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Thursday, 8 July 2010

The Improper and Disgraceful Conduct of Hackney Council

Let me introduce you to the strange world of Hackney Council.

Our story begins in May 2010 with Andrew Boff, a Conservative politician seeking election as Mayor of Hackney.

It would be fair to say Mr Boff did not have an easy relationship with Hackney Council.

For reasons which are not compelling, his election address was not included by the Council in the booklet sent to voters before the mayoral election. There was then a decision to list him as a candidate in that booklet but still exclude his election address.

I understand that this exclusion was based on "Counsel's advice", possibly the advice of a QC.

It must have been very clever advice, as I cannot understand why the election address was excluded.

Indeed, the exclusion simply smacks of improper practice.

However, it is not that distinctly odd decision which this blogpost is concerned with.

It is what happened next.

Something very troubling.


According to Mr Boff, and there seems no reason to disbelieve him, he was then contacted by confused voters, who had thought he was not actually standing for election.

For example, as stated in a local newspaper, the Hackney Citizen, Mr Boff received the following email:

04/05/10

Hi Andrew,

My wife called the above number which is on the Hackney Government Mayor Candidate election brochure which was sent to all houses in Hackney and has a two page comment from each Candidate for Mayor. She asked why the Conservative Party wasn’t listed / didn’t have a comment page like the other parties. XXXX1 at Hackney Government who answered the phone said that it is because the Conservative party candidate for Mayor didn’t meet the qualification criteria and so wasn’t eligible to run for Mayor. My wife pointed out that you are on the ballot paper, to which the man said that this was a development that came up after the ballot paper was sent which is why you are included on the ballot but not in the booklet. He also said the Christian party didn’t qualify either.



This was becoming a remarkable situation.

Not only had Hackney Council refused to print and distribute the election address of a candidate for the mayoral election, it was actually telling callers to the election telephone information line that no Conservative candidate was standing at all.

As Mr Boff explained to me:

I received a number of contacts from people who had said that they had called up the Council to ask why my manifesto was not in the Mayoral Booklet and been told I was not a candidate. I must say, that I thought at first they must be mistaken and had misinterpreted what had been said. I also received two emails from people (included on the Hackney Citizen website) which also made the accusation. I decided to test it for myself.


And so Mr Boff telephoned the election information line.

The Hackney Citizen explains what happened next:

Mr Boff the phoned the council as an anonymous caller to hear what enquirers were being told.

Mr Boff said, “The council call centre staff member went to talk to the election office staff to get advice and at the end confirmed that I am not standing".



This was now a serious matter.

It is really not open for a Council to misinform the public - the electorate - in this way.

Perhaps Hackney Council thought they could get away with this.


However, Mr Boff had taken the precaution of recording his telephone conversation.

And he handed the audio file to the Hackney Citizen.

I asked him why he handed it to the media and not take it up with the Council directly:

I initially did call the Council and asked them what they were going to do about it. I did not receive a satisfactory reply from them.


I also asked him whether it was really appropriate to record the council worker without telling her:

I wanted to reproduce, as far as possible, the experience of a cold caller to the Council. To announce that I was recording the call wouldn't have been conducive to that aim.

He added:

The officer concerned was exemplary and she went out of her way to perform her official functions with efficiency. I wish more were like her!


The Hackney Citizen, quite rightly, ran with the story and posted the audio file on its website. It was (and still is) posted in both a full and edited form.

The council worker is not named nor is she at all identifiable from the audio files.

But what is demonstrated beyond any doubt is that Hackney Council is telling voters that there is not a Conservative candidate for Mayor.


I asked Mr Boff whether the newspaper should have printed a transcript instead:

That's really a question for Hackney Citizen but I supplied them with the recording which they published. I did not supply a transcript. If I had supplied a transcript I'm sure they would have published that too. I am delighted that they chose to publish it in full and also an edited version. The advantage of the audio recording is that it is very difficult to tamper with and rebuts any accusations that the officer may have been misheard.


I posed the same question to Keith Magnum, the editor of the Hackney Citizen:

We posted the audio clips on our website as we believed there is a clear public interest case, and thought that people should be able to hear the evidence for themselves, believing it to be more compelling than if it had been reported in transcript form.


Now, confronted with such incontrovertible evidence of wrongful conduct, what would one expect Hackney Council to do next?

Hackney Council seems to then take leave of its senses.

One cannot overstate how bizarre and utterly inappropriate its next step is.


Hackney Council threatens the Hackney Citizen with an injunction.

And it does so in a way which is simply astonishing.

See here for perhaps the most witless litigation letter I have ever seen.

The Council does not even trouble itself was stating what law of which it believes the Hackney Citizen to be in breach.

And the Council does not think to mention on what legal basis it believes it can obtain such an injunction.

Any threat by a public authority to use the coercive power of law in respect of public criticism is a matter for concern and should prompt anxious scrutiny.

And any threat by a public authority against a local newspaper reporting alleged misconduct is a serious issue.

But for the public authority to not even state what the applicable law is for the legal threat is extraordinary.

How can the recipient of the threat even take appropriate legal advice as to how to respond to the threat?

The courts and the legislature have been careful to limit the ability of local authorities to threaten injunctions and other legal actions which may inhibit free speech.

The Derbyshire rule prevents public bodies from suing (and thereby threatening to sue) for defamation; the Spycatcher cases ensured that any public body seeking an injunction for breach of confidentiality needs to meet public interest requirements which are not demanded of private bodies.

And the Human Rights Act 1998, which gives effect to Article 10 of the European Convention of Human Rights, provides it is is unlawful for a public authority to do anything which disproportionately interferes with freedom of expression.

What regard does Hackney Council have to any of these significant legal issues in threatening an injunction?

None.

The threatening letter was improper.

And it is to the credit of the Hackney Citizen that it did not back down.


I asked Keith Magnum what his initial response was on receiving the letter:

We were puzzled as the Council's initial letter did not make any allegations of wrongdoing on our part. It simply stated that in the Council's view it was unlawful for Mr Boff to have disclosed the recordings to us. We were unsure why the Council addressed their concerns to us, rather than to Mr Boff.


I then asked Mr Boff what his view of the threat was:

Despicable but a confirmation of the generally Orwellian approach that has seen lawyers being used to hush people up and the Council barring people from its premises for not having the right views. This is how they have operated for years. People in receipt of their largesse know that to challenge the Council risks grants being withdrawn and vilification.


What concerned me was the lack of an legal basis for such a serious threat.

An injunction, and a threat of an injunction, should not taken lightly. It is a court order, the breach of which can lead to onerous criminal and civil consequences.

Even in litigation not involving public bodies, injunctions should only be threatened sparingly and then only in respect of precisely stated legal breaches or threatened breaches.

So what did Hackney Council believe to be the actual legal basis for its heavy-handed legal threats? Or would it admit it did not have one and that the threat should never have been made?


I thought I would ask Hackney Council these questions.


Question: On what legal basis was the injunction threatened?

Answer: That the publication of the voice recording was in breach of the Data Protection Act 1998.

The brief history of the matter is that a candidate in the elections who is a very experienced politician did not comply with the legal requirements for submitting an election address to be included in the Mayoral election booklet. The election address submitted was held invalid upon the advice of a leading QC in elections law.
As the candidate’s election address did not appear in the Mayoral booklet, a number of residents telephoned the Council to ask why that was the case. Staff at the Council’s Call Centre were properly advised by the Elections team to explain to callers that the candidate did not submit a valid election address and therefore his election address was not included. Nevertheless the Mayoral booklet did list the names of all the candidates standing in the elections.

We understand the candidate was informed by a few members of the public that they had been told by the Council’s Call Centre staff that he was not a candidate in the elections.

The candidate had the opportunity to direct his concerns about this to the Returning Officer. However he chose not to do so but instead called the Call Centre anonymously and asked why the candidate’s election address was not in the Mayoral booklet. The staff member who answered the call contacted the Elections team for guidance and was told it was because the candidate had not submitted a valid election address.

The staff member returned to the caller to convey that information. The caller then proceeded to ask whether that meant he was not a candidate in the Mayoral election. That was a technical question that the staff member could not answer. She hesitated but as the question was repeated several times, she gave the wrong answer and said he was not.

This was a junior member of staff and the Council regretted that she gave such an answer without seeking further guidance. We have publicly acknowledged and apologised for this mistake.

The conversation having been taped without the staff member’s knowledge by the caller was passed to Hackney Citizen who placed it on its website.

The Data Protection Act regulates the processing of the personal data of living individuals who can be identified from the data. We consider that the voice of our member of staff is personal data because the person could be identified from her voice by those known to her. The Council has at no point objected to the facts or the content of the conversation being reported in full. The objection was to the posting of the voice recording.

The Data Protection principles require that personal data be processed fairly by every data controller who processes the personal data. The data controller must give the data subject notice of the processing of the personal data and must process it fairly. In this case, our member of staff was not given any notice and the publication and disclosure of the recording was made without the individual’s knowledge or being given the opportunity to object which can reasonably be regarded as unfair.

Whilst Section 32 of the Act provides that a data controller may be exempt from the principles where he reasonably believes the publication of the material is in the public’s interest, we do not regard the breach of the Data Protection Act to be justifiable under Section 32. This view has been endorsed by external legal advisers who are experts in this area of law. The contents of the tape can easily be reported to the public without playing the actual voice of the person. The Council would have no objection to this nor would we argue that it was not in the public interest. That is not the issue in this matter.


[Note, this answer does not actually explain what the Council thinks entitles it to an injunction as a remedy in this case. The data protection point is incorrect. The voice recording is not personal data. A breach of the Data Protection Act does not not by itself give rise to the right to obtain an injunction against a third party - remember the threatening letter states only that Mr Boff is in some breach, not the newspaper. And the Council does not explain why any of this is not set out in their threatening letter, where it should have been, rather than set out in an email to a blogger - me.]


Question: Will Hackney Council disclose the legal advice and the instructions to the legal department?

Answer: External legal advice was sought from the Media Law Partner of a leading firm of solicitors. That advice is covered by legal advice privilege so we are unable to disclose it.

[I would so love to know which Media Law Partner that was.]


Question: Would Hackney Council have any objection to my Jack of Kent blog (not The Lawyer) hosting the audio files?

Answer: As the Council has stated, it has no objection whatsoever to the publication of a report about the incident and the contents of the conversation between the Council staff and the caller. The objection raised was to the publication of the voice recording of our junior member of staff, who has been extremely distressed about having her voice published in this way.


Question: Why has the Council still not applied for an injunction?

Answer: The Council engaged with the Hackney Citizen on behalf of a very junior member of staff who was extremely distressed by the publication of her voice. The Council has apologised for the mistake this member of staff made and at no stage have we objected to the facts or the content of the conversation being reported in full. The objection was to the posting of the voice recording. The Council feels it would serve no further purpose to continue our dialogue with the Hackney Citizen on this matter. The case is closed from the Council's point of view.

[This is very significant. Not only are the Council wrongly shifting the blame onto a junior employee, which is deeply inappropriate; it is also stating the "case is closed from the Council's point of view" - however, this was complete news to the Hackney Citizen which still believes it was facing the threat of legal proceedings. To threaten a misconceived and baseless injunction application is one thing; to not bother to tell the potential defendant that the case has been dropped is quite another.]


Question: Does the Council yet accept that it does not have, and never had, any legal basis for threatening an injunction?

Answer: The legal basis is that the publication of the voice recording was in breach of the Data Protection Act 1998. Expert legal advice obtained endorsed this view.

[Again, this is missing the point. The question is what entitled the Council to threaten an injunction. They clearly have not got a clue.]


The answers of Hackney Council to this first round of questions were not promising.

The answers suggested to me the following: the Council had not actually thought through its threat of an injunction; that the "data protection" points were subsequent attempts to rationalise a threat which had been made with out any legal basis, else such points would have been mentioned in the threatening letter; and that the Council's dropping of the threat was now being done as haplessly as the threat of the injunction had been made in the first place.

It all seemed rather gormless.


So I asked some further questions; indeed, far more pointed and serious questions.

Exactly where in the Data Protection Act is there the legal power for Hackney Council to obtain an injunction against the Hackney Citizen? Please provide the relevant section of the Act for this particular remedy.

Why is the audio recording been treated as personal data? What is the legal test being relied upon? Or is it just being asserted that it is?

When did Hackney Council refer this matter to the Information Commissioner?

Do Hackney Council now accept the letter threatening such an injunction should not on this occasion have been sent? Or would Hackney Council again send a similarly worded letter in similar circumstances?

In general, is Hackney Council resorting to litigation threats too readily? Is Hackney Council actually "out of control" in respect of its threats of litigation?


I waited keenly for the answers to these searching questions; indeed, I waited an entire working day.

And then, at the very end of that working day, I received my response.

Hackney Council was going to refuse to answer these further questions:

The Council engaged with the Hackney Citizen on behalf of a very junior member of staff who was extremely distressed by the publication of her voice. The Council has apologised for the mistake this member of staff made and at no stage have we objected to the facts or the content of the conversation being reported in full. The objection was to the posting of the voice recording. The Council feels it would serve no further purpose to continue our dialogue with the Hackney Citizen on this matter. The case is closed from the Council's point of view.


Really?

I thought I would double-check, just to make sure.

After all, I was raising some fairly serious questions and allegations.

The sort of questions and allegations any public authority acting properly would address as an absolute priority.

Was Hackney Council really refusing to answer these difficult questions?

Their further response was brief:

The case is closed from the Council's point of view.

Of course, there is one obvious reason why the Council did not wish to answer these further questions.

It realised it could not do so without it becoming even clearer that its conduct in this matter had been improper.


So where does this leave us?

Hackney Council threatened an injunction against a local newspaper without stating the legal basis for an injunction. It then drops the threat in an answer to a blogger's query without even telling the newspaper.

It then comes up with a preposterous data protection point which it cannot even begin to justify when probed.


In my view, and on the basis of the information I have set out above and available to me, there is something deeply worrying about Hackney Council's threat of an injunction against a newspaper properly reporting on the Council's wrongful conduct.

It is not right for any public authority to threaten an injunction against a newspaper in these circumstances.

Hackney Council has acted illiberally and improperly in this matter.


In my opinion, in respect of both the threat and in its failure to properly explain the legal basis of its threat, Hackney Council's conduct here is a disgrace.


COMMENTS MODERATION

No purely anonymous comments will be published; always use a name for ease of reference by other commenters.

35 comments:

Alice said...

Perhaps I'm flippant, but I had the most terrific fun reading this! Thank you Jack! :-D

Chutzpah84 said...

I'm slightly confused, as the audio is still available on the Hackney Citizen website. So they didn't achieve their one main aim (taking the audio down), don't feel the need for an injunction and as far as they are concerned the case is closed?

If so, then they must have simply sent a threatening letter with no legal basis in the hope that it would produce a desired effect. That is completely unacceptable behaviour from a public body. I expect it from private car parking firms, but not a council.

Did you consider publishing the audio yourself (as you asked) to see if you received the same treatment?

Pat said...

I've always been might confused by the DPA and what counts as personal data. Could you explain why the audio recording is not personal data?

(a legible guide to determining what is/isn't personal data would be a post I'd be very interested in, incidentally)

Edgar said...

Hackney Council: http://bp0.blogger.com/_sgLjzLV7st4/SFkdRa6A2xI/AAAAAAAAAOo/8pUZh9J5haQ/s1600-h/tantrum1.jpg

Great exposé! Well done & thanks for an amusing if depressing read.

Dr. Brian Blod said...

For Pat:

http://www.ico.gov.uk/upload/documents/library/data_protection/practical_application/the_guide_to_data_protection.pdf

I am not a lawyer, but for the life of me I cannot see how a recording of this nature constitutes 'data' about the junior employee. 'Data' is about who a person is - his name, address, telephone number, salary, National Insurance no. and so on.

I think some lawyer has encouraged Hackney Council to 'push the envelope' here.

If the Council really has backed down I am tempted to think the threat was hollow in the first place.

I look forward to the next stage which I suspect will be initiated by Andrew Boff supported by suitably briefed and rational legal advice.

Having read the article in the Hackney Citizen about the original dispute about the content of Boff's election address (http://www.hackneycitizen.co.uk/2010/04/12/hackney-council-rejects-mayoral-candidates-election-address/) I should think there is a good chance that Hackney Council are about to get into a lot of hot water.

Artemis said...

I find this astonishing, thank you for challenging my naive security in our democracy.

kris said...
This comment has been removed by the author.
Richard Gadsden said...

My understanding of electoral law is that there is a specific criminal offence of falsely stating that a candidate has withdrawn from an election.

I would be interested in your commentary on whether that offence has been committed, and if so who by.

kris said...
This comment has been removed by the author.
Keith Magnum said...

Curious that the Council has told you that "it has no objection whatsoever to the publication of a report about the incident and the contents of the conversation between the Council staff and the caller."

This is simply not true. The Council objected to the contents of the conversation being published in its letter to us of 10/05/10, requesting that we remove any transcripts. The Council said: "Would you therefore please remove the recordings and any transcripts of the calls".

William Satire (Jr.) said...

I thought it was illegal to record phone calls without consent. Regardless of the councils wrongdoings, it is not clear to me if Andrew Boff broke the law.

Nick Gordon said...

Many thanks, once again. When I were a lad, I was brought up in Hackney, and it were a proper council in them days. I'm appalled by what it's turned into.

This is clearly a cock-up by some idiotic jobsworth which they're trying to gloss over, but they need to realise that they can't get away with it.

@Pat - the recording isn't personal data because the individual can't be identified. I stand to be shot down, but, put simply, the DPA says:

- Personal data is data by which an individual can be identified
- Organisations may collect personal data but:
- The person must know that the data is being collected, what data is being collected and for what purpose it is to be used
- Once collected, the data can only be used for its stated purpose
- The person has the right to see what data is being held, and to have corrected any errors in the data
- The organisation must keep the data secure

There's a good summary at Wikipedia

The Boff/Citizen argument is that the recording isn't covered (a) because the person can't be identified and (b) because it's a recording of a council official in the performance of his/her official role - i.e. the conversation is with the Council, not with the person as such.

Hope I haven't got that badly wrong

Simon said...

Not a point of law, but I consider it discourteous and bad form to secretly record people on the phone without their consent. This kind of thing seems to be considered acceptable behaviour among many people. Has anyone stopped to think of the embarrassment caused to the employee, having this conversation made public? She may not be identifiable to the public, but I'm sure council workers know who she is. This is the sort of thing people get reprimands for, even if they've done nothing wrong.

Benjamin Gray said...

Given that they claim to have only instructed "leading QCs" and senior partners, one wonders how much they paid in fees.

I'm also slightly confused why they feel they can't themselves disclose the advice: on my reading a client is free to waive legal privilege.

Though given the seniority-dropping, one wonders if they are being truthful?

Elephant said...

The answer on the legal advice they received is rather disingenuous too.

Legal privilege belongs to whoever seeks the advice, not the lawyer. Hackney Council is perfectly entitled to publish it if it wants to.

It shouldn't be forced to do so, but to say that it is "unable" to describe the advice is untrue. It just doesn't want to.

kris said...
This comment has been removed by the author.
clanwilliam said...

While I'm not keen on the whole "recording people without consent" issue, this was someone seeking vital information before an election, who already knew that voters were being mislead. I think it was justifiable anyway.

As someone who lives in Hackney, I received the election pamphlet, and was rather pleased to do so as it seemed a sensible way of making sure all the information was available to everyone.

My reaction - and I showed it to everyone because I was so disgusted with what I thought had happened - was that the Conservatives couldn't be bothered to fight the election in Hackney. (Ditto the Christian party, which actually surprised me more.)

I only began to find out the real story after the election.

So yeah, not only was Mr Boff not included in the pamphlet although his name was listed as a candidate, but his absence led voters to certain conclusions about the Conservative party in Hackney, which could well have influenced votes.

Doubly annoying as 2005's candidate for MP had worked very hard, including doing door-to-doors a few months before the campaign - a pretty thankless job on a council estate in the south end of the borough - and it had impressed me very much that he was doing his best in a no-hope seat. (Even if I had to break the news to him that the LDs had sorted out my issues a couple of months earlier!)

Adam said...

This is outrageous. I hope someone is going to be taking this to the Local Government Ombudsman.

In fact I hope someone is going to be taking it further than that, because it's unlikely the LGO (almost entirely staffed by ex-council executives and genetically programmed always to take the council's side in any complaints) will do anything, although I'm not sure exactly where it could be taken.

Amy said...

RE: the recroding of the phone call.

I don't know if the law for journalists is different, but in the bumper book of jounalism law in my house, it states that it's perfectly legal to record a conversation without notifying the other party, so long as you are one of the participants in the conversation.

So phone tapping is illegal, but this case of recording however did not break the law.

Whether you think it was polite or not is by the by - the council seem to be deliberately misinforming the public, and refusing to make ammends. What else was he to do?

Marjorie said...

William Satire & Simon:

It is not illegal to record a call solely for your own use, even if you don't inform the other perosn of your intention.

However, recording it to disclose to a third party (including a court) should only be done if the other person has been informed of it.

My understanding is that to do so is a tort rather than a criminal offence, but I may be wrong.

Dr. Brian Blood said...

@Simon

In the ordinary course of events, I would agree with you.

But, where someone is performing a public service, in this case giving out advice or information that the general public have a right to know, which has not been 'customised' to meet a private need, and where there is a reasonable suspicion that that information is 'false', then I cannot see how this could be proved without a recording.

I am surprised that Hackney Council did not accept immediately that their employee's inability to provide 'correct' information reflected entirely upon them.

The Hackney Citizen explained:

Mr Boff said, “The council call centre staff member went to talk to the election office staff to get advice and at the end confirmed that I am not standing".

If this report is correct then I cannot see how any blame can be attached to the member of the call centre staff involved.

The culpability lies wholly with Hackney Council for a failure in the training and management of its own staff.

Andrew said...

The Data Protection Act is a bit of a legal smoke-and-mirrors. They could just as irrelevantly have alleged a breach of the Human Rights Act.

Presumably any alleged illegality relates to the sharing of intercepted communications with third parties, which is governed by the Regulation of Investigatory Powers Act.

Andrew Boff said...

Can I emphasise that the member of staff performed her duties with a good deal of care. Hackney now feel it is OK for her to be blamed for what was their error, which is disgraceful but thoroughly in character for Hackney.
As an aside, Hackney keep saying they apologised. To whom? I've no record of an apology to me or anyone else who rang in and was given the duff information.

Steve Jones said...

"Has anyone stopped to think of the embarrassment caused to the employee"

There's a very easy answer to this. If the employee involved is blameless and is acting under orders or incorrect instructions then she should not receive a reprimand. If the employee herself were to blame for what is a serious breach of public duty, then a reprimand would be appropriate.

You seem to be more favourable to the interests of the employee than what is a serious breach of public responsibility by the council. The quality of our democracy is dependent on the impartiality of public authorities in electoral matters, and this was not the case here, and Hackney council are clearly engaged in a ham-fisted cover-up.

The public interest is not served by opaque processes whereby public bodies can decide what should and should not be in the public domain based on what suits them. When acting for a public body, employees are not engaged in a private activity, and where there is clear evidence of misconduct by the council , there is a clear public interest. Indeed I would suggest that the events around this should be subject to a proper, transparent enquiry with the results made public. If that involves naming people who have been grossly negligent in performing their public duties, then so be it.

As others have pointed out, the DPA does not apply here as there simply is no personal information involved and, to add to that, the individual in question has to be identifiable. In any event, it is highly unlikely that the fact that an individual works for a public authority would be considered personal information at all. Any rights to privacy are also likely to be inapplicable in performance of a public duty in this sort of case.

Robert Morgan said...

The funny thing is, the council's only strong argument in all this is that Boff unfairly forced a junior phone operator to answer a tricksy technical question carrying 'hidden' legal importance, which she clearly wasn't informed enough to answer.

But to know that, to hear the hesitation and slight hectoring, you have to listen to the actual audio recording. So why on earth would the idiots want that taken down?

Simon said...

@Steve Jones
You seem to be more favourable to the interests of the employee than what is a serious breach of public responsibility by the council.

Damn right I am. Why should the employee be humiliated for the alleged shortcomings of her employer? A transcription of the conversation would have sufficed in the newspaper, and would have protected the employee. The fact that Boff chose to provide the recording to the newspaper is the sort of thing one should expect from a politician I suppose. I'm surprised people are so ready to defend it, when this particular action adds little to the case against the Council, while potentially hurting an innocent (presumably) employee.

Simon said...

@Andrew Boff
Can I emphasise that the member of staff performed her duties with a good deal of care. Hackney now feel it is OK for her to be blamed for what was their error, which is disgraceful but thoroughly in character for Hackney.

How magnanimous of you Andrew. I'm sure she feels a lot better about her job now. If HC blamed her for their mistakes, then you also bear some responsibility, as they wouldn't have been able to identify her without your recording. Was a recording so much more important than a transcript that you were willing to risk exposing an innocent party in this way? Do you make a habit of recording your conversations with people?

SadButMadLad said...

Can't the council legal bod, or the person who asked for such "advice" be sued for misfeasance in a public office. Alternatively if the council aren't pursuing with their case then hasn't the newspaper got a chance to sue in return for the hassle and the implied allegation that they acted illegaly in publishing the recording.

The council shouldn't be allowed to get away with it. They should take their responsibility's properly.

Dr. Brian Blood said...

@Simon

I must be rather dim.

So far as I can tell nobody has attempted to humiliate the employee at the Hackney Call Centre.

Indeed, if you actually listen to the tape, the employee is clearly trying her best to help the caller.

To assit the caller she first tries to ring the electoral office but no one is answering.

She offers to run down to the office (by now I am begining to hate Tchaikovsky - fortunately we switch to Grieg - oh no! back to Tchaikovsky).

Finally, the employee returns and tells the caller that because the Conservative candidate had not submitted valid paperwork on time there is no Conservative candidate.

The whole call has taken almost 10 minutes.

The caller is polite throughout, and the call appears cordial throughout.

There is certainly no hectoring.

Maybe you have been listening to a different recording?

Steve Jones said...

@Simon

May I suggest that it is the council which are apparently persecuting the woman in question, and that your support of the suppression of evidence which is clearly in the public interest is misplaced.

You should be directing your criticism at the council. It seems to me that if they attack a blameless employees over something like this, they would also do so for all sorts of arbitrary reasons of their own about which we wouldn't know.

In any event, even if the recording had not been made available, and a formal complaint had been made and published, what on earth makes you think that this same employee would not have been identified? The council will have records of when calls were received, how long they lasted and it would not have taken long to identify who dealt with the call.
Are you suggesting that even the transcript shouldn't be made available (as Hackney council demanded)? If so, then it makes public accountability virtually impossible, but this is the line you seem to be heading us down.

If the recording and transcript were not made available then we might never know of such persecution. Now, at least, if there is unfair disciplinary action taken there is plenty of evidence for the defense. Your way of hiding all this from public record is just an invitation for public malpractice.

HildegardP said...

Very decent of JoK to do the legwork & get this lackwittery stopped but in the Citizen's place, I'd have been tempted to get the ball rolling with an, "I refer you to the answer given in Arkell & Pressdram" letter. Just for the hell of it.

Who in the name of horsehair wigs gets to advise public bodies? The DPA is *not* a complicated bit of legislation - a lot of hard drafting work went into making it clear & the guidance available from the Commissioner's office is generally excellent.

The public interest exemption was put in there for precisely such situations as this. It is in the public interest for the voters of Hackney, or anywhere else, to know that their elections are run according to election law & without recourse to dubious or illegal tactics. Where questionable behaviour is found, it is the duty of the Press to investigate & publicise such behaviour. Council officials are not in posession of carte-blanche.

How do counsel for bodies like Hackney or Humberside Police keep on getting it so incomprehensibly wrong? Or are such bodies only playing on the ancient prejudice against lawyers & pretending to have been advised when in fact they're simply making it up as they go?

I love the way they try to face JoK down with an irrelevant dérive through S:32. They're not short on front, I'll give 'em that.

As to accusations of discourtesy or defences of the "junior employee", I have to say that those seem wholly misplaced concerns. Playing fast & loose with the democratic process is a far greater discourtesy & has a potentially deleterious impact on both civil society & indeed all of us, junior & senior alike, as individual members of said society. To suggest that the recording ought not to have been made or reproduced in case Hackney violate employment law as well - a reprimand "even if they've done nothing wrong" - is surely no more than a defence of abuse.

JuliaM said...

"Did you consider publishing the audio yourself (as you asked) to see if you received the same treatment?"

They'd have to be stupid beyond belief to try a bluff that's been called (and called pretty thoroughly) on the very person who called that bluff, wouldn't they?

It does make you wonder, though, what else they've got away with because people have seen the distinctive warning colours of a legal coral snake, not realise it's defensive mimicry, and they are in receipt of a harmless legal milk snake instead...

Spence said...

Appears to be a typo in the square brackets reply to the response to Hackney Council's first question - two "not"'s where there should be one.

On the behaviour of the council: absolutely disgraceful. Definitely should be formal complaints about this, hopefully both by Mr Boff and the Hackney Citizen. Might also be interesting to fire off an FOI request to find out a bit more about the original advice and how much it cost the taxpayer...

DaveB said...

On the issue of legal privilege and FOIA, they may be able to invoke the legal privilege exemption (s. 42) to withhold the advice subject to a public interest test which could succeed, but they cannot use it or any others to provide information on the identity of the law firm used, how much they paid for the advice etc.

Nick said...

I don't agree with the claim that a voice recording is not personal data. It is data if information which is recorded, as this is, and many people can be identified by their voice.

Equally, I can't see the problem in Hackney complaining to the Citizen rather than Boff, because the Citizen is clearly processing the data.

But here, the processing clearly appears lawful under either s.32 or para. 6 of Schedule 2 (processing is lawful if necessary for the pursuit of legitimate interests of the data controller/a third party, and no prejudice to rights etc of the data subject).