There can be few Borough Councils that have found themselves criticised so roundly and persistently, over the past few years, as Scarborough’s Town Hall incumbents.
Local, regional and national press stories abound over a string of democracy failings, and a BBC Inside Out programme also took them to task over trying to close down a local internet news website.
A well-named ‘Rotten Borough’, as Private Eye regularly describes them.
For journalists, the job of squeezing out information from Scarborough Borough Council (SBC) is one that would test the patience of Job. Press enquiries go largely unheeded, and freedom of information requests are non-compliant, more often than not. Disclosure, if given, can be months late, or provided in such a form as to be worthless.
The latest battle concerns a Council whistle blower scandal that has been doing the rounds for over four years. Despite desperate attempts by senior council officials, aided by a large sum of public money, to keep the lid on corruption allegations, an employment tribunal claim, heard in Hull in July last year, blew it clean off.
Former Council employee, Ben Marriott, succeeded, to a large extent, in a constructive dismissal claim against SBC and received a pay out of £95,000, plus costs. The (now retired) tribunal judge, Humphrey Forrest, described the council ‘investigation’ into Mr Marriott’s whistle blowing allegations as a ‘whitewash’.
Eventually, after much huffing and puffing, and a great deal of pressure applied by the local media, SBC agreed to an external investigation into corruption allegations made by Mr Marriott. To the surprise of most, the police did not investigate what were, taken at their face, serious allegations.
Instead, the Council instructed Mazars, a private company specialising in audit, accountancy, tax and consulting services, to undertake a ‘review’. The company has an existing commercial relationship with the Council as their financial auditors.
Mazars are better known as sponsors of Yorkshire’s county cricket team: But, most definitely, not as criminal investigators.
Unusually, the scope of the ‘review’ was not made public and it was clear, from a leaked email sent by SBC’s head of legal services to Councillors in December, 2016, that the Town Hall was still in almost complete denial over the court’s findings.
A false claim was also made in the same email concerning a confidentiality agreement (NDA) allegedly sought by Mr Marriott: No such clause was ever considered by him. As a whistle blower it would have been unenforceable, in any event.
A local newspaper reported, after the remedy hearing in December, 2016, that the total cost of the Marriott claim, including legal fees and ancillary expenses, would be in the order of £250,000.
Mr Marriott also told the media that he was still waiting for an apology from SBC: “Not once has anyone said sorry to me. All I did was to raise some potentially serious issues with them and I was forced to leave my job and fight through the courts.”
The Mazars review was delivered to the Council in June, 2017 and was quickly followed, in the same month, by a freedom of information (FOI) request seeking disclosure of the report; its terms of reference; the budgeted cost and the actual cost [1].
The review was months overdue: The Council Leader, Derek Bastiman, was quoted in the local press in December, 2016 as saying: ‘The external investigation we have instigated with our external auditors, Mazars, the investigation’s findings are expected shortly’.
As expected, the FOI request has developed into the usual blood out of a stone exercise. The finalisation of the request, on the very last day stipulated by law, produced no information at all. The Council relied on a section 22 exemption under the Freedom of Information Act (the Act). The officer dealing with the request did not put his (or her) name to it.
In layman’s terms, a section 22 exemption means the public authority (SBC) does not have to disclose the requested information, because they intend to publish it at a later date. The main problem with the Council’s response is that they did not say how, or when, that intention was made.
A challenge against the SBC decision (called an internal review request under the Act) was submitted shortly afterwards. It was an eleven point challenge, carefully set out and annotated with the relevant case law and recommended reading.
The key points of complaint were:
– By reference to local/regional media, social media and, more crucially,
council minutes, there appeared to be no settled intention to publish any,
or all, of the requested information. To rely on a s22 exemption, a
refusal to disclose is required to be accompanied by evidence.
– No timeframe is given for publication, other than ‘in the near future’.
Given the Council’s routine (and defensive) approach to disclosure that
could, readily, be interpreted months, or years. Previous
experiences with the Council concerning information requests, and press
enquiries, are relevant in this regard (answered very late or not at all).
– It is accepted that a definite date is not required to be given (or
indeed possible to give). However, the Information Commissioner takes the view that timing is a key factor when deciding whether withholding the information is “reasonable in all the circumstances”.
It was also contended that the refusal to disclose the information engaged the requester’s Article 10 convention rights:
The Grand Chamber of the European Court of Human Rights in Magyar
Helsinki Bizottság v Hungary [18030/11] stipulated four ‘threshold
criteria’ to better define the circumstances under which a denial of
access to information constitutes an interference (to a requester’s
Article 10 rights) in a given case:
The purpose of the information requested: contribution to a public
debate.
The nature of the information sought: public interest nature
The role of the applicant: social watchdogs and the like.
Whether the information is ready and available to the public
authorities.
In the Mazars request there has already been considerable public debate:
(a) the Council has conceded the public interest argument (b) the
requester is an NUJ accredited journalist (c) it is known (and conceded
by the Council) that all of the requested information is ready and
available.
The Council’s refusal to disclose the information, therefore, clearly
engages the requester’s Article 10 rights, by reference to Magyar.
The Council were urged to deal with the internal review request ‘promptly’.
In the event, it appears that the Council would not have dealt with the internal review at all, but for a threat of judicial review proceedings made on 21st August, 2017. After the deadline for response to the internal review request had passed.
Briefly, the Council were told: ‘The refusal to disclose the requested information arguably constitutes a breach of Article 10 convention rights. Further, the refusal to undertake an internal review in accordance with section 45 of the Act and the Information Commissioner’s Guidance would tend to aggravate such a breach’.
This had the desired effect as a finalisation to the review request was received the following day. Again, it was anonymised.
The main thrust of the Council’s response was that they continued to rely on the section 22 exemption in order not to disclose three of the four parts of the information request.
They did, however, disclose that the budgeted cost of the Mazars review was £14,000. Which, at their rate of charging, buys you very little. The oily smell of ‘whitewash’ has again reached the nostrils.
Six of the eleven points of complaint were not addressed at all, including the breach of convention rights contention, but there were some interesting revelations amongst the narrative provided by the Council:
– The scope of the review is set out as part of the report itself.
– The intention to publish the report derives from the decision of a cross party panel of elected Members, who met privately to consider the report and next steps. They unanimously decided that the report should be disclosed.
– The Council say that there is already an amount of incomplete and incorrect information circulating in the public domain about this matter, releasing the scope in isolation from the remainder of the report would do nothing to assist public understanding, and would result in questions being raised that could be addressed by the content of the complete report.
– The actual cost of the investigation is not known at this time because the Council has not received a final bill.
– As stated in the Council’s initial response, there is clearly a public interest in this information being disclosed into the public domain. There is also a public interest in the information being published in a manner that aids understanding.
– The reliance on section 22 of the FOIA is nothing to do with political inconvenience as stated in the request for review. In fact quite the contrary is true, in that it would be more politically convenient for the information to be disclosed as soon as possible.
– There is a strong public interest in the Council operating in a lawful manner – to do otherwise would put the Council at risk of legal challenge. One relevant aspect of the requirement to operate lawfully is to ensure that the Council complies with its duty of care towards staff, and the common law duty of mutual trust and confidence. In this respect the Council must ensure that it meets such duties towards those staff who have been involved in and may be affected by the matter prior to releasing the report into the public domain.
– Another aspect of acting lawfully is that the Council has entered into a contractual agreement with the external auditor for the provision of an independent review. As part of that contractual agreement, the external auditor has stipulated that their written permission must be obtained prior to the report being disclosed more widely. To publish the report without obtaining written permission would likely be a breach of contract and put the Council and the public purse at risk, and it is entirely
reasonable from a public interest perspective to allow the Council opportunity to comply with this requirement.
As ever with SBC, when information is eventually prised from their grasp there are more questions than answers:
From the vague terminology it appeared that no tightly drawn terms of reference were set for the review. ‘Scope’ suggests a rather more loose narrative.
The public now know that a small group of councillors has met, on an unspecified date and without announcement, before or after, and decided to publish the Mazars report.
Without any preamble, it was published on 30th August, 2017 on the Council’s website [2]. Members received an email after the event. The Council leader made this accompanying announcement:
“I have instructed officers to publish a copy of the Mazars report with the unanimous support of the cross party panel of councillors to whom the report was delivered”,
“Unfortunately, Mazars was unwilling to grant the council permission to disclose the report publicly, however I have taken the decision that there is a significant overriding public interest in doing so. Indeed it has always been my intention that this report would be publicly available.”
The working hypothesis is that the furore over the freedom of information request, and the accompanying threat of legal action, forced the Council’s hand.
As suspected, there were no terms of reference, and, incredibly, Mazars were allowed to determine their own scope for the review.
The report is unattributed; no Mazars employee has put his, or her, name to it. The review simply adds gloss to the original whitewash applied by the Council to Mr Marriott’s allegations.
The report notes that a meeting between senior Council officials and senior North Yorkshire Police (NYP) officers took place in November, 2016. Based on information provided to them, NYP decided not to investigate the allegations.
The same police force that sent five officers, within minutes, to the Town Hall to prevent a section of the electorate from expressing their views from the public gallery at a recent Council ‘no confidence’ meeting which had devolved into a democracy shambles [3].
The Council leader boldly claims: “The report followed an independent and comprehensive investigation and I fully accept the outcome of this process”.
It is unclear as to how Cllr Bastiman has arrived at the conclusion that it was ‘comprehensive’. To say it was ‘independent’ is also a misnomer.
Mr Marriott is, understandably, upset at the outcome: “Like the judge said at the Tribunal, a complete ‘white wash’. It really is embarrassing to read, the total lack of professional standards and lack of respect for the whole country and its people”.
He added: “In court, the judge stated that Scarborough Borough Council had not done any investigations into my allegations for fear of upsetting people”.
More than three months after delivery of the report, the Council say Mazars haven’t sent in a bill for the work. Many people would take the view that, if an invoice does eventually materialise, it should be returned unpaid.
The Mazars report does not feature on the Agenda for the full Council meeting scheduled for Monday 4th September, 2017 at 2pm. A briefing of all Members on the Mazars report was scheduled for 11am on that day. It is unclear whether that will now proceed.
The complaint to the Information Commissioner proceeds – and appropriate action will be taken against the Council concerning any finding of Article 10 breach.
A second freedom of information request was made to the Council on 31st August, 2017 seeking disclosure of materials that will give context to the Mazars report and decisions taken within and around it [4].
Scarborough Borough Council’s press office has declined to comment.
Page last updated Friday 1st September, 2017 at 1930hrs
[1] Neil Wilby: What Do They Know FOIA request to Scarborough Borough Council 23rd June, 2017
[2] Mazars: Review of Scarborough Borough Council’s investigation of whistleblowing allegations received in October 2014
[3] Scarborough News: ‘Police called to no confidence meeting after public gallery clapped’ 26th June, 2017
[4] Neil Wilby: What Do They Know FOIA request to Scarborough Borough Council 31st August, 2017
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