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.
Cllr Ian Driver
On 7th June Harvey Patterson the Council's legal officer replied to me on behalf of the Chief Executive advising me that I was not entitled to see any of the documents I had requested because he deemed them to be confidential.
I replied to Mr Patterson on 10 June challenging his decision here is my reply
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 £3.4 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.
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