Vincenti’s website is down as of 19th March 2015)]] . The document exchange address is published here http://www.expertsearch.co.uk/cgi-bin/find_expert?4052 and also elsewhere online.

Neither the sort code, nor the document exchange reference fall under s.3A as neither identify a particular individual or enable a particular individual to be identified as both would be used by multiple individuals.

You refer in my email to my right to inspect the invoice. Section 34 of the Data Protection Act 1998 deals with information available to the public under inspection by another enactment (in this case s.15 of the Audit Commission Act 1998).

As it is short I will quote it here:

34 Information available to the public by or under enactment.

Personal data are exempt from—
(a) the subject information provisions,
(b) the fourth data protection principle and section 14(1) to (3), and
(c) the non-disclosure provisions, if the data consist of information which the data controller is obliged by or under any enactment other than an enactment contained in the Freedom of Information Act 2000 to make available to the public, whether by publishing it, by making it available for inspection, or otherwise and whether gratuitously or on payment of a fee.

As to the invoice in question, the “personal data” of Dr Vincenti as you put it was available for inspection because of s.15 of the Audit Commission Act 1998, therefore s.34(c) of the Data Protection Act 1998 applies. It has not been established whether the auditor made a determination that any of it fell within the meaning of “personal information” in section 3A. Therefore at this stage, as you have not provided any evidence that the auditor made such a determination it means such “personal data” is exempt from the non-disclosure provisions that you refer to in your email.

You also state in your email that “which additions include the address of an employee/or former employee of the Council which is capable of amounting to personal data and in the context of the invoice capable of amounting to the processing of sensitive personal data.”

The address you refer to was a partial address. Had it been a complete address including house number, it could be argued that it would fall under the definition of personal information (as defined by s.15(4) of the Audit Commission Act 1998 see appendix B) which states that in order to qualify as personal information, the information “relates specifically to a particular individual”.

There are 60 different addresses in Forwood Road and 22 addresses that match that particular postcode. Wirral has a average household population of 2.17 per a household. Therefore the partial address could potentially relate to one of an estimated 48 individuals.

A partial address, without a house number does not therefore “relate specifically to a particular individual” nor does it enable a particular individual who may live at one of these addresses to be identified. It relates to a large group of individuals. Therefore it falls outside the definition of “personal information” as defined by s.4(1)(a) as it is not information that relates specifically to a particular individual.

Section 32 of the Data Protection Act 1998 on journalism, literature and art also applies here. I state my belief as data controller that I believe that having regard in particular to the special importance of the public interest in freedom of expression, publication of both the original invoice, a copy of the invoice with some of the text from the original invoice highlighted in green and this response including appendices to the response is in the public interest.

A very similar complaint to ICO was made in 2011 about a blogger called Derek Dishman who blogs under the nom de plume of “Mr Mustard” by Barnet Council. The exchange between Barnet Council and ICO can be read here https://www.whatdotheyknow.com/request/94886/response/237295/attach/2/R%20IRQ0426076%20ICO%20Barnet%20correspondence%20re%20ENQ0391446.pdf . To summarise ICO disagreed with Barnet Council’s incorrect assertions about this blogger (which seem broadly similar to those made by Wirral Council).

Finally you state “I do not consider that your right to inspect and the right to have copies made of relevant documents, then entitles you to disclose such documents to the public”.

I hope I have outlined (in much detail above) as to why you are incorrect in that assertion. This issue of the purposes to which information obtained by third parties using their rights to inspect and have copies of information held by local councils during the audit has already been dealt with at a previous judicial review case.

I refer you to R (HTV Ltd) v Bristol City Council [2004] 1 WLR 2717 which I have recently read. I quote from Elias J, the High Court Judge in that matter:

“55. The premise here is that the provision requires the information to be used for a limited purpose or purposes. As I have indicated, I accept that Parliament probably did envisage that the information would be primarily in order to enable electors to raise questions with the auditor and ultimately raise objections. But the fact that those who have access to this information extend beyond those who can make such a request, or raise such an objection, shows that it cannot be the only purpose.

56. In any event, there is no express limitation in the statute as to the use to which this information can be put. I see significant practical difficulties as to confining the use of the material once it has been acquired.”

Finally, my last two points are as Wirral Council is the data controller for the complaint made to it by Dr Gareth Vincenti which refers to me, please class this response as a request exercising my right under s.7 of the Data Protection Act 1998 for a copy of Dr Gareth Vincenti’s complaint.

I further point out that due to what is referred to above I am exercising my right under s.10 of the Data Protection Act 1998 and request that Wirral Council confirm it will immediately cease to process further any personal data about myself in relation to the complaint made by Dr Gareth Vincenti or your email for the reasons outlined above as raising this issue in the way it has been is causing distress.

Yours sincerely,

John Brace

Appendix A (email from Surjit Tour to John Brace dated 15^th January 2015)

from:	Tour, Surjit <surjittour@wirral.gov.uk>
to:	john.brace@gmail.com
date:	15 January 2015 at 16:38
subject:	Blog Posting of Invoices
mailed-by:	wirral.gov.uk

Dear Mr Brace,

I refer to your inspection of documents under Section 15 of the Audit Commission Act 1998, in connection with the audit of the Council’s accounts for the financial year ending March 2014. You were provided with copies of certain invoices in compliance with Section 15 (a) of the 1998 Act, which entitles you to make copies of all or any part of the accounts and those other documents. In redacting certain parts of those invoices, the Council relied on Section 15 (3A) of the Audit Commission Act 1998, as amended, which relates to personal information.

I do not consider that your right to inspect and the right to have copies made of relevant documents, then entitles you to disclose such documents to the public nor does it entitle you to alter the Council’s redacted documents, which alteration constitutes processing of data. The Council has received a complaint from Dr Gareth Vincenti concerning a posting made on your blog on 1 December 2014 entitled:

“Do you want to know what 6 redacted legal invoices paid by Wirral Council on employment matters (including one from a consultant psychiatrist) state?

This posting included the copy of an invoice from Dr Vincenti which had been redacted by the Council. You had posted a second copy of the invoice, having altered part of the redactions to include information in green. You state on the blog posting:

“I’ve supplied both the original and a partly redacted copy of this as the original is heavily redacted. My additions are in green”.

I have had regard to the guidance of the Information Commissioner’s Office,“Social networking and online forums – when does the DPA apply?”

I consider that by altering the Council’s redactions to include additions in green, you have potentially processed personal data in breach of the Data Protection Act 1998, which additions include the address of an employee/or former employee of the Council which is capable of amounting to personal data and in the context of the invoice capable of amounting to the processing of sensitive personal data. I do not believe that you are entitled to rely on the exemption contained in section 36 of the Data Protection Act 1998, in that I consider you are using social media for non-domestic purposes. Section 36 contains an exemption for personal data that is processed by an individual for the purposes of their personal, family or household affairs. I am therefore requesting that you remove from your blog both copies of the invoice from Dr Vincenti immediately.

The Council considers that it may be necessary to report this matter to the Information Commissioner’s Office and Dr Vincenti may wish to take his own action in connection with your disclosing his personal data and the address referred to above.

Yours sincerely

Surjit Tour

Head of Legal & Member Services

and Monitoring Officer

Department of Transformation and Resources

Wirral Metropolitan Borough Council

Town Hall

Brighton Street

Wallasey

Wirral

CH44 8ED

Tel: 0151 691 8569

Fax: 0151 691 8482

Email:surjittour@wirral.gov.uk

Visit our website: www.wirral.gov.uk

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This email and any files transmitted with it are confidential and

intended solely for the use of the individual or entity to whom they

are addressed. If you have received this email in error please notify

the system manager.

This footnote also confirms that this email message has been swept by

MIMEsweeper for the presence of computer viruses.

www.clearswift.com

Appendix B
Section 15 of the Audit Commission Act 1998 (as amended by s.160 of the Local Government and Public Involvement in Health Act 2007)

15 Inspection of documents and questions at audit

(1)At each audit under this Act, other than an audit of accounts of a health service body, any persons interested may—
(a)inspect the accounts to be audited and all books, deeds, contracts, bills, vouchers and receipts relating to them, and
(b)make copies of all or any part of the accounts and those other documents.

(2)At the request of a local government elector for any area to which the accounts relate, the auditor shall give the elector, or any representative of his, an opportunity to question the auditor about the accounts.

(3)Nothing in this section entitles a person—
(a)to inspect so much of any accounts or other document as contains personal information within the meaning of subsection (3A) or (4); or
(b)to require any such information to be disclosed in answer to any question.

(3A) Information is personal information if–

(a) it identifies a particular individual or enables a particular individual to be identified; and
(b) the auditor considers that it should not be inspected or disclosed.

(4) Information is personal information if it is information about a member of the staff of the body whose accounts are being audited which relates specifically to a particular individual and is available to the body for reasons connected with the fact—
(a)that that individual holds or has held an office or employment under that body; or
(b)that payments or other benefits in respect of an office or employment under any other person are or have been made or provided to that individual by that body.

(5)For the purposes of subsection (4)(b), payments made or benefits provided to an individual in respect of an office or employment include any payment made or benefit provided to him in respect of his ceasing to hold the office or employment.

Appendix C – Email to external auditor Grant Thornton

from:	John Brace<john.brace@gmail.com>
reply-to:	john.brace@gmail.com
to:	Robin Baker <robin.j.baker@gt.com>
cc:	“Chris Whittingham (Grant Thornton)” <c.whittingham@uk.gt.com>
date:	18 January 2015 at 18:48
subject:	query about whether Grant Thornton gave permission to Wirral Council during the 2013/14 audit for personal information on invoices should not be inspected/disclosed

Dear Robin Baker & Chris Whittingham,

During the 2013/14 audit I exercised my inspection rights to inspect various invoices and receive copies of them for the 2013/14 financial year under s.15 of the Audit Commission Act 1998.

Last Thursday I received an email from Wirral Council that stated “In redacting certain parts of those invoices, the Council relied on Section 15 (3A) of the Audit Commission Act 1998, as amended, which relates to personal information.”

S.15 (3A) of the Audit Commission Act 1998 was amended in 2008 to state:

“(3A)Information is personal information if—

(a) it identifies a particular individual or enables a particular individual to be identified; and

(b) the auditor considers that it should not be inspected or disclosed.”

Could you confirm that as Wirral Council’s auditor at the time whether a determination was made by the auditor that personal information on an invoice for £3,060 from a Dr Gareth Vincenti dated 31st December
2013 was made and if so which elements on the invoice the auditor considered should not be inspected or disclosed?

Could you also confirm as Wirral Council’s auditor at the time whether any determination was made by the auditor about personal information on any of the invoices I requested for the 2013/14 year was made and
if so the particular invoices and particular information that the auditor considered should not be inspected or disclosed?

If the auditor was not asked to make any such a determination could you state this too?

Thanks,

John Brace

If you click on any of these buttons below, you’ll be doing me a favour by sharing this article with other people. Thanks:

How much evidence does there have to be of wrongdoing at Wirral Council before an apology is given?

In late May of 2011 Simon Holbrook wrote an email to Councillor Pat Williams (in her capacity as Birkenhead Liberal Democrat Chair) and Councillor Alan Brighouse (in his capacity as Birkenhead Liberal Democrat Secretary) to their Wirral Council email addresses. What that email said (despite having a court order for the email to be produced to me from Deputy District Judge Ireland granted in the Birkenhead County Court the next year) is unknown to me as it was never shared with me.

What I do know was that based on the contents of this email (that was never shared with me), Councillor Pat Williams and former Councillor Ann Bridson proposed and seconded my suspension from the Liberal Democrats at a meeting of the Birkenhead Liberal Democrat Constituency Executive based on its contents in early June 2011. The next day (4th June 2011) I made a subject access request exercising a right I have under s.7 of the Data Protection Act 1998 for “a copy of the complaint made against me by Simon Holbrook”.

The constitution of the Liberal Democrats stated (and still does) state

“7.9 When the grounds cited in the charge are those specified under Article 2.6 (a), (b) or (d), the Disciplinary Procedure may proceed as follows:

(iii) The original complaint, the charge, copies of any written statements obtained and details of the Disciplinary Meeting shall be provided to the person being complained against and to all members of the Disciplinary Meeting not later than four weeks before the date of that meeting. ”

and

7.3 “If the procedure is not completed within that time, then the suspension shall automatically cease unless an extension of time is granted by the English Appeals Panel in accordance with its procedures. The person being complained against shall be notified of the suspension and the reasons for it.”

When it came to the disciplinary meeting fourteen weeks later in early September 2011, the original complaint had not been shared with me within the ten week time limit. The forty day limit to respond to my subject access request had passed. I’d written a further letter giving an extra fourteen days to share with me the original complaint otherwise I would sue, that too had passed.

By the date of the disciplinary meeting I was in the frankly ridiculous situation of having been suspended based on a complaint that had never been shared with me (and which I’d sued both the local party and the party nationally to get a copy of) and basically stated that because of this abuse of process the constitution said that because this mandatory requirement of the constitution hadn’t been followed that the suspension had therefore automatically expired and the disciplinary panel therefore didn’t have the power to reach a decision.

The disciplinary meeting made up of Roy Wood (who later stood against me as the candidate in Bidston & St. James the next year), Anna Blumenthal (the Birkenhead Liberal Democrat President at the time since deceased), Allan Brame, Cllr Mark Clayton and some member from Ellesmere Port I forget the name of didn’t see it that way and decided to punish me by deciding that I wouldn’t be allowed to be a Lib Dem candidate in any public election or hold office within the party for five years. This decision could then be appealed within a month to the English Appeals Panel (which I did).

However the English Appeals Panel told me they couldn’t accept the appeal as I didn’t have the original complaint made against me!

The next year in April 2012 (after an unsuccessful attempt in October 2012 by the Liberal Democrats to switch the two defendants in the case to a former Chief Executive of theirs called Chris Fox) there was a hearing in the Birkenhead County Court in front of Deputy District Judge Ireland. One of the two defendants was Councillor Alan Brighouse on behalf of the Liberal Democrats. Roy Wood also turned up to help him. There was nobody appearing for the other defendant which was Liberal Democrats (the Federal Party) on behalf of Liberal Democrats (that defendant was the Lib Dem headquarters down in London who had also ignored the subject access request).

Deputy District Judge Ireland agreed with me that s.7 of the Data Protection Act 1998 that Councillor Alan Brighouse on behalf of the Birkenhead Liberal Democrats and Liberal Democrats (the Federal Party) on behalf of the Liberal Democrats had failed to comply with my subject access request made the previous year in contravention of s.7 of the Data Protection Act 1998. She granted me a court order ordering the two defendants to comply with the request.

On May 25th 2012, after mentioning to Councillor Alan Brighouse at the local election count on the evening of May 3rd or early morning of May 4th Councillor Alan Brighouse wrote me a letter. A copy of his letter is below with a scan of the original handwritten letter.

31 Grosvenor Road

Oxton

May 25, 2012

Dear John,
Attached is a hard copy of Simon’s initial complaint against you.
As I told you at the election count, I was hoping to find the original e-mail to which it was attached.
I think you are aware that, subsequent to sending the complaint to Pat and myself, Simon modified it, leaving the two items that were eventually considered by the panel.

kind regards,
Alan

Letter from Alan Brighouse to John Brace dated 25 May 2012

So what was Simon Holbrook’s original complaint? My comments are in italics and I link to the relevant documents mentioned.

Appendix – Case against John Brace

1. Smearing of Sitting Councillors

This allegation was withdrawn by him in advance of the disciplinary panel meeting.

In an email to Cllr Gilchrist dated 19 May 2011 at 09:59, John Brace did link the Standards investigation into Cllr Williams’ and Cllr Bridson’s part in the “special charging policy” with that of the recent investigation into the way in which Martin Morton had been treated, despite the fact that these are two totally separate matters.

Cllr Williams and Cllr Bridson are not and were not under investigation with respect to the independent investigation into the alleged bullying of Martin Morton. This investigation, which was instigated by former Cllr Holbrook has now concluded and reported. It never was and never had been a matter for the Standards Board of England.

My email to Cllr Gilchrist dated 19 May 2011 is rather long, however the three sentences referred to here are “Morale in the party is extremely low, the Chair and the Vice-Chair of the local party are currently (according to the Wirral Globe) under investigation on standards grounds following a decision by Wirral Council’s Independent Assessment Panel to refer the matter to Standards for England regarding their roles in the Social Services “special charging policy” and how Martin Morton was treated. This independent report (by now read by councillors but currently exempt) will be published within 2-5 months and will lead to a public discussion of their roles in this saga. Both are likely to be candidates in 2012 and the full reasons how and why they did things will have to be made clear to the public and party in the spirit of openness and accountability if we are to move on.

That email was sent to nine people, seven of whom were councillors. The Wirral Globe article referred to was Town hall blunder: Wrong paperwork sent to local government watchdog inquiry. The Chair of the local party at that time was Cllr Pat Williams and the Vice-Chair former Cllr Ann Bridson. The independent report I was referring to was the Anna Klonowski Associates report published in January 2012. My estimate of it being published between July and October of 2012 was a little optimistic. The key to the individuals mentioned in the Anna Klonowski Associates report shows that “Councillor 1” is Councillor Pat Williams. The decision to commission Anna Klonowski Associates Limited to write her report into “an independent review of the Council’s response to the concerns raised by Mr Martin Morton under the Public Interest Disclosure Act (PIDA), in relation to the application of a Special Charging Policy for Adult Social Care service users at Supported Living Units in Wirral between 1997 and 2006” was made solely by Councillor Jeff Green (the leader of the Conservative Group) when he was Leader of the Council in July 2010.

Simon Holbrook probably thought I was referring in my email to the heavily redacted Martin Smith report (of the North West Employers’ Organisation into “Mr Morton’s allegations of bullying, harassment and abuse of power by Council Officers”.

2. Disclosure of Confidential Information

John Brace did disclose on the Wirral Globe website blog, discussions that took place within the Birkenhead Executive Committee. Meetings of the Birkenhead Executive Lib Dems are internal party matters and therefore as such confidential to members of the Liberal Democrats and not for general publication.

These disclosures resulted in a senior Councillor from outside Birkenhead (Phil Gilchrist) being sufficiently concerned to raise the matter with the Constituency Chair (Cllr Williams).

The comments were made on this Wirral Globe article on the Wirral Globe website “Jubilant Labour leader invites Lib Dems to unite”, my comments were comments 5 (which it seems nobody had a problem with), comment 16 (referred to above), comment 17 (which nobody had a problem with), comment 22 (which nobody seemed to have a problem with) and comment 24 (which nobody had a problem with).

This was what Councillor Phil Gilchrist (before I was suspended) put in an email dated 19th May 2011 sent at 6:47 from philgilchrist@wirral.gov.uk to myself Cllr Pat Williams, Cllr Alan Brighouse, Alan Brame, Cllr Kelly, former Cllr Bridson, Roy Wood, Cllr Tom Harney and Cllr Dave Mitchell about it

“Dear John
Thank you for the detailed comments and background.
I had seen the matters referred to on the Globe website during my trawls for information, following the ‘initiative’ announced by Cllr Foulkes.
I mentioned my concerns to Pat as Chair of Birkenhead. It is not my place to comment on internal arrangements in Birkenhead.
My concern is and was that the detailed information supplied to The Globe covered ‘internal workings’ that were being made public. .
I have no information on the matters you referred to, just a desire that we avoid sending out information which has the potential to be used or misused by others.
I do see that you have mentioned taking on board the points raised .
I am grateful that you appreciate that comments can have an impact on the rest of work.
Phil Gilchrist

This was the only allegation upheld by the disciplinary panel. The disciplinary panel met on 6th September 2011 and in a report sent to me on 28th September 2011 said what is below on the matter.

Sanctions
“The panel felt that revocation of membership was too harsh a penalty for a single transgression on a little read “blog”, although it was made clear that Mr. Brace should not publish anything on behalf of the party in future unless properly authorised.

Under English Party Membership Rules 7.10(ii) – that John Brace be barred from any elected office in the party for a period of five years.

Under English Party Membership Rules 7.10(iii) – that John Brace be barred from seeking any elected public office for the party for a period of five years.

This was the unanimous view of the panel.

The Panel expressed their concern about the organisation of Wirral’s selection procedures and felt that the problems should be addressed and resolved.”

In summary then, the disciplinary panel report found that I had been right that candidate selection hadn’t been done according to the party’s constitution and therefore agreed with my version of events but chose to punish me for making it public.

3. Making False Allegations in Public

The matters disclosed in point 2 above questioned the eligibility of Simon Holbrook to have stood as the Lib Dem Candidate in Prenton at the recent local elections. John Brace also questioned the appropriate of Cllr Ann Bridson signing Simon Holbrook’s nomination papers. The allegation is that there was a denial of the democratic process to Birkenhead Party members.

The same blog also contains a statement insulting to all Wirral Lib Dem Councillors which said that when Simon Holbrook says “do something, unfortunately his councillors do it.”

This was withdrawn by Simon Holbrook prior to the disciplinary panel meeting. However as mentioned earlier the disciplinary panel report stated “The Panel expressed their concern about the organisation of Wirral’s selection procedures and felt that the problems should be addressed and resolved.” The second part is a partial quote. The whole quote is “However when Simon Says do something, unfortunately his councillors do it.” which was comment sixteen if you follow that link.

4. Making an Unsubstantiated Allegation of a Complaint

In an email to Cllr Pat Williams dated 19 May 2011 at 00:05, John Brace did allege that former Cllr Simon Holbrook had made a complaint about his conduct, when no such complaint had been made.

In the same email, he made reference to Simon Holbrook’s personal statement that he will not seek elected office in 2012 and concentrate on his professional career and seeks to link that with his own on website blogs with no factual justification.

This allegation was withdrawn by Simon Holbrook prior to the disciplinary meeting.

The email referred to stated “Although I have not been made aware of who is making this complaint, I suspect it is from the former constituency exec member and Prenton candidate Simon Holbrook as that was who my comment mainly related to.”

In other words I didn’t allege he had made a complaint about me I just stated that I suspected he had. At this point I hadn’t been made aware of who was making a complaint to Cllr Pat Williams, but as the complaint was about a comment I’d made about Simon Holbrook I suspected that he was the one who had made the complaint (which is ironic as within a fortnight he went onto make the long complaint that this blog post is about).

The other reference referred to in the email was this “Simon Holbrook (issued by a press release on the Lib Dem website) has stated he will not to stand as a candidate in 2012 and is to concentrate on his Environment Agency. I do not know whether this is connected with my comments made or not. That is his personal choice to make.”

The press release was on the Wirral Lib Dem website and is copied below.

MEDIA RELEASE

Issued by: Simon Holbrook
Date of Issue: May 9th 2011

Statement by Simon Holbrook

“I would like to take this opportunity to thank the many people, council officers, political friends and foes alike, who I have worked with and who have helped me during my 12 years as a Wirral Councillor.

“I am proud to have served as Councillor for Prenton Ward, and thank the many local residents who have supported me and the Liberal Democrats during this time. I would particularly like to thank those people who have stuck with the Liberal Democrats as we have attempted to do difficult things in difficult times.

“For most of my time, Wirral has been a Council where political parties have had to work together to get things done. As Group Leader, I always sought to apply Liberal Democrat influence in the best interests of Wirral people. The past four years have been particularly challenging as a coalition partner to both the other Parties. I am particularly proud of the fact that, during the past 12 months, we have responded to the most difficult financial conditions ever put onto local government, without making the types of cuts made by other councils, protecting front line services and no compulsory redundancies.

“Whilst I shall remain active in politics locally, I now intend to concentrate on my professional career within the Environment Agency. I will therefore not be seeking election in 2012, but do hope to return to frontline politics at some point in the future.

“I pass on my sincere best wishes to all members of Wirral Council in the difficult task that I know still lies ahead of them.”

The most curious bit about part 4 of the complaint are the dates and the timing. Councillor Alan Brighouse deputised for Councillor Pat Williams at a public meeting of Wirral Council’s Children and Young People Overview and Scrutiny Committee on the evening of June 1st 2011. After this meeting finished, he told me in the car park of Wallasey Town Hall that Simon Holbrook had emailed him and Cllr Pat Williams with a compliant about me at some point in the days prior to June 1st 2011. The court order granted by Deputy District Judge Ireland in April 2012 was for this original complaint and email (which had to have been sent prior to June 1st 2011). However part 4 of Simon Holbrook’s complaint refers to something that didn’t happen until the evening of the 3rd June 2011 (which seems impossible). Simon Holbrook writes “In the same email, he made reference to Simon Holbrook’s personal statement that he will not seek elected office in 2012 and concentrate on his professional career and seeks to link that with his own on website blogs with no factual justification.” which is a clear reference to this blog post Birkenhead Liberal Democrat Party Constituency Executive Suspends John Brace and the quote which first appears on it when it was first published on the evening of 3rd June 2011 (it has later had a few revisions) which originally stated “Well, I’ve been suspended from the Liberal Democrat Party following a complaint by Simon Holbrook. I can’t say much more than that (obviously) as contrary to the complaints procedure I haven’t been provided with a copy of the complaint. Having written that, if he is concentrating on his career in the Environment Agency he’s showing a funny way of doing it!”

5. Seeking to Attend a Civic Function without an Invitation

That together with Leonora Brace, John Brace did seek to attend the celebration party following the Mayor Making ceremony despite not having received an invitation to the event. When challenged, John Brace did inappropriately attempt to claim that his possession of a ‘Press Card’ entitled him to attend this invitation only civic function.

Note: John and Leonora Brace did attend part 1 of the Annual Council meeting from the public gallery, which they are entitled to do so.

This allegation was withdrawn by Simon Holbrook prior to the disciplinary panel meeting. It’s untrue and probably so for a number of reasons which I will state here. Part 1 of the Annual Council meeting has been held every year prior to May 2011 for as long as anyone can remember in the Civic Hall at Wallasey Town Hall. There is a gallery above the Civic Hall but in the time period referred to by Simon Holbrook nobody was permitted to be in it as it was classed as “unsafe”. It’s only in more recent years when I’ve been filming the Annual Council meeting that I’ve been in the public gallery in the Civic Hall as Council employees insist I couldn’t film anywhere else as it was a “fire hazard”.

I will state a few things here that also will show that I wouldn’t want to attend a celebration party. I have a diagnosed special dietary requirement (a fact that is probably unknown to Simon Holbrook) called lactose intolerance. I have to follow a gluten-free and dairy free diet. Therefore anything that would be available to eat at a “celebration party” I wouldn’t be able to anyway. In fact I can categorically state that I’ve never gatecrashed a celebration party following part 1 of an Annual Council meeting.

However part 1 of the Annual Council meeting is a public meeting (as pointed out in the complaint), the public have a right in law to be there. I do remember one year someone (probably working for the Mayor’s office) asking me for my invitation on the way in to the Annual Council meeting in the Civic Hall and I pointed out to this person it was a public meeting, that I didn’t need an invitation and had a right in law to be there as it was a public meeting. I was then asked what I was planning to do at the end of the Annual Council meeting to which I answered I would be leaving (which I did). If memory serves me correct about what happened the same person came over to me again once the meeting had finished and people were leaving and asked us again if I were leaving (this happened near the stairs just outside the Round Room). I explained that as my wife has mobility problems I would be helping her down the stairs (she’s claustrophobic when it comes to lifts) and that I was waiting for a sufficient gap in the crowds of people who were milling around in order to do so safely as I was concerned that I didn’t want her to be jostled which would cause her to fall. Quite how this series of events morphed into Simon Holbrook’s spurious, fanciful and totally untrue allegation about what happened I’m not sure.

6. Giving a False Impression of Holding Public Office

In a separate blog John Brace did write -“Although in theory I hold the position of councillor, it’s not with Wirral Council and like the Mayoress of Wirral Mrs Jennings is unelected so am I, as like with the Mayoress it’s to do with who I’m married to.”

This remark appeared in a blog speculating about the future shape of the Council administration. Although its purpose is unclear, it does seek to give credibility to the comments through claiming an association with a public office.

This allegation was withdrawn by Simon Holbrook before the disciplinary panel meeting.

This is the blog post referred to written on 11th May 2011. The whole quote (in context) is

“It’s strange of Cllr. Foulkes and his Labour councillors to pursue a strategy of going after the Lib Dems for five weeks, then be all smiles and wanting our help after Labour have lost control in 2010 and are desperate to get a sniff of power. Admittedly all parties behave like this to varying degrees, the Conservatives saw this coming and have (thankfully) told the public some of the skeletons in the cupboard of the previous Labour administration.

What will happen? It’s up to the ten Wirral Lib Dem councillors to decide. Although some residents think I hold the position of councillor, I do not with Wirral Council. The Mayoress of Wirral Mrs. Jennings is unelected so am I, as like with the Mayoress it’s to do with who I’m married to.”

This was a reference to my wife holding a position on the Council of Elders which governs a reservation where she’s from in Canada. The quote used alleges I am a holder of public office, however if the comment is actually read it shows that although some people may think that, I did not. I am married to Leonora and that is the position she holds.

7. Did Make Allegations in his Blog of Irregularities in the Count

In a blog following the local elections, John Brace claimed that the votes had not been counted properly. He sought to compare the declared result with his own canvass returns to justify his claim that his own votes had not been counted properly. In the same blog, he inappropriately said that a large number of votes in Oxton changed hands on the recount.

This is the blog post referred to. The issues were (as explained in the blog post) to do with errors made at the count. Here’s what I put “No yellow 25s were initially handed out to counters. This was raised by myself as candidate as to why the Lib Dem votes weren’t being counted.”, “The counters soon ran out of 25s so 25s from different parties were used. This meant each candidates’ total was a mixture of colours and instead of using separate trays, one tray was used for Labour, the Conservative and UKIP votes were put in a second tray with the Lib Dem votes hidden from view behind a ballot box.” and “We only have to look at the Oxton recount to see how a large number of votes changed after being recounted.”

This is just a factual account of what happened at the count. The Deputy Returning Officer before he declared the result in Bidston & St. James agreed with me and took some votes off the Labour amount before the result was declared and added them to my total as a compromise as he didn’t want to have to do a recount. The result in Oxton (after a recount) was that Stuart Kelly got 1,918 votes and Matthew Patrick 1,792 (a majority of 126). However the original count of the Oxton votes put Stuart Kelly’s majority as much larger at around two hundred.

8. Making an Unjustified Complaint against a Lib Dem Councillor to the Standards Board of England

John Brace did report Cllr Ann Bridson to the Standards Board over the seating arrangements for members of the public at a meeting of the Health Scrutiny Committee. The complaint was investigated at significant public expenses and was dismissed as unfounded.

The complaint had the potential to be damaging to the reputation of a party colleague, yet at no time did John Brace seek to discuss the matter about which he felt aggrieved with Cllr Bridson, or any other member of the Liberal Democrat Council Group.

Well this is what the disciplinary panel stated in their report “The panel found this not proved.”

Firstly, I have never made a complaint about Councillor Ann Bridson to the Standards Board for England. In fact the law at the time stated only Wirral Council could do that. I did discuss it with Cllr Bridson and Cllr Williams before making the complaint.

However I did make a complaint about former Cllr Bridson to Bill Norman (who was then Monitoring Officer at Wirral Council). This complaint was never referred to the Standards Board for England. The complaint about former Cllr Bridson that was referred to the Standards Board for England was the one made by Martin Morton about her and other councillors. The statement that I didn’t seek to discuss the matter with her before making the complaint is untrue.

From my signed witness statement “21. I did raise with the Chair after the meeting the issues about disability and her Committee had a specific responsibility for these. I did not want the events repeated again at this discussion she said that she was not prepared to listen to arguments from members of the public. 22. I was surprised and shocked by what she said.”

From my wife’s signed witness statement “17. After the meeting they had approached the Chair. She [Leonora Brace] became engaged in conversation with a Councillor close by, while her husband was speaking to the Chair [Ann Bridson] and I did not hear the full conversation. She could hear well enough to know that attitude of the Chair [Ann Bridson] was not good. She [Ann Bridson] was shouting in a loud voice and she [Leonora Brace] heard her [Ann Bridson] say this is “not the time nor the place” for speaking. 18. In Mrs Brace’s creed there is great emphasis put on the need to be polite. The Chair was not being polite.

From Ann Bridson’s signed witness statement “24. John Brace may have approached me at the end of a meeting in the last 7 months, and I may have suggested his enquiry/comment was inappropriate at that time. However really I cannot recall.” and “31. On another issue relating to the course of this complaint and regarding the Liberal Democrat Party, John Brace had emailed the Chair of the Liberal Democrats [Birkenhead] Constituency Committee [Cllr Pat Williams] that he had made a complaint about me under the Council’s standards procedures. The Chair of the [Birkenhead] Constituency Committee had sent that email out to all members of the Executive Committee and at the next meeting when this was made clear to me, I felt obliged to say in front of the Committee that it was not a complaint that related in any sense for example fiddling expenses or an income tax offence.”

The Deputy Monitoring Officer at the time Surjit Tour wrote the covering report about the complaint to the Standards Initial Assessment Panel meeting of 20th December 2010. The detailed report of the ethical standards officer Mr David Swallow was also submitted to the Standards Initial Assessment Panel.

I asked the Chief Executive of Wirral Council Graham Burgess at the public meeting of the Improvement Board in November 2013 a question about how this standards complaint had been handled. A record of the questions and answers of Wirral Council are published on Wirral Council’s website.

My question was:

8. A separate and unrelated complaint about one of the four Councillors referred to above (ref SfE 2010/02) was decided on the 20th December 2010. However the covering report sent to the panel which decided was incorrectly titled “Report of the Monitoring Officer – Case Reference 2010/03″. This report to the panel also omitted that the original complaint referred to an alleged breach of 6(a) of the Code of Conduct. As an apology was given for an administrative error to the complainant referred to in question 5, will an apology for this administrative error be given to the complainants of complaint reference SfE 2010/02 and the subject of the complaint?

The answer of Wirral Council is perhaps typical of what would be termed “spin”. Other people may comment that it goes further than that.

This is the answer “The administrative error was that the number 3 was put into the complaint reference instead of number 2. The complaint, relating to an alleged breach of the Code of Conduct was considered by the Standards Committee Initial Assessment Panel which concluded that no action should be taken as there was no evidence to support the allegations. The minor typographical error had no detrimental impact on the complainant as all of the content was correct and considered, and as the panel found no evidence of wrongdoing it would not be appropriate to issue an apology.”

Firstly it was allegations of breaches of the Code of Conduct not “an alleged breach of the Code of Conduct”. If I remember correctly about what was in the decision notice, the Standards Committee Initial Assessment Panel accepted the recommendations of the ethical standards officer David Swallow. The ethical standards officer stated in his report that the sections of the Code of Conduct alleged to have been broken were

“3. (1) You must treat others with respect.

5. You must not conduct yourself in a manner which could reasonably be regarded as bringing your office or Authority into disrepute.

6. You (a) must not use or attempt to use your position as a Member improperly to confer on or secure for yourself or any other person, an advantage or disadvantage”

However Surjit Tour’s covering report just mentioned the following two:

“5.1 The relevant parts of the Code in relation to this complaint are:

Paragraphs:

3. (1) You must treat others with respect.

5. You must not conduct yourself in a manner which could reasonably be regarded as bringing your office or authority into disrepute.”

The Standards Initial Assessment Panel accepted the three recommendations in the ethical standard officer’s report which were:

“10 My Recommendations are that –
10.1 The finding that there has been no breach of the Code be accepted;
10.2 No further action be taken in respect of this matter and the case be closed
10.3 As to general issues maybe highlighted by this matter, some consideration be given to the issues raised in this Report as to the facilities made available to those with disabilities in attending meetings of the Committees – eg positioning of the water machine; reservation of seats for those with disabilities.”

The statement by the Chief Executive that “no action should be taken as there was no evidence to support the allegations” is therefore ludicrous as one of the recommendations (10.3) agreed by the Standards Initial Assessment Panel was that consideration should be given to the issues raised in this report.

At the public meeting of the Transformation and Resources Policy and Performance Committee last Monday Councillor Phil Gilchrist complained that he couldn’t hear what was going on because of the noise of the tea/coffee machine and asked for it to be turned off. So recommendation 10.3 was never actually put into action. The Chief Executive’s assertion that “all of the content was correct and considered” is untrue due to Surjit Tour’s admission. As to “no evidence of wrongdoing”, there’s plenty of evidence (see above) but when it comes to allegations of disability discrimination involving Wirral Council, well due to the culture no-one is ever found to be accountable however much evidence there is are they?

P.S. You may well say, well you can’t do this John, what about s. 63 of the Local Government Act 2000 which makes disclosure of the above in relations to a standards complaint a criminal offence? Well as regulation 5(d) of The Localism Act 2011 (Commencement No. 6 and Transitional, Savings and Transitory Provisions) Order 2012 meant that part 5, schedule 25 of the Localism Act 2011 had the force of law from the 1st July 2012. Part 5, schedule 25 of the Localism Act 2011 repeals sections 56A to 67 of the Local Government Act 2000.

This also means (despite the legal advice the Standards Committee has been given in the past) that there is no reason in law why previous reports about standards complaints about other Wirral Council councillors can’t be released to the public.

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ICO rules Wirral Council breached Data Protection Act over blunders and insists on further undertaking

Wirral Council are in trouble with the Information Commissioner’s Office again over yet another set of blunders. This time they sent “sensitive personal information” to the wrong address (multiple times) which in one case included details of a criminal offence. The mistakes happened in February and again in April of this year.

The Information Commissioner’s Office is also aware of three previous disclosure incidents reported to them over the past sixteen months. Prior to this period there was the incident where Wirral Council accidentally published a whistleblower’s name on their website.

When the Information Commissioner’s Office investigated, they found that Wirral council had “no mandatory data protection training in place for staff and did not have adequate checks in place to make sure records were being sent to the correct address”.

Information Commissioner’s Office Head of Enforcement, Stephen Eckersley, said:

“While human error was a factor in each of these cases, the council should have done more to keep the information secure. Social workers routinely handle sensitive information and Wirral Borough Council failed to ensure their staff received adequate training on how to keep people’s information secure.

“We are pleased that the council has now made its data protection training mandatory for all staff following these incidents and has agreed to take further action to address the underlying problems that led to these mistakes. This includes ensuring that all staff complete the data protection training by the end of June and adequate checks are in place to make sure sensitive records are being sent to the right address.”

Wirral Council’s Chief Executive Graham Burgess has had to sign an undertaking that Wirral Council will change and do better in the future. Last year Wirral Council had to sign a similar undertaking after their poor performance with Freedom of Information Act requests following concerns raised by the Information Commissioner’s Office.

Joe Blott, Wirral’s Strategic Director of Transformation and Resources, said “We take these matters very seriously. As soon as we discovered the errors, we self-referred to the ICO and took immediate steps to discover what went wrong, and make sure we do what is necessary to ensure it doesn’t happen again.

We have taken on board the ICO’s concerns, and have improved our data protection compliance. This has included training for staff with access to confidential and sensitive data, and a re-iteration of how we can and should endeavour to keep confidential information safe.”

Original sources:
ICO Press release 15th April 2014 “Merseyside council agrees to improve practices after social service records sent to the wrong address”
Wirral Council press release 15th April 2014 Council commits to improve data protection following Information Commissioner’s ruling

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