Rotherham Council committed 'clear and prolonged' FoI breach linked to CSE booklet controversy

In early 2015, the council ordered 1,500 copies of a report called Voices of Despair, Voices of Hope, in the wake of the town’s abuse scandal, but deciding six months later it would not distribute them as previously planned.

Judge Mark O’Connor ruled that the council had committed an offence in failing to comply with a 2019 order of the First-tier Tribunal (General Regulatory Chamber), which deals with appeals against decisions made by Government regulatory agencies including the Information Commissioner’s Office (ICO).

The ICO had backed the council’s refusal to release details of email exchanges about the matter in 2018.

But the tribunal ruled the following year that the decision was incorrect and most information should now be released.

Earlier this year, the booklet’s co-author Liam Harron, inset, applied for the higher-tier Upper Tribunal to hear a contempt of court application against the council on the grounds they had failed to comply with that decision notice and another related case.

The judge ruled the council had been wrong not to provide Mr Harron with a document of “written questions and answers” taken by Ian Thomas, the-then director of children and young people’s services, to a meeting about the issue in August 2016.

Judge O’Connor has now referred the case to a hearing of the Upper Tribunal which will determine whether the council has committed contempt of court and what punishment, if any, is required.

He said: “If these proceedings were proceedings before a court having power to commit for contempt, the failure by RMBC to comply with the Tribunal’s substituted Decision Notice issued in EA/2018/0090 would constitute contempt of court.”

A date for the Upper Tribunal hearing is yet to be set.

The ruling is part of a long-running legal battle between the council and retired headteacher Liam Harron, who in late 2014 and early 2015 worked with colleague Chrissy Meleady to compile the personal stories of CSE victims and survivors from the town.

Their work followed the August 2014 publication of the Jay report, which had found there had been at least 1,400 victims of CSE in the town over a 16-year period with major failures by social services and the police to take action against grooming gangs.

The accounts were compiled into a 44-page booklet called Voices of Despair, Voices of Hope, and in March 2015 Rotherham Council ordered 1,500 copies of the report for distribution.

But in September 2015, the pair were informed by senior Rotherham Council officer David McWilliams that beyond the couple of boxes which had already been distributed, no further copies would be given out citing negative “expert” feedback which had been received about the booklet.

Mr Harron initially submitted an FoI request the following day for “all communications” at the council about the report in an attempt to understand the “baffling and distressing” decision.

In July and August 2016, he attended meetings with council officials about the issue and in February 2017 made a further FoI request asking for “all of the email exchanges and any other written information” about his request for an internal review and specifically cited emails between four council staff including Ian Thomas, who was then director of children and young people’s services.

The council refused the request on the grounds of legal professional privilege - a decision which was backed up by the Information Commissioner’s Office in March 2018.

However, the First-tier Tribunal ruled in May 2019 that exemption did not apply to most of the requested information and said details should be released by the council within 20 working days.

In June 2019, the council sent Mr Harron a redacted copy of email exchanges covering 133 pages.

But Mr Harron requested an internal review of the information over the potential omission of documents attached to the emails and specifically “written questions and answers” relating to the meeting he had with council officials in August 2016.

The council replied in August 2019 that “there was no further information to provide”.

Mr Harron lodged his contempt of court application in January 2021 over the failure to provide email attachments. In February, he submitted a fresh FoI to the council which they accepted and provided the attachments.

Judge O’Connor ruled that the “questions and answers which Ian Thomas took to the meeting on August 12, 2016” should have been provided to Mr Harron in 2019 following the Tribunal’s decision.

He said: “I conclude that RMBC breached the terms of the substituted Decision Notice by failing to provide the applicant with a copy of the document referred to above within 20 working days of receipt of the notice.

“Civil contempt does not require an intention to interfere with the administration of justice, it is enough that the alleged contemnor was aware of the order, that the terms of the order bound the contemnor and that the contemnor disobeyed those terms.

“I have taken account of the circumstances of the case as a whole. This includes, but is not limited to, the fact that my finding as to breach relates only to one document and that this document has now been produced to the applicant.

“The applicant specifically raised issue with the failure to provide a copy of the document incorporating the “questions and answers which Ian Thomas took to the meeting on 12 August 2016” in his request for an internal review over two years ago, and that it was not until March 2021 that the document

was eventually provided, and even then not as a consequence of the Tribunal’s order but rather in response to a subsequent FOIA request.

“I am prepared to accept that RMBC did not act wilfully in breaching the Tribunal’s Notice, this being despite the striking absence of witness evidence from RMBC.

“The Tribunal has an interest in ensuring that there is compliance with its orders.

“Punishment of those who do not comply with its orders clearly furthers that interest. Were the Upper Tribunal also to conclude that RMBC had acted in contempt, the nature of any punishment would be entirely a matter for that Tribunal.

"However, even a public finding that RMBC breached the Tribunal’s order, and imposition of no further punishment, would further the public interest in the administration of justice and is likely to cause others to be more diligent in their response to Decisions of this Tribunal.”

He added: “In all the circumstances, given the clear and prolonged nature of the breach, and despite such breach not being wilful and having accepted that the relevant document has now been provided, I conclude that it is appropriate in furtherance of the public interest described above to exercise my discretion to certify a contempt to the Upper Tribunal.”

Mr Harron said: “Over the years I have heard senior councillors at RMBC talk about the importance of scrutiny. My personal experience, over almost six years, has been that RMBC councillors and officers have done everything possible to avoid rigorous scrutiny.”

A spokesperson for Rotherham Council said: “We are still part of a legal process and cannot comment on something that hasn’t yet concluded.”

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