For some time I have been campaigning for the truth to be told about the council’s dealings with former PCC youth worker and convicted paedophile Mik Smith and more particularly the treatment of Sue Thomas who blew the whistle on Smith’s activities back in 2005 and was unceremoniously sacked for her pains.
To his credit chief executive Ian Westley commissioned an independent social work expert to look into the matter and just before Christmas I was provided with a copy of her report.
Unfortunately it is plastered with “Confidential” and references to “sensitive personal information” under the Data Protection Act.
I’m not sure that there is anything in this report that warrants this level of secrecy, but, as an appearance before the standards committee is not on my wish-list, I will respect this confidentiality until such time as I can either convince the powers that be that this report belongs in the public domain, or I decide to publish it and take my chances that I can persuade the Ombudsman that I was acting in the public interest.
However, what I can safely say is that this report confirms my previous musings on this subject and shows that the failures around the provision of a reference for Smith to become a foster parent were even more serious than I had supposed.
A feature of the scathing 2011 reports by Estyn and CSSIW into PCC’s child protection procedures contained serious criticisms of the failure of officers to share information with elected members.
So I thought it would be helpful to analyse the various ruses the council employs to keep things under wraps.
Sub Judice.
Literally translated, this means under judgement and is actually derived from the Contempt of Court Act 1981.
The Act criminalises the publication of material which creates a substantial risk that the course of justice in the relevant proceedings would be seriously impeded or prejudiced.
This provision only applies when proceedings are “active” i.e. in criminal cases when there has been an arrest and in civil cases when a date has been set for the trial.
Clearly, the fact that some matter has been reported to the police, or someone has sent a threatening solicitor’s letter, are not sufficient to make proceedings “active”, though such events are often used to justify keeping information out of the public domain.
Legal privilege.
This refers to the duty of confidentiality a solicitor owes to his client.
So, without the client’s consent, the solicitor couldn’t disclose solicitor/client correspondence or advice
However, there is no reciprocal duty on the client who is free to reveal the contents of such correspondence to whoever he pleases.
This issue arose during the debate on the severance payment to the former county council chief executive Bryn Parry-Jones.
When some opposition members requested sight of the advice provided by the council’s solicitors, Eversheds, legal privilege was wheeled out to justify withholding the documents.
While there may be tactical reasons for concealing your legal advice from someone who you might end up facing in court, there is no legal bar to doing so.
Indeed, I would argue that a member’s Common Law right to have information that they “need to know” when discussing a matter before them, means that the law works in precisely the opposite direction.
Unfortunately, if officers refuse to disclose the information, the only recourse is to the courts and, as most people find that too time consuming and expensive, they get away with it.
Commercial confidentiality.
Another old favourite when officers seek to keep members in the dark.
However, the Information Commissioner has ruled that just stamping a document with “confidential” doesn’t necessarily make it so.
ICO guidance can be found here.
In any case, commercially confidential information is defined as “exempt information” under the Local Government act 1972 S100.
While this allows the council to exclude the public during any proceedings where this exempt information might be disclosed, it does not mean that the information can be withheld from the members of the committee who are discussing the matter.
Furthermore, as I established during a long and acrimonious dispute with the former Monitoring Officer, when I was attempting to access documents relating to the Pembroke Dock grants business, all members have the right to access commercially sensitive information regardless of whether they are members of the committee dealing with the matter.
Data Protection Act.
This is a relative newcomer on the scene.
Section 2 of the Act provides:
“In this Act “sensitive personal data” means personal data consisting of information as to—
(a)the racial or ethnic origin of the data subject,
(b)his political opinions,
(c)his religious beliefs or other beliefs of a similar nature,
(d)whether he is a member of a trade union (within the meaning of the M1 Trade Union and Labour Relations (Consolidation) Act 1992),
(e)his physical or mental health or condition,
(f)his sexual life,
(g)the commission or alleged commission by him of any offence, or
(h)any proceedings for any offence committed or alleged to have been committed by him, the disposal of such proceedings or the sentence of any court in such proceedings.
It is not clear to me which parts of the report into Smith fall into these categories.
And, even if information in the report does qualify as sensitive personal information, the guidelines on the Information Commissioners website provide:
“In addition to the above conditions – which are all set out in the Data Protection Act itself – regulations set out several other conditions for processing sensitive personal data. Their effect is to permit the processing of sensitive personal data for a range of other purposes – typically those that are substantially in the public interest, and which must necessarily be carried out without the explicit consent of the individual. Examples of such purposes include preventing or detecting crime and protecting the public against malpractice or maladministration (my emphasis throughout).”
So the question arises whether it is in the public interest for the whole truth to be revealed about the malpractice and maladministration surrounding Smith’s case.
The answer seems pretty clear to me.