The Freedom of Information Act 2000 is a feeble piece of legislation as it is, but it includes a criminal offence where information is deliberately withheld, destroyed etc. However, even when faced with multiple examples of a local authority lying to it and subverting the Act the ICO has declined to take any action. Things get no better at the Information Rights Tribunal where that body is, apparently, unconcerned when presented with false evidence
Sandwell Metropolitan Borough Council (SMBC) has repeatedly lied to the ICO for several years with complete impunity. Now a local journalist writing on Sandwell issues has pointed out a major discrepancy in a case presented to the First Tier Tribunal. Another feature of this matter is the incredible length of time it takes to get to this truth - in this case, literally years.
Here is a letter (with minor redactions) the journalist sent to the Tribunal and ICO last December. Inevitably, there has been no response whatsoever.
[Sandwell is no longer in "Special Measures" but shows few signs of improvements in the "poor governance" of yore.]
Email - 13/12/23
THIS IS A PRIVATE AND CONFIDENTIAL COMMUNICATION FOR 28 DAYS ONLY
I have repeatedly informed the ICO and Information Rights Tribunal of the corruption influencing SMBC to lie to the IC and the Tribunal. The only outcome of this has been abuse of me personally and, in one case, mockery of me by a Judge of the Tribunal in the course of a live hearing (which will shortly be the subject of further correspondence). I would respectfully remind the Tribunal and the ICO that SMBC are currently in Government "special measures" due to serious governance concerns (at huge cost to the taxpayer).
Case EA/2019/0179 arose from the wrongful suspension by SMBC of the secretaries working for Cabinet members on the basis of a false allegation. I made a FOIA request in respect of the sordid affair which was substantially refused. The matter proceeded via the ICO to a full Tribunal hearing led by Judge Holmes.
Although SMBC had (once again) lied to the ICO about the availability of disclosable documentation, a large tranche of same was magically "found"" prior to the Tribunal Hearing and 631 days after the date of the original request.
David Stevens, the now disgraced and former Chief Executive of SMBC, gave evidence both orally and in writing. SMBC played the same argument it also used in another Tribunal hearing. Stevens dealt with my complaints about SMBC's late disclosure of documents by informing Judge Holmes and the Panel that he had ordered an "investigation" into the original handling of my FOIA request. [Editor's Note: needless to say nothing ever came of this alleged investigation.]
In respect of the substantive issue he played a trick also used by SMBC at another Tribunal Hearing, telling the Tribunal that he had ordered a brand new investigation into the substantive issue (here, the wrongful suspensions) so that SMBC could rely on s.31 to avoid further disclosure since that may prejudice the ongoing "new" investigation. (See further below.)
I made a further FOIA request in respect of the alleged new investigations by the now disgraced Stevens. Whilst this has only been partially successful, new documentation disclosed casts considerable doubt on the evidence given by Stevens. I should add that SMBC - once again - only managed to find documentation which it had "missed" when dealing with the original request AND an internal review after the intervention of the ICO.
It is noteworthy that the actual hearing was part-heard on the original date of 30th October, 2019 and went over to a second date being 30th January, 2020.
It is now clear that Stevens did order a desk-top evaluation of the handling of the original FOIA - probably by a senior employee called Neil Cox - but that this was concluded by mid-November, 2019 - at the very latest - with a decision not to continue with any further action. Whilst this was after the date of the first half of the hearing it was some two and a half months before the second half of the hearing but that information was deliberately concealed from the Panel. Stevens admitted at bundle page 119 para. 11 that the preliminary "fact finding" was done on 13th August, 2019 but at para 14 on the same page he added, "I can confirm that this matter is being looked into to understand why this occurred". Neither he nor Mr Hopkins of Counsel informed me, the ICO, or the Tribunal itself that no further action was being taken when this was known weeks before the second part of the hearing.
Stevens did also commission a supposedly independent report from West Midlands Employers (WME) into the actual suspensions, which SMBC has also refused to disclose via my second FOIA request. I say that WME is not truly "independent" but the real relevance here is, again, the dates. At page 119 para 13 of the bundle Stevens said he received the Report on 17th October, 2019. [Editor's Note: BEFORE the first hearing.] He stated, "The report indicates that the matter [i.e. the suspensions] was not dealt with appropriately. The report considers whether the Council should be taking any action, disciplinary or otherwise, against the officers who dealt with the matter".
The "independent" Report was commissioned very shortly before the Tribunal hearing was due - I say in a deliberate attempt to nix it - but Stevens told the Panel (bundle page 121 para. 23) "The matter is still live: my investigation could result in action being taken against other council officers for their conduct during the suspension, investigation and handling of the original FOI. Public disclosure in these circumstances would be highly prejudicial to this investigation". Leaving aside - for now - that this was straight out of the playbook used by SMBC in another Tribunal case and - I say - that the "independent" report was due to be a whitewash, the fact is that the latest FOI clearly shows that by December, 2019 any issues arising from the Report were concluded with the last communication on the subject dated 6th January, 2020 - 24 days before the second half of the hearing. Neither myself, the ICO or the Tribunal were informed of this.
For the avoidance of any doubt SMBC stated in the second FOIA response that the outcome of the investigation into the suspensions "was that no further action should be taken against any officer". If that was actually in the Report then Stevens knew this even before he wrote his original statement and before he gave live evidence to the Tribunal. I was under the impression that constitutes perjury? In any event, he definitely knew before the second hearing but allowed the deceit to lie on the record.
There were solicitors from SMBC as well as Mr Hopkins of Counsel at both hearings but the facts were concealed. Yet as Judge Holmes's judgment reads at para. 82:
"Mr Hopkins went on to refer to the statement of David Stevens at, at para 23, where he states that the matter is now live again and could result in a further investigation. If there is any doubt in January, 2018. there is no doubt now, and there could be further disciplinary action (i.e. against other persons, not the secretaries). There would be dangers if this information was put into the public domain before any investigation had run its course ..."
Whilst Mr Hopkins has been very willing to make written attacks on me in a number of Tribunal cases only to withdraw them at the commencement of live hearings, I somehow doubt that he has deliberately tried to mislead the Panel but Stevens and/or SMBC Solicitors did so mislead.
I understand that the Panel eventually concluded, in effect, that my original FOIA had been too early and that it should view the position as at January, 2018 but the fact remains that much Tribunal time was taken up with arguments about a supposed ongoing investigation which had, in fact, been concluded. For example, Mr Hopkins made submissions about the possibility of a "steps direction" given the supposedly ongoing "new investigation". If the Tribunal was aware that there was no further ongoing investigation would it have found differently? Possibly not, but I am thoroughly sick of having MY character and reputation impugned by SMBC xxxxxxxxx when they have repeatedly lied to the ICO and the Tribunal over a period of several years. Just recently the ICO - xxxxxxxxxxxxxxxxxxxxxxxxx - applied twice (and failed twice) to strike out further Appeals to the Tribunal. I am just wondering when someone in authority is going to get a grip on all this and ensure that firm action is taken against SMBC employees (including solicitors) who continue to act unlawfully and mislead the Tribunal?
Julian Saunders
THE SANDWELL SKIDDER - COMMUNITY NEWS
rottencouncils@gmail.com
