Wednesday, 25 July 2012

Mrs Angry, a lesson in law from Barnet Council, and a response

the law is a ass, apparently, in Broken Barnet

Dear Mrs Angry,

Re: Inspection of Documents

I refer to your email communication, of 13th July, addressed to Andrew Travers. I am responding to your email communication as Andrew Travers is presently away from the office, on leave.

Given that you have set out the relevant legislation in your email, I will not set it out again, but I will make reference to it.

Section 15 (3) and (3A) removes, from the right of an elector to inspect the accounts and documents relating to them, accounts or document which contain personal information, being information which identifies a particular individual or enables a particular individual to be identified and the auditor considers that the document(s) should not be inspected or disclosed.

I confirm that the external auditor has approved the Council’s approach of redacting such information and further confirm that the relevant information has been redacted on this basis.

In addition, Section 15 (3) and (4) removes the right of interested persons to inspect the Council’s accounts to be audited and all books, deeds, contracts, bills, vouchers and receipts relating to them and to make copies of all or any part of the accounts and those other documents where the accounts or other documents contain information about a member of staff and the, remaining, requirements of Section 15 (4) (a) and (b) are met.

Again, I confirm that redaction of documents has taken place, on the basis of this provision.

With respect to ‘commercial confidential information’, to which you have referred, I confirm that the Council has, on the basis of the Court of Appeal decision in the case of Veolia ES Nottinghamshire Ltd) v Nottinghamshire County Council [2012] redacted commercial confidential information. Any redactions on this basis were not ‘… political decisions’, but, rather, a balancing act between the public interest in transparency, particularly where the dealings of public authorities and the use of public money is concerned, against the public interest in the maintenance of valuable commercial confidential information. In the view of the Council the issue of ‘commercial confidential information’ is not limited to publication of information but is relevant to inspection of accounts and documents relating to the account: the Court of Appeal, in the Veolia case mentioned above was, indeed, concerned with the right of inspection under Section 15.

The Council fully appreciates the importance of the role played by electors in assisting the auditor in his audit and has no intention of obstructing you and/or other residents from viewing the accounts, in accordance with the rights and subject to the reservations set out in 15(3), (3A) and (4)”.

Kind regards

John Hooton
Assistant Director, Strategic Finance

Mrs Angry has replied:

Dear Mr Hooton,

Thank you for this response, which, I am afraid I find to be completely inadequate.

I am well aware of the Veolia case, and I note that you have chosen to interpret the findings of this case in a subjective and carefully selective manner.

If you recall, the judgement in this case referred to a public need for transparency and stated that there should be no absolute bar on material, rather a balancing act between commercial sensitivity and the public interest. Clearly Barnet Council has chosen to ignore this finding and has chosen to use the pretext of - originally - commercial sensitivity, and now, latterly, 'personal information', for purposes of its own, ie to obstruct the proper scrutiny of its accounts, which is unlawful.

There has never been any need to redact any personal information, or any commercially sensitive material, from Barnet's accounts in this instance, for several reasons:

1. The law makes it perfectly clear that the original documents should be made available. If material had been specifically exempted from the public domain, there might be an argument for redaction, although in the case of the elector's right to inspect the accounts, the over riding importance is so as to enable the individual to raise any related concerns with the authority's auditor. This is not a case of the risk of publication of such material: should such an act have ensued then this would have had its own consequences. We made it perfectly clear on our visit - and this is a matter of record - that we had no intention to publish any such material.

2. Although the law provides for the possible redaction of personal material, this is a matter for the auditor to decide. Despite your attempts to present a later decision by the auditor to defend the redaction of personal information for individuals working for a private company or supplier, this is a retrospective decision. Mr Mustard, prior to this retrospective judgement, had already been told by Mr Hughes in an email that he had not been approached about such a matter. May I quote the following confirmation, sent at 1.14pm on July 13th, by Mr Hughes, in response to his enquiry specifically about this point:

"The understanding you obtained from officers was correct, in that I was not involved in any discussions about providing or withholding information."

On Thursday July 19th, however, an officer emailed Mr Mustard quoting an extract from another -undated - email from Mr Hughes, which would appear to be a retrospective intervention sought after the event - and a partial one.

The auditor has responded as follows:

‘For individuals not employed by the council (e.g. individual named consultants working for suppliers) I have considered whether there is any reason why this information should not be disclosed. In line with guidance from the Audit Commission, this has involved consideration of weighing the rights of an individual to inspect information against the nature of the information and the potential consequences of disclosure on individuals who can be identified from it.

The factors I have considered and reached a view on are:

    • the relevance of the names of individuals within suppliers to the ability for electors to exercise their inspection rights, i.e. does the absence of a specific named person impair an elector's ability to understand the substance of the transaction in question? My view is that the absence of individuals details would not impair this ability.
    • potential consequences for individuals if information pertaining to them is disclosed, i.e. the likelihood of their personal information being published and commented on more widely. Based on relevant local experience, in my view it would be possible that individuals would be named and commented on in blogs and other media to an extent and in a manner that could result in personal consequences for them.
    • whether the individual identified has chosen to place themselves in the public domain (or could reasonably expect to have their information disclosed). In my view, whilst companies supplying councils can reasonably expect their names to be in the public domain, individuals working within those companies would not necessarily expect that their personal details would not be disclosed.
In my view, the right to inspect is outweighed by these other factors so I would conclude that information relating to individuals working for suppliers should not be disclosed.’

Please note anyway that Mr Hughes specifies individuals working for private suppliers, in the extract, and not council officers. And one might reasonably question why, at our meeting with Mr Hughes, he informed us that he held no view on the matter of redaction, and that it was a matter purely between the council and us as residents. As an allegedly independent auditor, to state now that he supports some redaction is rather surprising, when he had no earlier opinion on the matter.

3. The law, even as interpreted in the Veolia case appeal, does not provide for the wholesale redaction of any material that an authority pretends is 'commercially sensitive' simply for political reasons. We have already presented you with plenty of evidence showing that material was redacted on a widescale, deliberately obstructive basis, with no genuine relevance to commercial sensitivity. In one case, the page where a contractor was asked if any of the information was to be exempt the company had clearly marked N/A all the way through the form, yet your officers needlessly redacted everything within the document.

4. The reference made by Mr Hughes in relation to bloggers is the crucial point here: all three Barnet residents and bloggers who came to see the accounts have written extensively about several extremely significant matters relating to the governance and administration, or failures in governance and administration, of Barnet Council. We were the 'armchair auditors' who publicly exposed the MetPro scandal - to the publicly stated approval, you may recall, of Mr Pickles, and indeed of Councillor Lord Palmer, the Chair of Barnet Council's own Audit Committee - and revealed the widespread incompetence by the authority in matters of procurement, tendering and contractual processes. A huge number of contracts with private suppliers were found to be non compliant, a scandalous state of affairs and one which represented a serious misuse of public money, paid to private contractors without the appropriate safeguards in place to ensure proper efficiency in terms of value for money for residents. Unfortunately the auditors, both internal and external, had failed to notice these very serious failures in procedure.

By examining council records and making our own investigations, we have continued to find further irregularities, and the purpose of our visit to view the accounts was specifically in order to investigate similar matters of public interest, in order to raise them with the auditor on behalf of the residents and taxpayers of this borough. All the excuses which you are now seeking to provide to justify the obstruction of our right to see the accounts are totally spurious and we intend to continue to fight this unlawful act by the authority through the appropriate channels.

Yours sincerely,

Mrs Angry


Cneifiwr said...

Go for it, Mrs A. As you may know, we here in Carmarthenshire are about to embark on the same process, and I bet they're redacting away for all their worth. As Carmarthenshire deems proposals for the transfer of a few public loos from the county to community councils to be a commercially sensitive issue which may not be disclosed, I think we already know what to expect when it comes to inspecting anything involving consultants, law firms, contractors and the like.

Mrs Angry said...

As so many public services are being pimped out to the private sector, it is essential,being clearly in the public interest, that the principle of accountability is extended to companies providing such services. As it is the excuse of 'commercial sensitivity' is being misused by those seeking to avoid scrutiny. It is time to take a stand and challenge such evasion and obstruction. If the government is sincere in its localism based drive for greater transparency, it will adopt measures to counter this regrettable tendency. Over to you, Eric.