Economy, Communities and Corporate Directorate

Director: Geoff Hughes

Mr Gary Bills-Geddes Your Ref: 002702
Our Ref: FOI IAT 14185

Email: gary.bills- Please Claire Jacobs

ask for:
geddes@midlands.newsquest.co.uk
Direct Line
/ 01432 260 535
Extension:
Fax:
E-mail: accesstoinformation@herefordshire.gov.uk

17 July 2017

Dear Sir,

FREEDOM OF INFORMATION ACT REQUEST FOI IAT 14185

Further to previous correspondence, your request for information has now been considered
and the councils response is set out below:

We invoke the Freedom of Information Act, for the reason of public interest,
concerning the recent complaints procedures into allegations that Cllr Liz Harvey and
Cllr Andrew Harrison bullied and intimidated Ledbury Town Council staff.

The background to the request:

Cllrs Harvey and Harrison have provided documents which show, unequivocally, that
the Monitoring Officer has found them not to be in breach of the Code of Conduct, and
therefore the Monitoring Officer has found them not guilty of bullying and intimidating
Town Council staff. However, Cllrs Harvey and Harrison were found guilty by Ledbury
Town Council, under Employment Law, of bullying and intimidating town council staff.
The stand-off has been aired in public. There is no longer any confidentiality
surrounding this case, in our view

http://www.herefordtimes.com/news/ledbury/15352814.Council_sticks_to_its_guns__despite_
ruling_on_bullying/

Thus, there are two opinions in the public arena, and here lies the basis for our claim of
public interest, concerning this matter.

Q1 Were the investigations into the bullying accusations sufficiently comprehensive or

were they cursory?

A. The Freedom of Information Act covers requests, made to public authorities, for
recorded information, for example, letters, emails, documents, etc. Herefordshire

Working in partnership for the people of Herefordshire

Herefordshire Council, Plough Lane, PO Box 4, Hereford, HR4 0XH
Herefordshire Council Main Switchboard (01432) 260000, www.herefordshire.gov.uk
 Council does not hold any recorded information which details whether the
investigations were sufficiently comprehensive or whether they were cursory.

To answer this question therefore would require us to provide an opinion on the

investigations. However, the Freedom of Information Act does not cover requests
for opinions.

How long did the investigations take?

A. 1 year and 19 days

Were the town council staff concerned interviewed at all?

A. Information concerning how the investigation was conducted, including whether

anyone was interviewed and if so who, is contained within the external investigators
reports into the matter.

The reports that were produced were done so on the basis of legal instruction by
Herefordshire Council, in order to obtain legal advice on the complaints made.
These reports were requested as legal advice and are written as the provision of
such. The final report contains an appendix of information used for evidence in
providing legal advice. The solicitor used their skill and judgement to select this
evidence and disclosure would indicate the trend of the legal advice given and the
trends of litigation arguments. Disclosure of the reports would therefore reveal the
substance of the advice given to the council, advice which is still pertinent.

As such I consider this information to be material covered by legal professional

privilege and therefore exempt under Section 42 of the Freedom of Information Act
2000. This exemption is subject to the public interest test, and accordingly I have
weighed the reasons for and against disclosure in the public interest as follows:

Favouring disclosure of the information:

Issues surrounding Ledbury Town Council have attracted the attention of local
people and the local media. Members of the public need transparency regarding
this to know that such issues are properly handled to have faith in the local
democratic and governance processes, and to understand the decision which was
ultimately reached in this instance.

Favouring withholding the information:

A clients ability to speak freely and frankly with his or her legal adviser in order to
obtain appropriate legal advice is a fundamental requirement of the English legal
system. As such there is a strong principle inherent in legal professional privilege in
safeguarding openness in all communications between client and lawyer to ensure
access to full and frank legal advice, which in turn is fundamental to the
administration of justice.

If legal advice was routinely disclosed, caveats, qualifications and professional

expressions of opinion might not be given in advice which would prevent free and
frank correspondence between the council and its legal advisers. Legal advisers
 would be deterred from giving comprehensive advice and the quality of decision
making would be reduced, as it would not be fully informed and balanced.

Information contained within the report as legal advice has not been previously
disclosed to a wider audience and so is still considered confidential.

The legal advice is still pertinent and is currently being relied upon.

The outcome of the report was that there had been no breach of the code of
conduct, and therefore the public interest in unsubstantiated complaints is
diminished.

Taking the above into consideration, I have concluded that the public interest in
maintaining the exemption outweighs the public interest in disclosure. Please take
this letter as a refusal notice under S17 of the Act for this part of your request.

Q2 If the investigations were cut short, why were they cut short?

A. Two investigation reports were received (an interim report and a final report) and on
the basis of those findings, no further investigation was carried out.

Q3 We request sight of the evidence, or a selection of the evidence, used by the

Monitoring Officer in making the deliberations. In particular, we would like to see a
selection of emails, appertaining to these cases and submitted as evidence, between
Cllrs Harvey and Harrison and the town clerk, Karen Mitchell, and the then town clerk,
Maria Bradman.

A. Information submitted as evidence and considered when making the deliberations

is considered to be the personal data of third parties.

Complaints raised are the personal data of the complainants in that complaints
were initiated by their view and opinion of a matter and that they can be identified
as the complainant.

I note your comments that, as some information relating to this matter is already in
the public domain, there is no longer any confidentiality surrounding this case.
However, just because some information, such as the outcome of Herefordshire
Councils investigation, is in the public domain, it does not mean that the
substantive details behind the complaints are not confidential or that everyone
involved in the matter would wish for the information that they provided to be made
public.

Indeed, the complaints process is reliant on an element of confidentiality or else

individuals would not make complaints. The reasonable expectation of the third
parties is that correspondence that they have submitted in relation to this matter
would not be released.

The complaints have not been upheld and disclosure of the information would be
prejudicial to the complainants rights and legitimate interests as they would be
likely to suffer unjustified distress and upset by reopening the matter.
 We have therefore concluded the information is third party data, disclosure of which
would be a breach of the first principle of the Data Protection Act 1998 in that it
would not be fair processing, and therefore this information is exempt under Section
40(2) of the Freedom of Information Act 2000.

Furthermore, the information is also considered to be information provided in

confidence. Disclosure would constitute a breach of confidence, which could result
in court action. Information concerning complaints and therefore the personal data
of individuals is confidential in nature, and there is a clear expectation by the
sender and the recipient that the correspondence would not be disclosed.

Disclosure would be to the detriment to the process of the Monitoring Officer

dealing with complaints, which requires some correspondence to be sent that is
private.

As such we also consider this information to be exempt under Section 41 of the

Freedom of Information of Act 2000. Please take this letter as a refusal notice
under S17 of the Act for this part of your request.

Q4 Finally, we would like sight of the Monitoring Officers formal reports into the
investigations.

A. A Monitoring Officer report into the investigations is not held. An external

investigator was appointed in this case to carry out an investigation into the
complaints raised, and that investigator prepared two reports (an interim and final
report).

As with any investigation, some information was provided in confidence and there is
also third party data, as outlined in response to Question 3. As such that
information is considered to be exempt under Section 41 and Section 40(2) of
Freedom of Information Act 2000.

Considering the external investigators reports as a whole, they were produced on

the basis of legal instruction by Herefordshire Council, in order to obtain legal
advice on the complaints made. As explained in detail in response to Question 1,
we consider this information to be material covered by legal professional privilege
and therefore exempt under Section 42 of the Freedom of Information Act.

This exemption is subject to a public interest test, and accordingly I have weighed
up the reasons for and against disclosure in the public domain as follows:

Favouring disclosure of the information:

Issues surrounding Ledbury Town Council have attracted the attention of local
people and the local media. Members of the public need transparency regarding
this to know that such issues are properly handled to have faith in the local
democratic and governance processes, and to understand the decision which was
ultimately reached in this instance.

Favouring withholding the information:

 A clients ability to speak freely and frankly with his or her legal adviser in order to
obtain appropriate legal advice is a fundamental requirement of the English legal
system. As such there is a strong principle inherent in legal professional privilege in
safeguarding openness in all communications between client and lawyer to ensure
access to full and frank legal advice, which in turn is fundamental to the
administration of justice.

If legal advice was routinely disclosed, caveats, qualifications and professional

expressions of opinion might not be given in advice which would prevent free and
frank correspondence between the council and its legal advisers. Legal advisers
would be deterred from giving comprehensive advice and the quality of decision
making would be reduced, as it would not be fully informed and balanced.

Information contained within the reports as legal advice has not been previously
disclosed to a wider audience and so it is still considered confidential.

The legal advice is still pertinent and is currently being relied upon.

The outcome of the report was that there had been no breach of the code of
conduct, and therefore the public interest in unsubstantiated complaints is
diminished.

Taking the above into consideration, I have concluded that the public interest in
maintaining the exemption outweighs the public interest in disclosure in this case.

Please take this letter as a refusal notice under S17 of the Act for this part of your
request.

If you are dissatisfied with the handling of your request or you would like a review of the
response provided, further information regarding our review procedure is available in the
Internal Review Procedure for EIR and FOI requests which is published on Herefordshire
Councils website via the following link:

https://www.herefordshire.gov.uk/downloads/file/5520/internal_review_procedure_for_foi_and
_eir_requests

Further information is also available from the Information Commissioner at:

Information Commissioners Office

Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF

Telephone: 01625 545 745 www.ico.org.uk

Yours faithfully

CLAIRE JACOBS

INFORMATION ACCESS OFFICER