Proops KC on Local Authority Employers' Liabilty

In our post dated 27th April, 2023 (link below) we reported that Anya Proops KC (QC at the time of her 2018 Opinion) told Sandwell Metropolitan Borough Council (SMBC - currently in Government “Special Measures”) that it was lawful for it to use The Local Authorities (Indemnity for Members and Officers) Order 2004 (“The 2004 Order”) to indemnify an employee in respect of critical comments by a Blogger about content on her personal Twitter account.

https://rottencouncils.blogspot.com/2023/04/anya-proops-kc-extends-scope-of-local.html

In February, 2021, SMBC admitted to the Information Rights Tribunal that its Head of Legal and statutory Monitoring Officer, Surjit Tour, used Ms Proop’s Opinion to secure the Council’s agreement to fund Lisa McNally (then SMBC’s Director of Public Health) in a private legal action against the Blogger. The action was struck out at a very early stage by the High Court as having no real prospects of success, but at a loss to the taxpayer of around £100,000.

The curious aspect of this is that Ms Proops must have been considering either a hypothetical case in 2018 or issues relating to the personal Twitter account of a different, unidentified, employee since, at the time, McNally had not yet been employed by SMBC. n

Now there is another twist to the tale since it is now clear that Proops also advised the Council that it could also indemnify an employee relating to their personal use of social media under the principles of employers' liability law. Once again, Mr Proops must have advised in 2018 in respect of a hypothetical case or in respect of a different, unidentified, employee.

A document now shows that when Tour asked the political leader of the Council for authority to use public funds to subsidise McNally (who earned between £105,000 and £109,000 per annum) he did not mention The 2004 Order at all. On the basis of Ms Proop’s 2018 Opinion he wrote:

“The Council supports Lisa McNally in this claim, pursuant to its duty of care towards her.

The Council has a duty of care towards its employees. Employers, including the Council, must provide a safe place of work. The duty extends to mental well-being as well as physical well-being. In determining if an employer has complied with this duty, a court would decide whether the employer has taken reasonable care of an employee, have they done enough? It would also have to determine if the injury caused to the employee was related to the actions or failure to act of the employer and if the injury was reasonably foreseeable.

In this case, Lisa McNally has been subjected to attacks from an individual, through their publications, for a number of months. Lisa McNally has suffered injury because of this; to her mental well-being. It can be reasonably foreseen that if the Council does not act to take reasonable care of the employees, further injury will be caused to her.

It is very important that the Council complies with its duty of care towards employees, taking steps to protect them from abuse, harassment and oppression received because of their employment [my emphasis], and trying to prevent further occurrence of similar behaviour.”

Initial Comments:

Tour does not mention The 2004 Order here at all. In the protocol process after the initial letter of claim the Blogger pointed out that Tour had no legal basis to indemnify McNally in respect of personal litigation and that clearly The 2004 Order did not apply to issues arising from the conduct of an employee acting outside the course of his/her employment. Tour and his large team insisted to him, and to his Solicitor, that The 2004 Order did apply in this case without mentioning Ms Proop’s Opinion. As we saw in the April post herein, Tour admitted to the Tribunal that Proops has authorised indemnity on the basis of The 2004 Order in a hypothetical or different case.

The emphasised words, “because of their employment” is of particular note. Perhaps Ms Proops had this in mind in 2018 when advising on a hypothetical or different case since she presumably did not envisage that an indemnity would be provided for the personal litigation of a highly-paid employee in respect of their use of a personal Twitter account? But, nevertheless, Tour told the Tribunal that Ms Proops’s Opinion provided the legal basis to use taxpayer funds to indemnify McNally.

[In the course of the litigation the Blogger presented evidence that McNally (a Clinical Psychologist) used her personal Twitter account to attack individuals (including medically-qualified ones) who did not agree with her views on the handling of the Covid pandemic. As we wrote in April, she regularly questioned the Government’s handling of the pandemic (including the views of expert bodies advising it) despite being in a politically-restricted post. She also followed, and engaged with, a number of troll accounts (which the Blogger identified) which were actively attacking the Blogger himself. It is noteworthy on a legal point that Tour rejected outright any possibility of SMBC accepting vicarious liability for McNally’s own Twitter output, which is a very clear indication that the Council were not going to accept any legal liability for her personal comments in any circumstances.]

But Proops (seemingly) goes further …

Surjit Tour did not advise McNally to seek independent legal advice at any stage. Neither did he inform the political leader of the Council that this was the obvious course of action for McNally to take so that the (then) leader was seemingly unaware that was the correct and appropriate thing for McNally to do.

Indeed Tour went even further in persuading the political leader to authorise indemnity, again praying in aid the 2018 Proop's Opinion. He bizarrely told the leader that the Council itself could be sued by McNally if they did not indemnify her. These is the way he put it:

“Alternative Options considered and discounted

The Council could choose not to support the Claimant. This would expose the Council to risks of an employment dispute given the duty of care that the Council owes to her [McNally] as an employee, as set out above.”

Additional Comment

It is noteworthy that the High Court case was brought as a personal action by McNally with Tour and no less than three of his publicly-funded colleagues acting as her Solicitors, with the taxpayer picking up the tab. SMBC has claimed legal professional privilege in respect of Ms Proop’s 2018 Opinion but we must now question whether she was advising generally in respect of obvious “attacks” on an employee in the course of his/her employment? Did she really advise that taxpayers' money could be used to support private litigation relating to a personal social media account? Tour says that she did advise this although, as above, SMBC was not prepared to accept vicarious liability for McNally’s personal output and refuses to disclose even a redacted version of the 2018 Opinion.

If Ms Proop’s was extending indemnity principles to cover an employee’s personal Twitter output it would clearly be helpful if she makes public the case authorities upon which she relies (or that Tour does so on behalf of SMBC). As things stand, there is no obvious legal basis for extending publicly-funding indemnities in this manner.

rottencouncils@gmail.com

Local Authority Legal Case Management Systems

In a recent case at the Information Rights Tribunal (which settled pre-hearing) some curious facts came out concerning the procedures at Sandwell Metropolitan Borough Council (SMBC) legal department, headed by highly controversial Monitoring Officer, Surjit Tour*.

Tour was re-employed by SMBC and specifically tasked, inter alia, with “doing a number” on local blogger, Julian Saunders. To this end Tour has tried various tactics and also set up a £300,000 fund of taxpayers money to crush Saunders financially and to destroy the blog (as reported in The Times and mentioned in Parliament). He also authorised the unlawful funding of a claim by an employee, Lisa McNally, against Saunders in respect of her personal Twitter account which ended up costing the taxpayer £100,000.

Saunders, a former Solicitor, has presented a number of matters to the Information Rights Tribunal which has usually resulted in a deluge of documents being provided to him which he had previously been told didn’t exist or were somehow “unavailable”. 

At a small number of hearings involving Saunders  - including at the striking out of McNally’s claim at the High Court in London - he noted a curious thing. Tour was sending not one but two senior in-house Solicitors to sit behind Counsel. Given the low-level nature of the litigation it was unclear to Saunders why the taxpayer was (a) paying for two senior in-house lawyers to attend, and (b) whether both lawyers were claiming travel and subsistence to attend hearings, notably the one in London. He duly made a Freedom of Information (FOI) request. 

A defence of vexatiousness was made by Tour but died on the vine. But SMBC maintained a defence under s.12 FOIA (Cost of compliance exceeding the appropriate limit). As usual, the Information Commissioner upheld Sandwell’s s.12 interpretation.

Mr Saunders had left the law in 2004 but was quite familiar with computerised case management systems even then. He imagined that the technology would have come on by leaps and bounds, but this is not the case with the Sandwell system.

SMBC confirmed that they had used the CIVICA Legal system for part of the period covered by the FOI request, but had then changed to the iCasework system.They informed the Tribunal that neither of these systems maintained records accessible to managers or other third parties relating to the time spent travelling to, and attending at, hearings. Thus there was no way of correlating whether more than one person was out of the office (or away from home if working from there) and attended hearings with another. Such information is recorded on individual files and so, for FOIA purposes, it would be necessary to physically inspect every single litigation file (over the FOI period of two years)  to try and puzzle these things out. Yet even without the data SMBC were somehow able to confirm that double attendance was rare.

Mr Saunders was astonished by this, remembering ghastly weekly meetings when senior partners came armed with computerised sheets and analysed fee earners' time and cost performances. That was in 2004. He responded to the SMBC submissions that it was admitted (at least in respect of attendances) that the records were “held” - within the FOI meaning of that word. Of course, it is hard to see how they could not have been noting that SMBC keeps internal time recording details for each fee earner at “the internal charging rate”, and this also forms the basis for claiming inter parte costs should that become applicable. (Bizarrely, the Civica and iCasework systems operated by Sandwell are also said to be incapable of recording travel and subsistence costs on any records available to management and these are “only contained on individual files”.)

SMBC said it was pivotal that there was no need to record if more than one taxpayer-funded solicitor attends a hearing, and there is no reason to do this. Mr Saunders countered that management needed to know (a) where lawyers actually are, and (b) why taxpayers’ money was being unnecessarily wasted by double attendances.

Neither CIVICA nor iCasework can be searched (say SMBC) to show whether hearings actually took place on individual cases (whereas back in 2004 Mr Saunders specifically remembers time recording “hearings”). As above, neither can travel and/or subsistence be “searched” across the system say Sandwell.

Mr Saunders asked why fee earners could not simply be asked whether they recall attending any hearings in the previous two years in the company of a colleague particularly when the number of such occasions was somehow known to be very small. SMBC thought this a wholly unreasonable request saying it was unfair to ask fee earners to recollect such incidents and the results might be “inaccurate”. Further a fee earner may recall that s/he was involved in a double attendance but not whether s/he time recorded it on the file! Despite this they did physically “interrogate” one of the files specifically mentioned in the FOI request (the McNally fiasco) even though this had already been the subject of a separate FOi request which the Council had answered.

Incredibly SMBC initially stated that they had no record on file of two Solicitors attending the McNally hearing (in London) although when they investigated the file they found an email showing that another solicitor had emailed to say she was going to attend (and, according to the other FOI, there were substantial rail fares incurred). The email would, of course, constitute a record within the ambit of the original FOI request. In another bizarre twist SMBC told the Tribunal that the second fee earner had voluntarily gone to London on "a non-working day" so that - apart from the train fare - the taxpayer suffered no loss! 

Incidentally SMBC has form for this sort of nonsense. Maria Price - a solicitor formerly employed by SMBC and now at Devon Council - "represented" the Council political Leader at a police interview in respect of a purely personal matter. Sandwell doctored her records - seemingly with her knowledge - to show that she was on holiday that day and claimed that she had been present at the police interview as a gesture of goodwill to the political Leader.

Despite the obfuscation SMBC finally admitted that (1)  there had been double attendances only on very rare occasions; (2) at least two of those occasions were hearings involving Mr Saunders: (3) Other than any records on individual files there was no management of central billing records showing double attendances and (4) SMBC did pay for the train fare for a second solicitor to attend the McNally hearing but she went in her own time and there was no “cost” to the taxpayer for her attendance. Curiously Sandwell belatedly admitted in a consent order that this double attendance was “authorised” by management although seemingly without any record being kept that would be disclosable under the FOI.

Comment

Although local authorities claim to model their operations on commercial firms it is clear that one, at least, is an absolute shambles in respect of time management. Tour has no idea where his senior solicitors are nor that they are sometimes wasting taxpayers’ funds for no reason. Tour also wasted taxpayers money on paying for a second solicitor to travel to London when she was not actually working.

It is an amazing coincidence that the only known examples of doubling-up occurred in incidents involving Mr Saunders during a period when Tour and his colleagues have been pursuing a vendetta against him.

Clearly the case management systems utilised by Sandwell (at least) are not fit for purpose as a management tool. It seems bizarre that modern systems cannot record time spent in travel to, and attendance at, hearings. 

Now that people are increasingly working from home it is maybe not so important for fire safety and/or management purposes to know where staff actually are. Most firms have logging in and out records for their offices but it does seem odd that Council management would have no record if a solicitor was attending a hearing - either from the office or from home.

On a brighter point - at least if you are a SMBC Solicitor - “Big Brother” is not watching you!

* Further details of Tour's approach to the position of Monitoring Officer can be found at "Monitoring the Monitoring Officer - A Case Study" at:

https://crowmultimedia.blogspot.com/2021/12/monitoring-monitoring-officer-case-study.html

rottencouncils@gmail.com

Michael Gove: Commissioners need not keep records

When the Secretary of State for Levelling Up, Housing and Communities appoints commissioners pursuant to a statutory intervention, they are "trusted" to decide what, if any, records they keep.

Background

The current Secretary of State, Michael Gove, ordered an intervention at Sandwell Metropolitan Borough Council (SMBC). He appointed Kim Bromley-Derry* (KBD) as the lead Commissioner, who was already in situ as the Council's Interim Chief Executive (ICE). As ICE, KBD and others rigged the appointment of Imogen Walker, a crony of Sir Keir Starmer, to a post he and the others newly created, "Interim Head of the Leader's Office".

KBD purported to use the authority delegated to him by the Council to create the new position without going through the usual channels. In a response to a Freedom of Information Request, SMBC confirm that he made no record whatsoever of the alleged use of his delegated authority, and also ensured that no other records were made (or, at least, kept) by the Council relating to either the creation of the post or the subsequent selection of Ms Walker to it.

The complaint and reply

A complaint was forwarded to the Secretary of State asking why he came to appoint KBD giving this egregious failure to maintain any, let alone any adequate, records (and parts of the scandal were already in the public domain). A spokesperson for Michael Gove responded simply that KBD has "extensive experience in local government" which, seemingly, absolves him from any misconduct. Mr Gove could not consider matters which occurred whilst KBD was ICE as this was a matter for the Council alone. But the spokesperson further stated that Gove "trusted" KBD to carry out his role as a Commissioner and, in that regard, it was entirely up to him to "keep records as he considers appropriate". Seemingly, that includes keeping no records at all.

Comment

The Freedom of Information Act 2000 (FOIA) is being undermined in many ways. When the governance of local authorities is so ramshackle (at best) that the Secretary of State can be cavalier in respect of the requirement to maintain any or any proper records this is most concerning - particularly where, as here, an intervention was necessary in a council riven with corruption. This shoulder-shrugging approach to the legal requirement to maintain proper records in alarming and wholly inappropriate - not only thwarting the FOIA but throwing local authorities open to legal challenges.

This comes on top of recent concerns relating to the use by councillors and officers of messenger apps to keep deliberations "off the record" and so also undisclosable via the FOIA. (A course of action favoured, incidentally, in Sandwell Council to facilitate the corruption there.)

* The Secretary of State also kindly permitted KBD to continue as a Director of McLaren Construction during the intervention period.

rottencouncils@gmail.com

Anya Proops KC extends scope of local authority legal indemnities

Following a case before the Information Rights Tribunal it is now known that Anya Proops KC (then QC) advised a Local Authority (LA) that it could use public funds to fund litigation by an officer (i.e. employee) in respect of issues relating to the use of her personal (non-work) Twitter account.

Legislation

The Local Authorities (Indemnities for Members and Officers) Order 2004 permits a LA to pay for a member/officer to defend a defamation claim, but not to bring one, and also as follows:

Cases in which an indemnity may be provided:

5.  Subject to article 6 below, an indemnity may be provided in relation to any action of, or failure to act by, the member or officer in question, which—

(a) is authorised by the authority; or

(b) forms part of, or arises from, any powers conferred, or duties placed, upon that member or officer, as a consequence of any function being exercised by that member or officer (whether or not when exercising that function he does so in his capacity as a member or officer of the authority)—

 (i) at the request of, or with the approval of the authority, or

(ii) for the purposes of the authority.

Background

In 2017 the (then) Leader of Sandwell Council (Cllr Steve Eling - subsequently disgraced) was fighting for his political life following serious disclosures about him by a blogger. He  re-employed a Solicitor, Surjit Tour, this time as Head of Legal and statutory Monitoring Officer. Tour was specifically tasked with destroying the blogger. Following threats of legal action by Tour he instructed external solicitors and “specialist Counsel” to pursue a claim of harassment against him (no defamation action could be considered as the blog posts were factually true). He secured the Labour Council’s agreement to set up a £300,000 fund for this purpose.

The Council appointed not one but two firms of external solicitors (for reasons unknown) and instructed Ms Anya Proops and Junior Counsel. Proops QC (as was) supplied an Opinion (the 2018 Opinion). No litigation was forthcoming following this. Two Freedom of Information Act (FOIA) requests determined that Tour spent £49,993.50 + Vat on these external lawyers as part of this vendetta. Despite using two firms of external Solicitors, Tour’s internal legal team also spent an incredible 279 hours and 54 minutes on this crusade.

Facts

In 2019 Sandwell employed Lisa McNally as Director of Public Health - a politically-restricted post (see below) with a salary of between £105,000 and £109,000 per annum. McNally was a prolific user of a personal Twitter account and, during the Covid pandemic, her tweets brought her to the attention of the blogger, who wrote critical posts concerning her social media output. In early 2021 she conspired with Tour and the (now-disgraced) Sandwell Chief Executive, David Stevens, to bring an harassment action against the blogger. She brought the action in her own name, but Sandwell’s own internal Solicitors placed themselves on the court record as acting for her, and also funded her. Tour did not advise McNally, or the Council (effectively his “client”), that she should use her own resources if she wished to start legal action in respect of her personal use of Twitter (again, for reasons unknown).

The blogger was aware that the (then) Acting Leader of the Council, Cllr Maria Crompton, authorised the use of taxpayers’ funds for this adventure. Both she and the Council refused to provide any reason for this. Tour, and the political leadership, then blocked a FOIA request into the advice given to the Acting Leader on the ground of “legal professional privilege”, and the ICO supported this contention. The blogger appealed to the Information Rights Tribunal.

In a consent order concluding the Tribunal issue, Sandwell admitted that  Surjit Tour himself had informed the Acting Leader that the 2018 Proops Opinion permitted the Council to fund - and indemnify - McNally despite the fact that the issues arose from her use/misuse of her personal Twitter account. As above, he did not advise Crompton that McNally should use her own funds to pursue her action (and the Cllr seemingly did not raise this).

Sequalae

Proops QC (as was) of 11KBW was not instructed in McNally’s action. Instead Tour made the disastrous decision to instruct Aileen McColgan QC (now KC - also of 11KBW) instead. McNally, via McColgan, applied for an emergency injunction with penal notice against the blogger to be followed with a permanent injunction. McColgan added a bizarre claim for breach of McNally’s data protection rights claiming that it was impermissible for the blogger to comment on issues which McNally herself placed on her personal Twitter site. Between the end of the protocol period and the issue of proceedings - and despite the fact that her case was being publicly-funded - McNally added a claim for £10,000 personal damages.

The blogger has disclosed multiple examples of corruption and wrongdoing at Sandwell Council (currently in Government “special measures”) the majority of which involved male councillors and officers, but McColgan chose, for whatever reason, to plead the case as a “misogynistic” attack on a female employee.

The blogger instructed Mark Lewis of Patron Law and Richard Munden of 5RB. Almost immediately McColgan dropped the emergency injunction application but continued to seek a permanent injunction, damages for the “data breach” and personal damages for McNally. Lewis immediately applied to strike out the action. Shortly before the hearing Ms McColgan also withdrew the data breach claim. Following an oral High Court hearing the case was duly struck out. On the basis of the 2018 Proops Opinion, and Tour’s statement that her advice permitted the Council to use taxpayers’ funds for this third party litigation, Tour caused a further substantial loss of public funds - £49,747.20 to the blogger and £53,446.57 ex. Vat in respect of the Council’s own costs supporting McNally’s personal litigation (and this latter sum is almost certainly an understated figure).

Comment

The case law is very sparse on the use of the statutory indemnity but there are published Opinions online from James Goudie (QC) and Tim Kerr (QC) relating to the Welsh iteration of the Order. (Both Leading Counsel at the time were members of the same chambers - 11KBW - as Proops and McColgan.)

Clearly when Ms Proops was instructed in 2018, McNally had not even been employed by Sandwell. It is hard to see how Proops was able to conclude that the statutory Indemnity extended to officers when acting in their personal capacity -something s.5 of the Order (set out above) does not appear to permit. Nevertheless, Tour has informed the Information Rights Tribunal that was her Opinion (at least in 2018).

It is noteworthy that Sandwell Council refused to accept vicarious liability in respect of the contents of McNally’s personal Twitter account.

Clearly all users of social media need to exercise caution when engaging with the personal social media accounts of members and employees lest they face oppressive, taxpayer-funded, litigation. This begs the question of what would happen if it is not clear that a social media user is even employed by a local authority when discussing Council issues? As far as members are concerned there are also numerous incidents of abusive councillors avoiding formal standards complaints on the basis that their social media use is purely “personal”.

We are inviting the Secretary of State for Levelling Up to review the terms of the statutory indemnity since it is our view that the 2004 Order did not contemplate taxpayer-funded litigation by local authority employees in respect of their personal social media output - yet that view is what Tour, and other Sandwell Solicitors, told the Tribunal was precisely what Ms Proops contradicted in her Opinion.

And finally …

This case threw up another aspect of legal interest. As above, McNally agreed to be employed as a politically-restricted officer, but used her personal Twitter account to air political issues - an issue the blogger commented upon. Tour actively backed her right to do this, and McNally herself told the High Court:

“There can be no doubt that the role of DPH at this time [the Covid pandemic] does draw one into issues that others may label as political. However, it is not political for a DPH to highlight and respond to problems in the national response to a pandemic (indeed, it could be perceived as an inappropriately political act to remain silent when we do identify problems”.

Whether she aired her frequent criticism of the Government via official channels is not known, but she certainly considered it legitimate to do so via her personal Twitter account.

We are also raising this issue with the Secretary of State since, once again, the current legislation is seemingly not fit for purpose, and some local authority employees apparently consider that they can simply  ignore the relevant provisions.

rottencouncils@gmail.com

ICO allows Councils to "legally" subvert SARs

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