"FERRYGATE" SCANDAL WHAT HAVE THEY GOT TO HIDE?

I reproduce below an exchange of e-mails between myself the Council's Chief Executive, Dr Sue McGonigal, the Council's Legal Officer, Harvey Patterson, and the Council's Director of Operations, Mark Seed. This exchange was prompted by my request  to see the Council's documents relating to the TransEuropa scandal. My request was refused. I challenged the grounds on which  my request was refused. The matter was then treated as a Freedom of  Information (FIO) request. My FOI request was refused, I have now asked for  an internal review of the decision to reject my FOI request. I bet my next JSA payment  that the internal review supports the rejection by the Council of my FOI request. Which leaves my final option - an appeal to Information Commissioner who I feel confident will order the Council to let me have the documents.

This grotesque, time consuming and very costly farce is a direct result of a small group of very senior council officers and the leaders of the Tory and Labour Party administrations agreeing a top secret deal which allowed Transeuropa Ferries (TEF) to run up an estimated £3.4 debt which will never be recovered.  You and I will have to pay for this through reduced services and increased council tax.

Is it any wonder that the architects of this ill-conceived, high-risk gamble with public money,  want to supress the truth of what went on behind closed doors. This is why they are trying to stonewall my requests because they know that the documents are likely to  expose some unpleasant potentially career-ending facts.

If and when I have access to these documents I will  publish them and you, the  voters,  can draw your own conclusions.

1 July 2013

Dear Sir/ Madam

I would like to request an internal review of this case.

I do not accept that allowing me to inspect the information I have requested to see will in any way prejudice the court case. The court will already have access to this information so I fail to see how me seeing it will have any impact on the case. The Court case is taking place Brussels so any discussion about information relating to the case is unlikely to have any impact. Transeuropa has very few assets and it is extremely unlikely that the Council will recover any of the £3.4 million  it is owed. There is therefore little to prejudice by letting me see the information.

There is an overwhelming public interest in revealing how the Council managed the Transeuropa debt particularly with regard to keeping this debt secret from most councillors and not including it in the annual accounts.

I look forward to hearing from you.

Yours sincerely  Councillor Ian Driver

----- Forwarded Message -----

From: Mark Seed

To: Cllr-Ian Driver

Sent: Thursday, 27 June 2013, 17:36

Subject: Transeuropa Ferries - Ref No: 50608

 

 Dear Cllr Driver

 Thank you for your communication received on 3rd June in which you requested information about Transeuropa.

 Harvey Patterson responded at length in relation to access to information in your role as a councillor and your position on Overview and Scrutiny Panel. The response below relates to your request being logged as an FoI as if this was coming from a member of the public.

The information you request relates to meetings and other communications with Transeuropa and this information would be directly relevant  to legal action taken by the council to recover the outstanding debt. Premature release of information relevant to a potential legal action could be significantly prejudicial to a legal case taken by the council.

 It is almost certain that this information would be released into the public domain and lead directly to the prejudice to any potential case.

 The council is owed over £3 million and any prejudice to legal action it may take would be significantly prejudicial to its commercial interests. The application of a public interest test in relation to this under Section 43 of the Freedom of Information Act relating to commercial interests has been applied to this situation and it is considered that the balance of public interest lies on the side of not releasing the information you have requested as the wider public interest lies in retaining the confidentiality of this information at this stage. This will remain the case until the issue with regard to the legal action to recover the Transeuropa debt is resolved.

 If you are dissatisfied with the handling of your request, you have the right to ask for an internal review. Internal review requests should be submitted within two months of the date of receipt of the response to your original letter and should be addressed to: Information Request Assessor, Thanet District Council, P O Box 9 Cecil Street, Margate Kent CT9 1XZ, or send an email to foi@thanet.gov.uk.

 If you are not content with the outcome of the internal review, you have the right to apply directly to the Information Commissioner for a decision. The Information Commissioner can be contacted at: Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF.

 Yours sincerely,

 Mark

 

From: Harvey Patterson

Subject: RE: Transeuropa Ferries

Dear Councilor Driver

 I  refer to your second  e-mail of 10 June 2013 and note all that  you say.

However,  I do not agree that  you have a need to know by  virtue of being a Ramsgate Councillor for a ward that does not include the Port of Ramsgate.  However, I did  in fact in my e-mail of 10 June  acknowledge  your statutory and constitutional rights of access to information as as a member of the Overview & Scrutiny Panel and have only denied you access  to  information  that I consider to be confidential  - as  the Constitution  authorises me to do. (Despite what you say, the Oveview &  Scrutiny Panel  has not yet decided to  undertake a review of this matter).

I also note your view that all the relevant information concerning this matter should be in the public  domain and I would remind you that  although have have a statutory right to  access confidential  information in certain circumstances, you do not have a  right to disclose confidential  information, nor have you been authorised by the Council to do so.

It is  partly for this reason that I also  decided to treat  your request as a  Freedom of Information Act request ,  thus enabling  due consideration to be given to the relevant information and  for the public interest to be carefully evaluated by an authorised officer. Should this result in  some or all of the relevant information entering the public domain,  all well and good as it will have occurred as a result of careful consideration and not by the unilateral decision of an individual member

Your sincerely

  

From: Ian Driver [mailto:ianddriver@yahoo.co.uk]

Sent: 10 June 2013 09:44

To: Harvey Patterson

Subject: Re: Transeuropa Ferries

Dear Mr Patterson

Thank you for replying on behalf of the Chief Executive to my e-mail to her of 2 June 2013 requesting to see all the documents held by the Council and its Executive in relation to the Transeuropa Ferries debt of £3.4m to Thanet District Council.

I am very disappointed that you have chosen to be unnecessarily obstructive in your response. I am also disappointed that the justifications for your obstructions are ill-conceived and incorrect.

You appear to have denied me access to the information I requested about the Transeuropa Ferries debt for the following reasons

1.      Failure to provide you with a “right to know”.

2.      That as a member of the Council’s Scrutiny Panel I am only able to request information which has already been included in the OSP’s collectively agreed  programme of work

3.      Denying me information because you deem it  to be confidential under the terms of  the Schedule 12A of  the Local Government Act 1972

I will deal with each of these issues separately

Right to Know. I am a Ramsgate Councillor and the Transeuropa Ferries issue relates to the management of the Port of Ramsgate. I therefore have a “right to know” because of electoral geography.  There is a very strong public interest in the Transeuropa Ferries issues as evidenced by extensive press, TV, radio  and internet media coverage.  I have also been contacted by many constituents, non-constituents and journalists  who  wish to hear from an elected councillor how the Transeuropa situation came about and what the Council did/ is doing to protect taxpayers money. I therefore have  a “right to know” on the basis of public interest.

Scrutiny members’ right to information.  Your reply appears to suggest that Scrutiny members are only allowed to see information which relates to a programme of work collectively agreed by the OSP. If this is true then I draw your attention a statement  made in the Friday last  edition of Gazette by OSP Chairman Cllr Jo Gideon which says that it’s not a question of if the OSP investigates the Transeuropa Ferries issues, but when. I also have e-mail correspondence between myself and Cllr Gideon in which she indicates that OSP will be discussing this issue. It is clear that OSP will be looking into this matter and that therefore you should be allowing me to see all the relevant documents so that I can prepare myself for discussion at the OSP.

Notwithstanding the above, I challenge your erroneous view that that members of OSP can only ask for information related to issues which form part of a collectively agreed work programme. This is not the case.

Paragrpah 17 of The Local Authorities (Executive Arrangements) (Meetings and Access to Information) Regulations 2012 (Additional rights of access to documents for members of overview and scrutiny committees) states that

“a member of an overview and scrutiny committee of a relevant local authority is entitled to a copy of any document which—

(a)is in the possession or under the control of the executive of that authority; and.

(b)contains material relating to—.

(i)any business that has been transacted at a meeting of a decision-making body of that authority;.

(ii)any decision that has been made by an individual member of that executive in accordance with executive arrangements; or.

(iii)any decision that has been made by an officer of the authority in accordance with executive arrangements

This regulation does not require, as you incorrectly believe,  that the information requested by an OSP member must be part of a collectively agreed programme of OSP  work before it can be made available to that member. On the contrary the regulation clearly permits OSP members to review and scrutinise Executive decisions on an individual basis, presumably with the intention of referring anything they might discover to the OSP or any other appropriate body. This regulation describes precisely my actions and  I therefore insist you allow me to exercise my legal rights.

Confidentiality

Your decision not to allow me to see the documentation I have requested on the grounds of confidentiality cannot be justified. The fact that there is an extremely strong public interest in how Thanet District Council was able to  secretly allow Transeuropa Ferries to run up a debt of over £3.4 million, mitigates against keeping information about this confidential from Councillors and the public. The fact that much information about this issue is already in the public domain also mitigates against your decision to keep documents secret. The fact that TransEuropa Ferries is  in administration means that there cannot possibly be any commercial reasons to keep documents related to a non-trading company secret from elected councillors and the public.

Finally,  Paragrpah 17 of The Local Authorities (Executive Arrangements) (Meetings and Access to Information) Regulations 2012  states that an OSP  member who is reviewing or scrutinising decisions made by the Council’s Executive has the right to inspect “any such document or part of a document as contains exempt or confidential information”. Once again the regulation does not link the process of review or scrutiny with any  work programme collectively agreed by the OSP. Furthermore the Regulations  also make it clear that that the term “documents means any report or background papers taken into consideration in relation to an executive decision”. Your decision to deny me access to these documents for the reasons you have given is therefore clearly unlawful.

Please note that  The Local Authorities (Executive Arrangements) (Meetings and Access to Information) Regulations 2012 require that inform the OSP in writing why you have decided not to let me have access to the information I have requested.
I would be grateful if you could reconsider your position in light of my comments and arrange for me to inspect all the documents relating to the Transeuropa  support package including the £3.4 million.
If you are unable to comply with my request then please let me know as quickly as possible so that I can take the necessary steps to have your decision over ruled.

Cllr Ian Driver

 

From: Harvey Patterson

Sent: 07 June 2013 12:55

To: Cllr-Ian Driver

Cc: Sue McGonigal; Victoria Williams; Mark Seed

Subject: RE: Transeuropa Ferries

 

Dear Councillor Driver

The Chief Executive has refered your e-mails of  of 3 and 7 June to me for consideration and reply.

In considering your request,  I have taken  into account  that in the  recent  past  the Chief  Executive  has  had cause to write to you explaining  that being a councillor does not give you  a roving brief through the Councils administrative  records and that in each case you have to establish  'a need to know'.

I have also  taken into account the rights of access to information conferred  by the Constitution  on the Overview & Scrutiny Panel as a collective  and on  individual Panel  members .  In this regard it is relevant that you are no longer the the Chairman  of the Overview & Scrutiny Panel, nor, as at the date of writing,  is  the Overview & Scrutiny Panel reviewing the  issues surrounding the insolvency of Transeuropa Ferries, nor does this issue  appear on the Panel's current Work Plan as an item for future consideration.

That being so,  Rule 22.1 of the Access to Information Procedure Rules in the Council's Constitution confers on the Scrutiny Panel  and it's  duly constituted Sub Committees,  the right to a copy of  any documents in the possession or contol of the Cabinet that relate  to business transacted at a meeting  of the Cabinet or to the decisions  taken by an individual  Cabinet Member or by officers  under delegated powers.  These will consist of Cabinet reports, appendices and background documents  and individual Cabinet member/ officer  decision notices  and related background documents.

Rule 22.2 of the Access to Information Procedure  Rules  confers  on individual Panel members the same rights of access to information as the Panel has  - but with one important exception - the exclusion of any  right of access  to  confidential  or exempt information unless the  Scrutiny Panel or a Scrutiny Sub-Committee is actively scrutinising  or reviewing the matter,  or the matter appears in the Committee Work Plan.  As this matter is not  under review by the Overview & Scrutiny Panel  and does not appear in the Panel's 2013/14  WorkPlan, you do not have any right of access to confidential  or exempt information in relation to Transeuropa Ferries.

In this regard you already have the documentation in the possession and control of the Cabinet relating to the Cabinet recommendations to Council  on Transeuropa last week  and it is my understanding that there are no specific individual Cabinet member decision notices relating to  your requests  (because the receipt of  officer briefings do not require decision notices to be made), although I will seek confirmation of this understanding when Mark Seed returns from annual leave  next week.

Turning  therefore to your requests , some of these can be disposed of very quickly.  Firstly, the Council hold no reports or background documents relating to the legality of  'allowing  Transeuropa Ferries to use Council facilities without immediate payment'.  This is because  officers were satisfied  of the the legality of the actions  taken as debt  payment was being  deferred and  re-scheduled,  not remitted.  Secondly,  the Council holds no reports or background documents  relating to  the constitutional position of the officer decisions in this matter as these did not in my view raise any constitutional issue.

This leaves your request for reports and background documents  held by the Council in relation to 'the decision to allow Transeuropa Ferries to use Council facilities without immediate payment' as well as the monitoring of these arrangements .  In this regard it is my view that  the  documentation supporting the making and monitoring of these arrangements are confidential  and therefore  mat not be disclosed  to you as an individual Overview & Scrutiny Panel member - and may only be disclosed to the  Panel  itself or a Sub Committee of the Panel,  should the decision be taken by the Panel to review this matter.

This deals with your rights as a councillor.  As to your rights as an individual, I  intend  to treat your e-mail of 3 June as a request for information  under the Freedom of Information Act 2000 and  have arranged for it to be deal with accordingly.  You can find  more information about this  on the Council'sl web site or the web site of the Information Commissioner

Harvey Patterson

Corporate & Regulatory Services Manager

Thanet District Council

Tel: 01843 577005

 

From: Ian Driver To: Sent: Monday, 3 June 2013, 20:17

Subject: Transeuropa Ferries

Dear Dr McGonigal

I would like to inspect all the documents held by the Council in relation to the decision to allow Transeuropa Ferries to use Council facilities without immediate payment. I would also like to inspect all documents in relation to the monitoring of this arrangement and the repayment by Transeuropa of any monies owed to the Council. I would also like to inspect any reports or background documents held by the Council in relation to constitutional position of decisions related to this matter. Finally I would like to inspect any reports or background documents regarding  the legal position e.g. EU competition laws of the decision to allow Transeuropa Ferries to use Council facilities without immediate payment.

I look forward to hearing from you on this matter.

Yours sincerely

Cllr Ian Driver