Justice CommitteeWritten evidence from Derek Dishman

1. Introduction

2. My name is Derek Dishman. I write the Mr Mustard blog about Barnet Council (Mr Mustard)1 which came about following two events:

3. The increase in the spring of 2010 in car permit charges from £40 to £100 for residents to park in the CPZ; and

4. I attended a Residents Forum to ask about car permit prices and found that it was an undemocratic event and that the council was not open or transparent.

5. After a little research I found that there were already four busy & critical bloggers in Barnet (famousfivebarnetbloggers)2 and I was unable to stop myself from becoming the fifth.

6. The committee may be aware that at a CIPFA conference the Right Hon Eric Pickles MP praised the work of bloggers in Barnet and mentioned three of us by name, as he values the scrutiny (or armchair audit as he called it).

7. Executive Summary

8. I have had a somewhat strained relationship with Barnet Council and I sometimes feel management want to make my FOI life as difficult as possible. However, many staff are supportive, read the blog and a number answer FOI questions speedily and helpfully. Numerous obstacles have been put in my way but FOI has resulted in the highlighting of deficiencies which, once corrected, have led to huge monetary savings.

9. The Issues

10. Does the FOI Act work effectively? Only if the responding organisation is happy to release the information.

11. What are the strengths and weaknesses of the FOI Act? The main strength is that routine information can be rapidly released into the public domain and leads to a greater understanding of government. The main weakness is that it is easy to dodge the question or put obstacles in the way and the ICO complaints procedure is a lengthy one. A second major weakness is that, if outsourced, services may not be subject to FOI legislation.

12. Is the FOI Act operating in the way that it was intended to? I don’t believe so based upon the problems I have faced.

13. Counter-Attacks

14. I started with my first published blog post on 10 March 2010. I am told that very quickly I was public enemy #1 at Barnet Council. I have recently discovered in an FOI response that the interim Assistant Director—Communications, a Mr Chris Palmer, has described me in writing in an internal email as a “sad little Johnny no-mates”. Although acting as an employee since, I think, June 2010, Mr Palmer invoiced the council for £114,912 through Renouval Ltd in the council tax year ended 31 March 11.

15. I was the subject of a referral to the Information Commissioner by the council on the grounds that I was not registered under the Data Protection Act. See The David Hencke blog. 3 Technically Barnet Council made an enquiry to the ICO, but did so on a complaint form and referred to it as a complaint in the covering email. When they received the advice from the ICO that I had done nothing wrong they argued against it using EU case law.

16. I made pretty constant use of FOI in order to help me learn about the council when I started blogging, submitting a request most days. This led to Barnet Council saying that a blogger in Barnet had asked 175 questions in 6 months which £40,000. Although the blogger was not named it was a simple matter for the local papers to telephone the other 4 bloggers and eliminate them so I was publicly outed by default. Please see conservativehome.blogs.com.4

17. I challenged Cllr. Thomas to substantiate his figures and it turns out that he used a “typical” cost of £225 to form his estimate and that Barnet council did not keep track of the time spent on each request. Basically the £40,000 was a guess, and an over-statement, as many of the questions I posed were simple ones.

18. Vexatious Requests

19. The following three questions, all submitted together, were deemed to be vexatious.

20. What are the names of the project manager for the SAP Optimisation project and the One Barnet programme manager. Are they employees or contractors ? If they are employees please provide the salary range of their posts and if they are contractors please tell me which contractor supplied them and the daily rate of charge?

21. Do Logica provide any in-house consultants and if so how many, provide the names of the consultants and their daily charge rates?

22. What is your main job title please (asked of an employee in the One Barnet office)

23. SAP is multi faceted computer software, which the council relies on for accounting, HR, payroll, management information and other administrative functions. It is extremely powerful and evidently complicated. The spend on it has spiralled out of control and has now cost more than £23 million just for software, from an original cost estimate of £2.5 million.

24. The grounds for deeming the requests to be vexatious were:

(i)Compliance would create a significant burden in terms of expense and distraction.

(ii)The request has the effect of harassing council staff.

25. I am the only person against whom the grounds of vexatious behaviour has been levelled by Barnet Council. With the arrival, on contract, of a sensible and professional FOI officer, with whom I have perfectly civil and businesslike correspondence (I stress that I am always civil—only the content of my questions is sometimes difficult as I insist on proper and correct answers) the accusation of vexatious behaviour was withdrawn and the information was provided.

26. Delay

27. I do not track the requests I make although I now give them my own unique reference numbers. Sometimes they are not acknowledged although they have been received and sent out to departments to answer. It is quite common for answers to be late. Rather than asking for a review, which uses up management time, I now nudge the council to respond which seems to work with them then often being able to answer on the day of the nudge. Part of the problem has been that their software is really not up to the job and they are currently installing new FOI software. I am hopeful that this will lead to an improved response rate.

28. Aggregation

29. Barnet council aggregate nine of my requests because they concerned nine companies who all appeared in the over £500 spending lists which the council has to publish. That was the only commonality. I pointed out that the requests were as similar as I am to my sisters (ie not at all) and I now await the formal review response which, I am told, upholds the aggregation and will probably end up on the desk of the ICO.

30. Refining Requests

31. Although professional FOI offices realise they have a duty to be helpful this has not percolated through to the service areas. It is quite normal for requests to be rejected as they cost too much. An example was tablet computers on loan to temporary staff. The answer was that there were 462 managers who each kept their own record of issue and it would have taken too long for them to each look up the answer and aggregate it all. There was no suggestion by Barnet Council to refine my question. I then asked about just one department and was told it was still too large. I then asked how many managers were in that department and how many minutes each was expecting to dedicate to my question. That went unanswered for some time and I sent a further reminder with a copy to a known helpful officer. This led to the information that a “temp” does not get their final pay cheque until they hand in all their equipment and so there had been, as far as the council could tell, no losses. If I had been told this information at the beginning both sides could have saved a lot of time.

32. Redaction

33. Barnet council are very keen on redaction. I contrast their approach to that of Hackney council. I asked both of them for the recycling contracts held with May Gurney. Hackney Council provided theirs in full without a single redaction; all prices and terms were visible. Barnet Council crossed out masses of stuff, 98% of some pages and failed to provide some of the schedules until they carried out my requested review when they released a small amount of extra information but basically left me with a contract that was impossible to read coherently.

34. Overstating Costs to Justify Refusal

35. Barnet Council seem to operate a bias in favour of inflating costs to justify a refusal. I asked the council to review 140 redacted entries in the over £500 spending lists which by their categories looked to me as if they should be published. The request was refused as each invoice would take 24 minutes to identify and retrieve which at £25 per hour would cost £10 per invoice. I asked another question: how much does each purchase ledger invoice cost to process? and the answer was £1.79 so I felt that the cost of retrieval had been over-stated.

36. Future Publication

37. Whenever management structure is changed a number of senior people leave the employment of the council with £100,000+ cheques. This is only discovered once a year when the annual Accounts are published. The employee concerned may have left as long ago as 14 months. A request I have made for information on a particular ex-employee has been refused on the grounds that it is for future publication and that release of the information would hamper the work of the audit committee. I do not accept the second argument as the audit committee cannot get any money back from the ex-employee. They scrutinise the draft Accounts although they can only change incorrect figures not facts. The future publication argument is a valid one but I think that when the date is over a year in advance the exemption should not apply. I would like to suggest a period of 3 months as being more reasonable.

38. Errors

39. Accuracy of FOI responses is only as good as the data available or the care given to the question by the responder. I can think of 3 errors. In a public committee meeting a senior officer said that the council had 189 computer servers. Given the exactitude of the figure I expected a list would be readily available. It turned out that the officer did not mean servers, he meant software and a list was duly provided. It contained 177 entries. Responses to other later questions have turned up two other software systems which should have been included in the first answer.

40. I asked for a copy of the Gifts and Hospitality register for senior officers ( those earning £58,200 p.a. or more ). I put some of it on my blog and observed that the Chief Finance Officer had not been entertained by anyone. Some weeks later, possibly after the said officer had read my blog, a correction arrived out of the blue containing a list of the dozen or so lunches etc that had been enjoyed by him.

41. I asked a question about values invoiced by the top 50 suppliers to the council. A printout arrived quite quickly. I saw that the answer was easy to obtain and so I asked for the next 450 entries. When this second list arrived I noticed that “redacted” was the 80th largest supplier for over £400,000. I queried this entry and was told that it was the total of all redacted entries. Apart from the fact that “redacted” is not technically a supplier and was an amalgamation of a number of different redacted supplier entries there was another entry for “redacted” in the first 50 entries for £9.7 million, so the £400,000+ entry certainly was not the total.

42. Apparently not Applicant Blind

43. I saw that a payment of £150,000 had been made to PricewaterhouseCoopers. I asked what it was for. It was for 16 reports on the subject of Revenue Income Optimisation (ie price increases). I asked for the titles of the 16 reports intending to ask for one or two actual reports after that. I have been denied even the titles on the grounds that “PwC has specifically requested that Barnet does not disclose the titles of the reports or the items they looked at as doing so would give away their intellectual property and would potentially prejudice their commercial interests”. It turned out that one of the reports themselves had already been provided to another requestor. He had passed it on to me and it had already been published on my blog.

44. Money Saving

45. The Barnet bloggers discovered between them in the spring and summer of 2011, by using FOI, that Barnet council had used a number of security companies with the word MetPro in their name that were not registered with the Security Industry Authority and employed staff who had not had Criminal Records Bureau checks, despite the fact that this is a criminal offence and that they were in contact with vulnerable adults and children. These companies, one of which quietly took over work for the council after another MetPro company was liquidated, did not have formal written contracts with Barnet council, had not been through any procurement process, in breach of EU directives, and were paid in the region of £1.4 million over five years. The security contract is now going through a proper tender process but in the meantime the work has been placed with another existing supplier who are 14% less expensive and will save the council £196,000 on the next £1.4 million spent.

46. Following investigation into this scandal the council’s internal auditor’s own investigation into contracting led to her being able to give only limited assurance on the majority of departments.

47. I discovered in October 2011 that Barnet council were using a supplier called RM Countryside Services Ltd (“RMC”) to remove all parking meters throughout the borough. It was a public document which showed me that the tendering rules had not been properly followed and that led me to make an FOI request, which showed there was not a written contract in place and yet £2.6 million has been paid to RMC since 2005 I also ascertained that their work for the council exceeded 25% of their turnover, a breach of the council’s Contract Procedure Rules. Until it was pointed out by me the council was unaware of this. The removal of parking meters has now halted whilst the tendering process is re-run. There is no question but that increased competition would have led to finer prices for some of the £2.6 million spent with RMC.

48. At a much smaller level I questioned the amounts paid out for the use of meeting rooms around the borough for the Residents Forums. Following my question 2 of the three regular meetings now take place in council buildings saving about £2,000 p.a.

49. All of the Barnet Bloggers have highlighted the problems with procurement throughout 2011. This led to a Procurement Action Plan which includes a single Contract repository for the council and £436 million out of a £531 million spend now having compliant contracts. This can only have saved money for the council and eliminated risk from using less and/or unsuitable suppliers (the number of suppliers has been reduced from 8,271 to 5,820).

50. Copyright

51. Peterborough City Council had the following footer on their FOI responses in July 2011.

52. The information supplied to you in response to your request is the copyright of Peterborough City Council and is protected by the Copyright, Designs and Patents Act 1988. You may use it for the purposes permitted by that Act, including non-commercial research and news reporting. Any other re-use, for example commercial publication, requires the permission of the copyright holder. If you wish to re-use any information supplied you must first gain the council’s explicit written consent. In order to make a request to re-use the information please contact me at the address above.

53. I wrote to them as follows:

54. I refer to your claim to have copyright in your reply. I repeat below the first section of the Copyright, Designs & Patents Act 1988. Are you claiming that your email is an original literary work ? or some other copyright work ? Please enlighten me:

1.Copyright and copyright works:

(1)Copyright is a property right which subsists in accordance with this Part in the following descriptions of work:

(a)original literary, dramatic, musical or artistic works;

(b)sound recordings, films [or broadcasts]; and

(c)the typographical arrangement of published editions.

55. I never did learn if the response was supposedly a work of literature but Peterborough CC did at least then change their footers to the following:-

56. “You are free to use any documents supplied for your own use, including for non-commercial research purposes. The documents may also be used for news reporting. However, any other type of re-use, for example by publishing the documents or issuing copies to the public will require the permission of the copyright owner, where copyright exists. Such a request would be considered separately in accordance with the relevant Re-use of Public Sector Information Regulations 2005 and is not automatic. Therefore no permission is implied in the re-use of this information, until such request to re-use it has been made and agreed, subject to any appropriate conditions”.

January 2012

References: Hyperlinks to Websites

1 http://lbbspending.blogspot.com/

2 http://famousfivebarnetbloggers.blogspot.com/

3 http://davidhencke.wordpress.com/

4 http://conservativehome.blogs.com/localgovernment/2011/09/one-blogger-has-cost-barnet-council-40000-in-foi-requests.html

Prepared 25th July 2012