Tuesday, 18 January 2011

Respondez s'il vous plait

My dear fellow, they say if you're in one
you should stop digging
The rumours that I am a rather pitifully obsessive individual must be true. How could I resist? Sat in front of me on Christmas morning was a pristine, unopened box of documents courtesy of Mr Matthew Stephenson. Amidst the festinated wrapping paper and cacophonous excitement of younger family members, I surreptitiously donned my professional document waders and splashed around in the shallows of my last Subject Access Request for about an hour. It was worthwhile as in a very short space of time, an interesting email surfaced in a manner not too dissimilar to that of an ace of clubs from a pack of cards in the hands of a Penn or a Teller. I shall come back to the content of this email in due course.

The Witness Statement

This email does however draw me in an almost predestinatory manner on to the subject of claims made by a certain Registrar in a statement provided to the Court in the ongoing libel proceedings on 21st December 2010. Now, thanks to Dr Graves and District Judge Smith, most of this statement is in the public domain. This week I'd like to devote attention to a particular section that refers to an article taken from a ratcatchers post concerning Freedom of Information:

"It would appear that these to [sic] implacable University bosses regard themselves as immune to the whims of a mere legislature in the shape of Parliament, and feel that they can readily cock their metaphorical hind legs at the trifle of the English Law whilst offering the universal one-finger salute again to the Freedom of Information Act (2000) and its human embodiment, the Information Commissioner".

Dr Graves complained that these words were defamatory because:

"By their natural or ordinary meaning and/or by the way of innuendo the words complained of are meant to mean that I and Professor Hall are prepared to ignore the Law, and acted unlawfully and are dismissive of our obligations towards an Officer of the Crown. Again, this is completely untrue and there is no foundation whatsoever to support their contentions. At all times, Professor Hall and myself act lawfully and comply with our obligations under the Freedom of Information Act (2000)."(1)

Now my son... did they not tell you that
an allegation of vexatiousness could result in
prematurely meeting thy maker?
Asking questions is perfectly legitimate

At this point, it might be germane to direct our attention to the whatdotheyknow website, which is a bona fide online platform for making Freedom of Information requests. It is with some interest to note that as of 14th January 2011 there were ninety seven (yes that's a whopping 97) UoS refusals of FOI requests out of one hundred and twenty six (yes that's 126) total requests posted via this site. There are also seven (7) requests that are classed as  'Long Overdue' and nine (that's 9) awaiting an 'Internal Review'. It's this last category that is proving interesting as the ICO's guidance on this matter states quite clearly that:

"...the Commissioner considers that a reasonable time for completing an internal review is 20 working days from the date of the request for review. There may be a small number of cases which involve exceptional circumstances where it may be reasonable to take longer. In those circumstances, the public authority should, as a matter of good practice, notify the requester and explain why more time is needed. In our view, in no case should the total time taken exceed 40 working days. In such cases we would expect a public authority to be able to demonstrate that it had commenced the review procedure promptly following receipt of the request for review and had actively worked on the review throughout that period."

The writer in his
 earlier 'patient' period
The job of patience

Rumour has it that I'm a patient chap. However, FOI Champion Dr Graves* might like to direct his attention to at least one outstanding Internal Review that rests glaringly un-replied-to since the 14th December 2009. As well as being patient, I'm also sensitive to issues of workload-balance. But since my request for an Internal Review didn't even merit a reply from the University, I decided to give Mr Stephenson a second chance and wait another seven months (7 months) for him to reply which he didn't. It was then that I decided to give him a little 'prod' which I thought might move things along:

"Dear Mr Stephenson

It is now over seven (7) months (months) since I requested an internal review regarding your decision in refusing to accede in providing me with the above information. Can you explain to me why you have not processed this request under the provisions laid down by the Freedom of Information Act 2000?

Yours sincerely,

Dr Gary Paul Duke"

Alas, despite my timeous reminder, Mr Stephenson didn't acknowledge my 'prodding'. Now some might be aware that the holding of opinions can get one into trouble. Bearing this in mind I decided to poll a few associates. All concurred with my own opinion that this is generally referred to in FOI circles as a 'breach' of the Freedom of Information Act or more simply put, a breach of the law. Why? Well as a Public Authority, the University are REQUIRED BY LAW to respond within the guidelines laid down by the ICO. I'm also well aware that on the 8th November 2009, Dr Graves in an email to Watkinson and Mr Stephenson asked to be kept informed of "any" Freedom of Information requests made to the University.(2)  I mention Dr Graves here because according to Matthew Stephenson, he has had some sort of involvement in another FOI request with regard to the University's use of Halliwells LLP.

Who makes the initial decisions to reject FOIs at UoS?

Given Dr Graves allegations in his highly original statement to the court, I am keen to discern exactly what form this involvement takes. It is at this point that I should make it clear that the Registrar has corporate responsibility for complying with the FOI Act (2000). A posting by Mr Stephenson on whatdotheyknow dated 8th November 2010 addressed to 'Alison' presumably Alison Mullan (nee Purnell), Dr Graves Chief of Staff, said:

It's near displaced Gooley Street
A wayward knacker

Amusingly, almost immediately after posting this on whatdotheyknow, someone within Information Governance tried to recall the email - unsuccessfully! This action was highly suggestive... highly suggestive of a bollock having been dropped! According to the wording of this wayward knacker, Dr Graves "was involved in the first request" and the first request seemed to have been refused. "Why" I pondered, "was Dr Graves involved in the first request." Might some consider that direct involvement in a specific FOI first request might be taking 'ensuring compliance' a little far? I scratched my head mulling over the question in my mind. "Was this usual procedure?" I asked me. Being a rather naive type, I presumed that this would be Mr Stephenson's job. He is Head of Information Governance after all.

The Data Protection Act and that little old thing called a Subject Access Request

I have written before on the ongoing Homer-poem of the refused Freedom of Information of requests. No doubt I shall be writing about them again in future. Currently the ICO is investigating the University and the manner in which my requests were refused. I'm not holding my breath over this. But I've also had good reason to contact the ICO with regard to the provision (or more correctly the lack of provision) of my personal data under a previous Subject Access Request (SAR) in November 2009. In fact I have had cause to contact Mr Stephenson quite regularly over this issue. In an email to him dated 11 February 2010 I brought to his attention that certain staff including one Dr Graves (see below), had not been as forthcoming with data as they should have under my initial request made in November 2009.(3) Oddly enough, after my letter to Stephenson, Dr Graves found the letters sent by Damien Shannon to him, and they were provided to me forthwith. However, given the delay, some might be of the opinion that this is a breach of the Data Protection Act by the University.

What's the probability of getting a positive response
to an FOI request if your initials are GPD?
Even reasonable types have their limits

Now as I've alleged before, I'm a reasonable chap but even I have limits. So I was a little surprised when Mr Stephenson wrote back that same day and informed me that Vice Chancellor Martin Hall had informed him that he had no "...personal information..." relating to me.(4) I say surprised because I had been supplied with documents (not supplied by Martin Hall) as part of the original SAR in November 2009 which contained an email string and an email sent by a chap called Ed Rowan to... well, Vice Chancellor Martin Hall's University email account (cc'd to Graves and Watkinson). The original email was dated 31st July 2009, four days before my disciplinary hearing. Adjacent to the word 'subject' it said "Email as discussed - OFF THE RECORD." Professor Hall also had email correspondence between myself and him regarding the issue of some serious allegations made in signed statements against Dr Graves by two individuals at his former University Robert Gordon. At the time I wondered why Professor Hall had also omitted to supply any copies of this correspondence.(5) 

A quick refresher course

I thought it was time to refresh my memory on the test for vexatiousness as laid down by the ICO under Section 14 (1) of the FOI Act (2000). It asks that several considerations be taken into account in assessing a request: (i) Can the request fairly be seen as obsessive? (ii) Is the request harassing the authority or causing distress to staff? (iii) Would complying with the request impose a significant burden in terms of expense and distraction? (iv) Is the request designed to cause disruption or annoyance? (v) Does the request lack any serious purpose or value? The guidance was clear. It went further:

"However, you should not automatically refuse a request simply because it is made in the context of a dispute or forms part of a series of requests. You must still ask whether the request is vexatious in that context by considering the questions listed above. An important point is that it is the request, not the requester, that must be vexatious. You should not automatically refuse a request just because the individual has caused problems in the past. You must look at the request itself."(6)

The finale to this little tale, brings me back to the Christmas morning email. It was dated 20th November 2009. It was from Adrian Graves to Watkinson, Hall, Jenks, and Matthew Stephenson. It was sent in response to an email I'd sent to Watkinson in November 2009 asking for copies of all complaints made by HoS John Wilson and Xiang Li against me in support of the claims that I'd bullied and harassed them. Additionally, I thought it best to also ask him for copies of any witness statements made by the two. Graves' email was short and pithy, and stated unambiguously they were considering treating any FOI requests made by me as vexatious, that they believed they had reasonable grounds to do this and would be responding to me in those terms.(7)

Duvet refusals

Search as I may, I couldn't find within the ICO Guidance notes on Vexatious Requests any reference to blanket refusals on any future requests. Might such a policy prove to be in breach of the Freedom of Information legislation I wondered? I'm of the honestly held opinion that it certainly undermines the veracity of some of the allegations made in Dr Graves' witness statement. If any legal types have an opinion on this matter and you'd like to share them, please press here. But there again Mr Stephenson would know wouldn't he? Surely, as Head of Information Governance, he would seek to correct the Registrar with regard to his role as FOI Champion and the University's legal obligations under Freedom of Information legislation?

Funnily enough, I couldn't find that email in the bundle.

*According to the University's Freedom of Information Policy, corporate responsibility for complying with the  Policy lies with the Registrar, Dr Graves.

(1) Section 3.1, of the witness statement provided to the Court by Dr A Graves  on 3 Dec 2010, read to the court on 21st December 2010 by District Judge Smith (public domain)

(2) Email from A Graves to K Watkinson, cc'd to M Stephenson, A Purnell, Dated 8th Nov 2009, Subject: FOI request (ref:091103-431)
(3) Letter from G Duke to M Stephenson dated 11 Feb 2010:

"Dear Mr Stephenson

I refer to your letter dated 2nd February 2010 concerning your provision of 'the remaining information' in relation to my recent Subject Access Request made under the Data Protection Act 1998.I note that in the bundle you have sent me, there are no notes or emails from Mr Simon Attwell who was the Chair of the Appeal Panel, which convened in October to hear my case. I also refer to the extensive notes that he took during the Appeal Hearing by Mr Attwell, which were referred to within that hearing. Under my DPA request I would have expected these notes to have been included, as should the notes of Professor Tony Warne and Phillip Hopwood who comprised the panel for the Disciplinary Hearing.I note that you have also not included any email correspondence between HR, senior managers and Professor Cynthia Pine, who has been delegated to chair the student disciplinary procedure.Furthermore, it would appear from the information I have already received from you, that Vice Chancellor Martin Hall was privy to, and involved within the overall process of my suspension, the disciplinary process and the appeal. I have not received any copies of correspondence or emails from Professor Hall. Professor Hall was also involved in the approach made to me via Mr Watkinson of HR the day prior to my Disciplinary Hearing at the UCU offices in Old Trafford on the 3rd August 2009. If there are emails or correspondence which centre around this approach made to me, I would also like to be provided with these. I would also like to be provided with any notes taken by the HR representative who attended this meeting with Mr Watkinson. Although you have furnished me with an email exchange between Damien Shannon and Dr Adrian Graves that took place on 11th August 2009, I have been informed by Mr Shannon that there were at least two emails sent to Dr Graves that concerned me. The title of Mr Shannon's email 'Still Another Update' also suggests that there are other emails that concern me specifically. It might be the case that the reason that Dr Graves has not forwarded this email to you for the bundle is an oversight on his part. Might I suggest that you ask Dr Graves to revisit his email correspondence, and provide your office with the information as required under the 1998 Act? If I find any other omissions, I will of course contact you immediately.Given the imminence of Employment Tribunal in March/April, I hope you can correct these oversights speedily. If you can contact me within five working days, I will refrain from writing to the Information Officer concerning this non-compliance with the 1998 Act. 

Yours Sincerely, Gary Duke"

(4) Email from M Stephenson dated 11 Feb 2010
(5) Email from G Duke to Martin Hall, dated 18th June 2009:

"Dear Professor Hall.

Some information has recently come to my attention concerning the Registrar and Secretary at the University of Salford Dr Adrian Graves. I have been informed that this you have had this information in your possession for several weeks. The substance of this information concerns Dr Graves interaction with two South African students during Mr Graves tenure at Robert Gordon University.

Given my own long-standing and well documented commitment to anti-racism as well as the University's commitment to equal opportunities for all at the University of Salford, and your own past history and principled stand against the racist apartheid system in South Africa, I believe these allegations need to be addressed with utmost urgency before they enter the public domain and generate negative publicity. 

Clearly any publicity of this nature would almost certainly have severe implications on our ability to continue to recruit international students to the University, which must be avoided at all costs.

Given their highly sensitive nature, and in a personal capacity, I would like to arrange an informal meeting on a one to one basis with you to discuss these allegations and some of the points I have raised above.

I look forward to hearing from you. 

Yours sincerely

Gary Duke
Branch Secretary & Casework Coordinator
(Personal Capacity)"

(6) Sourced at http://www.ico.gov.uk/upload/documents/library/freedom_of_information/practical_application/vexatious_requests_a_short_guide.pdf
(7) Email from A Graves to Keith Watkinson, Martin Hall, Paul Jenks, Linda Walsh and Matthew Stephenson dated 20th November 2009

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