The Information Commissioner (IC) states that a "Subject Access Request" (SAR) is a "fundamental right" allowing individuals to obtain a copy of their personal data, and certain supplementary information, from Councils ("data controllers"). But in an extraordinary recent decision the IC has created a massive loophole allowing corrupt local authorities and monitoring officers to subvert the entire process.
The "Normal Procedure"
Faced with a SAR local authorities usually provide the applicant with a list of all documents referring to him/her or, alternatively, supply copies of the relevant data e.g., copies of emails and other correspondence. Often the Council will redact (conceal) a considerable amount of information, usually on the basis that the documents refer to "third parties".
This is the first Kafkaesque headache for the applicant since some documents are so heavily redacted as to be utterly meaningless. But it is difficult and time-consuming to appeal this to the IC when it is totally unclear whether the redactions were lawfully applied in the first place!
Background to the present issue
Since 2014 councillors and staff (including practising solicitors) at a Metropolitan Borough Council (MBC) have waged a vicious vendetta against a local blogger who has been exposing their multiple misdeeds. Part of the taxpayer-funded war on the citizen journalist involved seriously incomplete responses to his SARs.
In 2018 the blogger submitted a new SAR. The statutory Monitoring Officer (a practising Solicitor) decided to conceal a large number of documents from the disclosure. The blogger contends that this was a deliberate and unlawful act. The MBC has declined to comment on the reason for the incomplete disclosure which one might think odd if it was claiming that the Monitoring Officer had acted in error and not, as the blogger alleges, deliberately.
In an effort to conceal the non-disclosure the statutory Monitoring Officer did disclose four lever arch folders of emails passing between the blogger and the Council which was absurd as these were documents the blogger had already seen or actually produced (and he also held copies in any event). The additional documents eventually supplied showed, inter alia, a history of employees (including trade union officials) being engaged in covert surveillance of the blogger in various forms - none of which were via the Regulation of Investigatory Powers Act 2000.
To further cover his tracks the statutory Monitoring Officer did not send the four lever arch folders to the applicant in the usual way, but arranged for them to be sent via an expensive firm of London Solicitors, Howard Kennedy.
Five years later this matter is still rumbling on. The IC decided, without giving reasons, not to sanction the Council in any way for the significant and material non-disclosure in this, and a number of other instances.
The blogger made a Freedom of Information Act (FOIA) request in respect of the actual involvement of Howard Kennedy in preparing the incomplete SAR disclosure. The Council has now admitted that Howard Kennedy had no involvement at all in preparing the SAR documentation and no access whatsoever to the Council's own record systems.
This very expensive firm only charged the Council £148 plus vat for receiving the four lever arch files and then sending them staright out again.
The obvious inference from this is that Howard Kennedy were NOT involved in giving legal advice in respect of the SAR at all, and were simply used as a postbox by the statutory Monitoring Officer to provide a veneer of legality to his material non-disclosure. As above, there has been no claim by the Monitoring Officer that he acted in error. In fact, he has sought to conceal his material non-disclosure by claiming that his involvement with Howard Kennedy is subject to non-disclosure by reason of Legal Professional Privilege (LPP).
The ICO agrees despite the fact that (a) the Council admits that Howard Kennedy did not have any actual involvement in the deceitful non-disclosure, and (b) seemingly gave no actual legal advice in the process, and (c) the only purpose of using Howard Kennedy was as a postal service and not to seek any legal advice.
One might have assumed that a senior statutory Monitoring Officer at a large MBC would actually know the law regarding SARs and should not need to use taxpayers' money to go to expensive external solicitors. As it is, Howard Kennedy were not involved in the SAR at all and, it seems, were only instructed as the blogger alleges, in a feeble attempt by the Monitoring Officer's own conduct.
The IC has not indicated what advice it claims the Monitoring Officer sought and was given - possibly because there was no such process (as the blogger alleges). The blogger says that he is unaware of the IC making any attempt to discover whether the supposed seeking of advice was actually factually correct (whether done fraudulently or not). There must be a paper trail where the Council wrote to Howard Kennedy with the four lever arch folders telling them where to send them, but the IC does not appear to have reviewed this.
The blogger states, "the ICO is giving errant statutory monitoring officers and/or other Council staff a route to cover their own unlawful actions simply by asking an external firm of lawyers to act as a postal service for sending out false SAR responses to applicants. This cannot be right".
Addendum - 18.03.22 The Council have now told the Blogger and ICO that rather than the Howard Kennedy fees being £148 ex VAT they were, in fact, £2,565 ex VAT. The Council claims to the ICO that this was a "mistake". The latest admission begs the question why an experienced Monitoring Officer would send the SAR he had prepared to external Solicitors for onward transmission? As Howard Kennedy played no part in preparing the SAR nor had any access to the Council's records to check the contents, this appears to be an unnecessary and egregious waste of public money.
Are there any lawyers out there who can help the blogger?
This is the second case the blogger is currently taking to the Information Rights Tribunal (as a litigant in person) where he alleges that spurious claims of legal professional privilege are being claimed by the (same) Council to conceal fraudulent activity. He understands the position with regard to LPP, but would appreciate any case law where claims for privilege have been defeated due to fraudulent conduct by solicitors.
rottencouncils@gmail.com
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