CaRT director under attack
CANAL & River Trust (CaRT) Legal Director and Secretary to the Board, Nigel Johnson, is under attack for failing to ensure that the Trust fulfils its obligations under Environment Information Regulations, writes Allan Richards.
This follows his failure to ensure the timely publication of Board papers ordered by the trustees.
Surplus to requirements
CaRT claims that the director is surplus to requirements and will not be replaced when he retires in 2014. Whilst he is officially known as Corporate Services Director and Secretary to the Board, CaRT refer to him simply as the 'legal director'.
An information request from Michael Price aimed at determining why the Trust has decided not to replace Nigel Johnson was made on the 8th February 2013. It asked 'Please could you help me with all the information as to why it has been decided that the post of Legal Director is no longer to be continued and how this will affect the Trust'.
Over seven months later CaRT still refuses to give him an answer.
Board papers
In his role as Secretary to the Board, one would imagine that one of Nigel Johnson's functions was to ensure that the wishes of the Board of Trustees were carried out unless they had been delegated elsewhere.
However, a complaint (Failure to publish minutes) that CaRT were failing to ensure that Board papers were being published in a timely manner and in accordance with the Trustees' wishes met with the response that 'no one person' was responsible for the admitted maladministration.
Whilst it was suggested that Nigel Johnson, in his capacity of Secretary to the Board should take responsibility for the maladministration, this was simply ignored.
Sadly, despite CaRT retrospectively publishing many papers, others remain unpublished. This, despite a formal complaint to the Waterways Ombudsman that CaRT was still not carrying out the wishes of its Trustees.
Formal complaint
Whilst Nigel Johnson may have managed to 'wriggle out' of his responsibilities for ensuring that the wishes of CaRT's trustees are being carried out, he now has a serious formal complaint on a similar issue to deal with.
The issue is his failure to admit that the Trust is subject to Environmental Information Regulations and to ensure that the Trust properly considers requests for information based on both the Freedom of Information Act and Environment Information Regulations.
Over the Trust's short lifetime, the public has made dozens of information requests, with over 140 via the information request website (whatdotheyknow.com) alone. However, CaRT has considered those requests under the Freedom of Information Act only, despite also being required to consider them under Environment Information Regulations.
Ensuring openness
Environment Information Regulations can, to some extent, be considered to be the forerunner of Freedom of Information Act which is somewhat wider in its applicability. Both are aimed at ensuring openness by encouraging proactive publication of information. Both have rules and guidelines that should be followed by subject authorities when responding to requests for information.
One of the differences between the two is that government can control if a body is subject to Freedom of Information Act and to what extent it is subject. However, this is not the case with Environment Information Regulations where it is a mater of law.
Subject to both
British Waterways was always subject to both Freedom of Information Act and Environment Information Regulations, but when it morphed into CaRT government made only certain of its functions subject to Freedom of Information Act and agreed with the Trust that it would act as being subject to Environment Information Regulations until such time as it could be determined if the regulations were applicable.
However, the matter has been considered by the regulatory body, the Information Commissioners' Office, with a detailed decision notice saying 'The Commissioner's decision is that the Canal & River Trust is subject to the Environment Information Regulations....'. [Our emphasis]. The commissioner has confirmed that CaRT did not appeal its decision.
Maintains not subject to regulations
Despite this, CaRT still maintains that it is not subject to Environment Information Regulations.
Here is a quote from a letter: 'Canal & River Trust is not a public authority for the purposes of the Environmental Information Regulations in that it does not come within any of the definitions of public authority in regulation 2 of those Regulations. Accordingly those Regulations do not apply to it'.
Oh yes it is!
.... and here a quote directly from a very recent response to a request which references the letter 'In fact there can be no "information" that is relevant to whether or not the Trust is subject to the Environment Information Regulations because it is simply a matter of law that the Trust is not subject to Environment Information Regulations'.
What about the decision notice then?
It appears some serious maladministration has occurred. Oh dear!
Complaint
It is perhaps little wonder that a complaint has been made to CaRT that its legal director, Nigel Johnson, has:
- Failed to ensure that requests for information made to Canal & River Trust are properly considered under Environment Information Regulations.
- Failed to ensure that the public are made aware that the Trust is obliged to consider requests under Environment Information Regulations.
- Publicly, made (or allowed an employee to make) a misleading statement regarding the applicability of Environment Information Regulations to the Trust.
A laughing stock
Nigel Johnson seems to be having a bad time since the Trust was formed. First he made it a laughing stock by threatening to sue a boater for 'unauthorised mockery' of CaRT's logo. Then he made it a laughing stock again by wasting £76,000 attempting to remove a boat from CaRT's waters.
The owner had sold the boat making the court order unenforceable and the money appears unrecoverable.
Then, of course, we have the double maladministration of failing to publish Board papers and saying that the Trust is not subject to Environment Information Regulations.
Perhaps Nigel Johnson could be persuaded to retire early.