Information Commissioner v East Devon District Council – report on morning session

The report below has kindly been provided by Sandra Semple, an EDA member, who agreed to attend the whole First Tier Tribunal Meeting of Information Commissioner v. EDDC. This is her personal report, does not necessarily represent the views of other EDA members and is given as a layperson with no legal training. Comments are not necessarily in the order taken but provide an overview.

First of all, see the report of Claire Wright, who also attended the morning meeting (but not the afternoon meeting) which I will not duplicate.

EDDC had provided a further 129 pages of evidence yesterday.

http://www.claire-wright.org/index.php/post/revealed_at_secrecy_hearing_eddc_overview_and_scrutiny_committee_was_given

And see also report on Save Our Sidmouth website:
http://saveoursidmouth.com/2014/08/28/east-devon-district-council-defends-decision-not-to-comply-with-freedom-of-information-commissioner-ruling-at-magistrates-court/

and here:
http://futuresforumvgs.blogspot.co.uk/

The whole argument turned on whether Mr Steve Pratten was (a) an employee of Davis Langdon (DL), or whether he was (b) an independent consultant or whether he was (c) embedded (I did keep mis-hearing “in bed with”!) EDDC as a “virtual officer”. This is relevant because if (a) or (b) then much more information is available for publication under Environmental Impact Regulations 2004 than if he is (c). Therefore EDDC evidence sought to confirm (c). This proved somewhat difficult, as Claire Wright’s report on the proceedings relates.

It also turned on what was not included in what could be put in the public domain. Mr Pratten said that in his section of the MINUTES of working party meetings (already agreed as being allowed to remain private) around 60% of the content of the minutes consisted of “cuts and pastes” from his report, leaving only 40% of his report available for consideration.

On being questioned, Mr Pratten said that Davis Langdon were invisible and silent and although presumably receiving a substantial monthly fee for providing the services of Mr Pratten they had no input whatsoever into his job.   Mr Pratten said that he attended “4 or 5 meetings” at “his” (stet) office in Bristol (i.e. Davis Langdon) with a senior partner or partners but these were “informal” and at no time did any partner express any views whatsoever on Mr Pratten’s job with EDDC – he simply updated them and kept them in the loop but they said nothing. It therefore seemed that, at these meetings, Mr Pratten spoke but no-one answered. He has not been to his Bristol office this year.

Mr Pratten said that DL’s only practical input was to check a Quality Assurance document for typing errors, checked by a Mr Knapp in the Plymouth office. Richard Thurlow, on behalf of Jeremy Woodward, said he found this baffling: quality assurance is about more than ticking boxes. What would happen if there was a mistake? Who would be liable – DL or Mr Pratt or EDDC? I do not recall this being answered.

Mr Pratten was asked about public liability: who would be sued by the council if, hypothetically, this was necessary: DL or Mr Pratten. He replied that he did not know.

He was asked about his laptop – who provided it – DL but he also had an EDDC computer. He preferred the DL computer because it was quicker and he gave Mr Cohen his reports on a memory stick. His hard drive was backed up by DL’s computer system and therefore could theoretically be available to them.

He was questioned as to why the front and back pages of his reports were DL templates. He also confirmed that he used DL software and hardware. He said that was his own preference to use DL templates and that, although the front and back were DL templates, the content inside was his. He was asked if councillors would understand this but I do not recall his reply.

He was asked what email address he used and he said sometimes EDDC and sometimes DL, whichever was most convenient at the time. He said he was full-time at EDDC though this sometimes included working from home.

I also recall him, as does Claire Wright, being asked: If EDDC wanted a second opinion, would you mind if these reports were shown to your competitors and he replied that, as long as “our” budget information was redacted (not sure who “our” was), he would be happy for them to see the reports. He was asked what DL would think about this – he said he could not say.

The Information Commissioner’s barrister than spoke of an email from them which had “slipped out” of the documentation.

Mr Pratten was asked what would happen if information was given to the public: Land values of sites for consideration could escalate, costs would go up and values go down and there might be a reduced choice of sites.

EDDC’s barrister said that their entire bargaining position and the position for sale would be weakened if the information requested was released.

Mr Pratten said that “WE provided a tender” for the work.

EDDC’s barrister was asked who was Mr Pratten’s line manager, who was responsible for hiring, firing, training and review, who would terminate his employment if this became necessary – it was reported that Richard Cohen was considered line manager but that termination would be up to DL. He confirmed that he had received no training at EDDC, that he had signed a paper on secrecy and confidentiality and Mr Cohen said that he was bound by the Code for Officers, though Mr Pratten did not say that he had read it. Mr Pratten said that he had access to the full EDDC network on the computer except “the higher level” for the CEO level. He was an officer “in all but name”.

The Chairman attempted to make a distinction a number of times between someone who was employed on a particular project and someone who was a regular officer saying that an officer was someone who was involved with the wider business of the council whereas a consultant was involved with only one aspect of the council’s work and did not get involved in the wider business of the council. Mr Cohen said several times that he was finding it hard to grasp what the Chairman was getting at and he considered Mr Pratten the same as “any other officer”.

There was therefore some discussion about what Mr Pratten was involved in and what he was not It was confirmed that no staff reported to him and he did not have any budgetary responsibility – all budget requirements were signed off by Mr Cohen.

Mr Pratten gave his evidence (after barrister’s opening comments) from around 10.20 to 11.20 then it was the turn of Mr Cohen from around 11.20 to 13.00.

Mr Cohen said that he had taken much advice on relocation and it had convinced him he needed a dedicated professional and a named individual. He mentioned Michelmore’s Solicitors, the Met Office and others to whom he had turned for advice. Relocation was a complex matter and his expertise was reflected in his reports.

Mr Cohen said that it was essential that the meetings remained secret because it was “thinking time” for him and, if they were not secret, the meetings would have to rely on verbal reports only which was not satisfactory. He and his officers and the members of the Relocation Working Party needed “thinking space”.

Mr Cohen said that the council had decided to consider options for relocation in July 2011 and Mr Pratten had been employed in April 2012. Outline planning permission for Knowle had been discussed at a DMC meeting on 1 March 2013 and was refused. No formal discussion had taken place on sites and all were open for discussion at that time.

Mr Cohen talked at length about public consultation but it appeared to this layperson that there was confusion and conflation between the statutory consultation about Knowle planning application and the separate subject of Knowle relocation – the Knowle planning application consultation being confused with relocation. Mr Cohen mentioned with regard to consultation that there had been 42 press releases on the subject, 2 meetings (one outdoors in Sidmouth, one in a community centre) and a “stakeholders meeting” (but later confirmed that the stakeholder meeting had taken place after the Knowle planning application outcome). He mentioned extensive correspondence from members of the publice (“more than 2,000 responses, but unclear whether he was talking about the planning application or the subject of relocation).

At this point, Mr Woodward said that there had been “scant information” given to the public and there was a spontaneous outburst of approbation from many members of the public present.

Mr Cohen mentioned a problem about footpath access and said that he did not wish to give information to the “other side”.

Mr Cohen was asked about the relationship between Mr Pratten, himself and DL – could DL control or restrict information from or to Mr Pratten. Would there be things that DL said No to. If the employment was not working out who would replace Mr Pratten – EDDC or DL. DL but only an applicant agreed by EDDC (Mr Cohen) but this had not been needed. Summarised as: DL was available if needed but had not been needed.

Mr Cohen was asked if he had had any meetings with DL – only at the start of the process but not since. Did Mr Pratten have decision making ability – answer: the same as other officers. Did he get involved in wider council business – no. Did he abide by the Officers Code of Conduct. This was on a “Read and Agree” basis but this was not then explained in depth.

Did Mr Pratten’s emails get send from his EDDC or his DL address – both. Who is the yes/no decision maker regarding the Code of Conduct and Mr Pratten? Mr Cohen would seek guidance from the Legal Officer and/or the Monitoring Officer.

A discussion then ensued on what damage might be anticipated from disclosure: significant issues of commercial confidentiality, site sale value, outline planning application affected, options before decisions would all be affected if the reports were made public so they needed to be limited.

The Information Commissioner’s barrister said: if Reports 1-6 walk like a duck and quack like a duck (i.e. look like consultants reports with the DL front and back sheets) would members think they were from a consultant or documents from the council. EDDC’s barrister said that this question could not be asked: it was not for Mr Cohen to guess what members might think.

EDDC’s barrister said that Mr Cohen signed off all documents before they went to meetings and he was the final arbiter of what they contained and DL had no input. The key relationship was between him and Mr Pratten not him and DL.

Mr Cohen was asked again what public consultation had been undertaken and it was noted that, for the outline planning application, it had to be resubmitted three times because of erroneous content. Mr Cohen said that this was in only one document of the 29 reports submitted. He noted the 42 press releases and the stakeholders meeting after February 2013.

The function of the Kensington Taylor consultancy was questioned. They had been appointed before the project manager to work on the design of new accommodation. They were design and architecture consultants prior to the award of the work to DL (Mr Pratten). Did they meet with other officers? Only with Mr Cohen and possibly the Financial Director and maybe the Estates team.

Was this the first example of “embedding” a consultant in the council? Yes, Mr Cohen believed it was.

The female layperson asked about Report 2: there were 2 versions of it – which version did the Overview and Scrutiny Committee of July 2013 see when they asked for an updated report on the project? Mr Cohen confirmed that it was the shorter (second) report and they had been told that confidential information had been redacted from this report and those members on the Overview and Scrutiny Committee who had seen the full report were told to “consider their position” (this was not expanded on).

The layperson then asked if EDDC had an IT policy on import and export of documents from a secondary source – Mr Cohen confirmed that it was allowed.

The Information Commissioner’s barrister asked if there had been any contact between EDDC and DL on customer satisfaction about the contract – Mr Cohen said no. He was asked if he envisaged any such contact – he said maybe at some point and there might be a need to restructure arrangements.

Mr Cohen confirmed that, to date, there had been no site purchase and no construction.

He was asked if the relocation had been discussed at any public EDDC meetings. He said yes – at four of them to his recollection (not listed) but then went on to say that he had given more information in the private part (part B) of these meetings to members only but that he thought that some appendices to reports had been made public (but did not elaborate on what they were) but confirmed no extracts from the reports had ever been made public.

The morning ended with a technical question on what a phrase “partnerships with contractors” meant in one document. Mr Cohen said that it meant examples of DL working in partnership with others.

The session ended at 13.00 hours. The Chairman said that the meeting would go into closed session at 2 pm. Mr Thurlow would not be allowed at that meeting but could submit written questions to it. In fact, the closed session lasted until 5 pm.

 

 

13 thoughts on “Information Commissioner v East Devon District Council – report on morning session

  1. The exact status of Mr Pratten is clearly a central issue in this enquiry and ample evidence is produced above to challenge the EDDC version. I was not able to attend on Thursday but how much of this knowledge has been made available to to the Inspector? If it is evidence unearthed since, can it be submitted in writing to him now?

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    • Whilst it was clearly unsatisfactory for the hearing to have to be reconvened it appears that by giving EDDC more time to produce more evidence (we do not know what about) it has also given the ICO and Mr Wodroff time to both produce more evidence themselves and think up more questions to adk EDDC.

      If anyone has (more) questions that they think should be asked please feel free to ennumerate them here.

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  2. I have now followed some of the links in Damien Mills’ comment on Claire’s Blog, and have the following points to make:

    1. All of Mr Pratten’s documents submitted to the Cabinet meeting of 17 July 2013 (see http://www.eastdevon.gov.uk/cabinet_agenda_170713_-_public_version.pdf ) were on DL letterhead or had DL Logos. Some of them were submitted by Mr Pratten using his DL job title rather than an EDDC job-title. Some were signed by a director of DL. If they are DL letterhead, if they are submitted under the job title of a DL employee, and especially if a Director of DL signs a document, then “the man on the omnibus” would reasonably believe that the documents are from DL rather than written by an embedded pseudo council-officer, and it is incumbent on both Mr Cohen and Mr Pratten to have made it explicitly clear in writing at the time if this was not the case.

    The minutes of this meeting are available at http://www.eastdevon.gov.uk/cabinet_mins_170713.pdf and make no mention that these documents should be considered internal reports rather than by an external consultant.

    2. In general, I have reservations about councillors being presented with ANY edited document – after all shouldn’t they be in possession of all the facts when considering something – even if it has edited by the author of the original document who has put his name to it and who can ensure that it still presents the same balanced view (though shortened) as the original document.

    That said, I do understand that sometimes there are sections containing confidential material which needs to be redacted, and in this event I would like to see them blacked out rather than removed so that councillors are clear that information has been removed and can see the extent of the missing information even if they cannot see it.

    But for the O&S Committee on 26 July 2012 (see http://www.eastdevon.gov.uk/os_agenda_260712_combined-2.pdf ), not only do the same issues of whether these were DL or EDDC documents apply, but if I understand it correctly, we have an original document written by Mr Pratten on DL letterhead, subsequently changed by Mr Cohen and then submitted by him to the O&S Committee without any explicit statement or indication that it had been changed by EDDC and retaining the DL letterhead together with an explicit statement that it had been submitted by Mr Pratten. If this is the case, then at best it is grossly dishonest, but it also could be against the Code of Conduct for Council Officers or possibly even illegal or fraudulent.

    We need to understand the provenance of the report submitted to the O&S Committee meeting of 26 July 2012 and whether it had been edited by Mr Cohen or Mr Pringle – and whether Mr Pringle had approved the edited version prior to it being submitted to the committee.

    The minutes of the O&S meeting of 26 July 2012 can be found at http://www.eastdevon.gov.uk/osc_mins_260712.pdf, and there is absolutely no mention in the minutes that Mr. Pratten’s documents were written as a pseudo officer nor that they had been edited by Mr Cohen after Mr Pratten had submitted them. In fact there is no mention of this document at all – on a matter of such importance, I cannot believe that this document was not discussed by the committee, and I would have expected some mention to have been made in the minutes. But most importantly it should have been explicitly noted for the record that this was an edited version of the document, otherwise how would anyone know either at the time or after the event that this was the case.

    IF Richard Cohen did indeed edit the document, particularly if Mr Pratten had not re-approved it, and then submit it as shown with a statement that it had been submitted by Mr Pratten, then I would want to see this referred for an official investigation.

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  3. You are correct in presuming that Davis Langdon get a substantial monthly fee for Pratten’s services. Documents seen, under the powers of the public to insect EDDC’s accounts, show some thirteen payments of around £10,500 each month are being paid to Davis Langon for Pratten’s services. Such payments (less VAT) are also shown on the councils ‘over £500’ a month payment page. You might wonder why EDDC isn’t paying Mr Pratten direct, and why their contract wasn’t with him if he was as embedded as Mr Cohen might expect you to believe.
    Further, those contractors who have been engaged by EDDC before, and who now seem shy about us knowing what they charge, should be aware that councils have to produce their accounts for public inspection. EDDC’s argument about commercial confidentiality is riddled with such holes.
    Further, the document constantly referred to as RRR (Resource Requirement Request ) is very specific about various requirements including as to the person to be provided by the contract winner. Despite such detail, there is nothing to suggest his status will be other than that of a normal consultant, absoultely nothing to indicate he would hold some special status within EDDC. Let’s not forget that there has been at least one other consultant employed by EDDC on a major project, he is not part of EDDC, his payments can be found on EDDC’s website.

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    • For many years I was a freelance IT contractor – organisations I worked for made payments to my employer for my services, but I was definitely acting as a temporary employee – I used their PCs, their email accounts, I had a job title within that organisation, was on their organisation charts etc.

      I also acted as a freelance IT consultant on a number of occasions – I used my own laptop, my company’s email account, wrote reports on the company letterhead / logo etc.

      In simple terms, you cannot tell from accounting records which basis Mr Pratten is working under – you need to look at the working practices hence the tribunal questions about these.

      But as per my other posts, the issue of FoI relates to reports, so these have to be the primary evidence – and they have every appearance of being reports from a DL Consultant rather than a pseudo-employee because they have DL logos all over them rather than EDDC logos, have been written under Mr Pratten’s DL job title, and have been approved by a DL director.

      Having worked in the public sector myself, I know that everyone reasonably senior in the public sector (e.g. Mr Cohen), is ALWAYS aware of the need not only to be above-board, but to be seen to be above-board. It is completely inconceivable that someone of Mr Cohen’s seniority and decades of experience could be unaware of how these would be perceived and the need to provide clarity if they were not to be considered as recommendations from an expert external consultant.

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    • As Ms Semple said and I paraphrase here, the Information Commissioner’s barrister said that with reports submitted with a front AND back page from Davis Langdon “It walked like a duck and quacked like a duck – did members think it was a duck?”. It seems the EDDC barrister (rightly) stopped Mr Cohen from answering on their behalf but it would have been an interesting reply!

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    • But the ICO lawyer did not point out that the documents were signed by Mr Pratten using his DL job title, nor did he point out that some of them had been signed by a DL director.

      So if it only needs logos to be “a duck”, then presumably with the use of DL job title and DL director sign-off it is “an ultra-duck”.

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  4. The comment by Damien Mills on Claire Wright’s blog http://www.claire-wright.org/index.php/site/comments/revealed_at_secrecy_hearing_eddc_overview_and_scrutiny_committee_was_given/ also suggests that further evidence should be provided to the Tribunal to demonstrate that, contrary to statements made by both Mr Pratten and Mr Cohen UNDER OATH, the evidence shows that DL were indeed actively involved as a company in producing the reports and ikt was not Mr P acting as alone as an embeded psuedo EDDC officer.

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  5. The original remit of this tribunal was the specifics of Jeremy Woodward’s FoI request, but it seems to me that by referring to their other information dissemination as evidence of their openness…

    ” Mr Cohen mentioned with regard to consultation that there had been 42 press releases on the subject, 2 meetings (one outdoors in Sidmouth, one in a community centre) and a “stakeholders meeting” (but later confirmed that the stakeholder meeting had taken place after the Knowle planning application outcome).”

    then EDDC have opened the door to us demonstrating to the ICO and the Tribunal that this is NOT the case, and that decisions are indeed being made in secret by a small clique (i.e. working party and cabinet) with both the public and other councillors being left in the dark.

    It sounds to me like we need to submit a list of:

    a. What information was requested by the public and not released, and what questions were asked publically by councillors and not answered;

    b. What information (and how little detail) was actually released to the public (and indeed to Councillors) in the press releases, and what specific meetings were held (i.e. to clarify whether they related to the Knowle move or to the Knowle planning application) plus what information was actually provided at these (and other council / committee meetings); and

    c. What changes have been made to the project without consultation or explanation (e.g. the change from Honiton to SkyPark);

    in order to demonstrate that there actually is a conspiracy to keep information secret that cannot really be justified as confidential e.g. on commercial grounds – e.g. approximate budgetary figures / business case without specifics would not seem to me to compromise commercial discussions, and do seem to me to be a fundamental pre-requisite to confirming the viability of a project like this and to justify the expenditure on expensive “expert” DL consultants like Mr. Thickett.

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  6. One of the key comments here was Mr Cohen mentioned a problem about footpath access and said that he did not wish to give information to the “other side”.

    EXACTLY!!!!! That attitude is precisely the reason that we need to have this tribunal in the first place.

    The whole point of the FoI Act is that EDDC has to make information available when requested – that is the law. He has NO CHOICE.

    He should remember that the council, and his role as Deputy CEO, exists to SERVE THE PUBLIC, and we are NOT “the other side” – we are ultimately his bosses (strictly he reports to councillors who are accountable to us – but I think you can get what I mean here). What does it say about Mr Cohen’s attitude to the democratic process, when he calls citizens “the other side”?

    Mr Cohen’s comment is a disgrace!

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