Sellafield Whistleblower Case: Claimant faces a £20,000 legal bill for necessary Freedom of Information and Subject Access Requests

Alison McDermott: Whistleblower

By Philip Whiteley and David Hencke

A law firm in the Sellafield whistleblowing case has put in a bid for £20,000 costs against the claimant Alison McDermott, in part to deal with Freedom of Information requests – even though it emerged at the Tribunal hearing that the firm’s client had failed substantially to provide relevant evidence.

The costs application by Pinsent Masons on behalf of the Nuclear Decommissioning Authority, if successful, could set a precedent that weakens a citizen’s right to request information. It would appear to undermine the will of Parliament, given that when the Freedom of Information Act was passed MPs specifically rejected the idea of levying a fee for FoI requests.

The other law firm in the case, DLA Piper, simultaneously put in a bid for £20,000 costs against Ms McDermott – the maximum allowed without being subject to a further hearing – listing other factors, principally changes the claimant made in the detail of her case.

Sellafield site Pic credit:

At the three hearings in the case held so far there has been overwhelmingly strong evidence indicating that Ms McDermott’s FoI requests were both proportionate and necessary. She said: “The governing body [the NDA] in its ordinary disclosure, released one email. Then, when I put in direct subject access requests, many more emails proved that they had been asking questions about the termination of my contract. Then, at the hearing it emerged that Heather Roberts [former HR director at Sellafield] had withheld a key document that said that the NDA was very concerned about the timing of my termination and that conversations had been held. This information was never released.

“The Freedom of Information requests also revealed that contracts had been awarded for HR services, including EDI [equality, diversity and inclusion] services, for the value of £17 million. It was only after that that they [Sellafield] switched from financial reasons [for dismissal] to one of performance.”

Ms McDermott, an independent EDI consultant hired by the nuclear plant Sellafield, had her contract terminated the first working day after making a report detailing systemic discrimination and bullying at the plant, a pattern confirmed by a BBC investigation which reported earlier this year.

At the tribunal hearing in June-July 2021 her barrister, James Arnold, pointed to directly relevant evidence only coming to light shortly before the hearing – after a period of more than two years since litigation began. He was not contradicted by either Respondent (see our coverage on 30 June). This hampered Mr Arnold’s ability to call witnesses, and cross-examine them. Ms McDermott was not successful in linking the detriment she experienced to the reports she made, although she is appealing the ruling.

Law Firm Pinsent Masons claimed FOI requests were ” vexatious”

The law firm, Pinsent Mason, claimed that the requests for Freedom of Information and Subject Access Requests, were part of vexatious, abusive, disruptive and unreasonable behaviour by Alison McDermott against both Sellafield and the Nuclear Decommissioning Authority.

In a letter to the court the firm said she had “submitted four Data Subject Access Requests and six Freedom of Information Requests over the last three years, the majority of which were complex and involved significant work and additional legal time and cost by the Second Respondent [the NDA] to answer.”

It added it meant ”significant inhouse legal resource time and wider staff management time responding to data subject access requests and Freedom of Information Requests linked to the claim”.

Pinsent Mason said the NDA had spent £200,000 fighting the case and wanted £20,000 – the maximum it can claim at a tribunal – back.

Solicitors Regulation Authority takes no action against law firms

A critical response came from the Solicitors Regulation Authority who claimed that Ms McDermott had confused the difference between using all the information from Subject Access Requests with what was relevant to the case at the tribunal. The letter suggested that she should have highlighted more information from the requests if she thought the tribunal was not looking at the issue – citing the ruling from the judge.

The letter from the SRA making this point, dated 30 September 2021, cites from an earlier Tribunal ruling – following the strike-out hearing in July 2020. This was fully one year before the full hearing, where further directly relevant evidence came to light, as noted by Mr Arnold, including the correspondence in which the governing body admitted to nervousness about the timing of her dismissal.

DLA Piper wipes metadata and says it was a mistake

On another matter, as reported earlier, metadata was wiped from a piece of evidence in the case while in possession of DLA Piper, representing Sellafield, shielding information on authorship and time of creation of the document. The metadata was released to the claimant upon request.

The matter was referred to the Solicitors Regulation Authority, which decided in September to take no action. It accepted that this was a genuine mistake by DLA Piper, although its own investigation was inconclusive.

Pinsent Masons, for the Nuclear Decommissioning Authority, did not respond to a request for a statement or interview.

A spokesman for DLA Piper said: ‘As a matter of course, DLA Piper does not comment on client matters. We refute allegations of wrongdoing on the firm’s part. The employment tribunal’s decision is open to the public and we would refer you to this for details of the case and the outcome.’ The Solicitors Regulation Authority did not respond to a request for an interview or statement.

Too expensive to reveal: The 2000 Whitehall emails on Just Solutions International

The  secretive and expensive world of the miniistry of justice

The secretive and expensive world of the ministry of justice

Earlier this year this blog disclosed how the Ministry of Justice had  quietly set up a profit making subsidiary with the aim of marketing justice to obnoxious and corrupt regimes like Kazakhstan, Saudi Arabia and has now been revealed Macedonia.

This disclosure caused some embarrassment and a lot of anger that the United Kingdom government should be bidding to profit from advising countries like Saudi Arabia who lash bloggers and hold street beheadings which the UK forcibly condemn should the Islamic State do the same. The anger is most eloquently expressed on the blog of lawyer David Allen Green who runs a superb commentary on his Jack of Kent blog.

Naturally I thought it  would be in the public interest to find  out exactly how this rather shadowy body had been set up and what was the ministerial drive behind it.So what better device than the  current Freedom of Information Act to ask the ministry the questions. That was last January .

This was my request:” I would like to request details of all emails and communications between ministers and officials held by the Ministry of Justice and NOMS regarding the establishment of Just Solutions International  under the present coalition government.”

it took the ministry exactly 28 days( the maximum under the act)  to decide that such a request was so broad that they sent me a letter saying they would refuse to proceed with it at all unless I narrowed its scope. They could have told me the next day if it was the case.

So on February 25 I sent an amended request:

“What I would like to request  are documents and communications ( by email) between officials and ( if any) between officials and ministers which led to the creation of Just Solutions International. eg pertaining to  the reason why it was set up and. its role within noms and the ministry.”

It took until late April ( way beyond the 28 day period) to answer with a lovely letter dated xx April 2015 . And guess what evidently Whitehall has so much material debating the creation of Just Solutions International that it is too expensive to send it to me.

According to the letter it exceeds the £600 cost limit and would take civil servants more than three and a half days to find them all.

As their letter says; “In this instance to provide you with the information we would be required to locate emails, which we have estimated exceed 2000, since 2012 which detail the creation of Just Solutions international.”

They have suggested I could narrow down the request a again either to a short time period or by named official ( I don’t have the names of all the officials anyway). However in the spirit of kindly co-operation I have narrowed down the time limit to one year and see if this yields any results. I await the reply  with interest though they have not given me the courtesy of saying they received the request yet.

I suspect that the officials don’t really want to release anything – because the whole volume of correspondence – seems to suggest to me that they had a lot to discuss about why and how this  private profit making company was set up. But there is no reason yet to give up and all the more reason to probe exactly what is behind an initiative that believes making money from dodgy regimes is an ethical revenue earner for the taxpayer.

A damning indictment of the DPP and its failure to prosecute Cyril Smith

My  Exaro colleagues Nick Fielding and Tim Wood deserve a big commendation for doggedly pursuing the Crown prosecution Service to force them to release a damning report revealing how the authorities missed their opportunity to prosecute  paedophile MP Cyril Smith while he was alive.

After using the Freedom of Information Act the CPS has finally  a year later released a police report showing the Rochdale authorities knew what Sir Cyril was up to – but  the Director of Public Prosecutions declined to prosecute,.

The police superintendent in charge of the investigation in 1970 wrote;

“It seems impossible to excuse his conduct. Over a considerable period of time, whilst sheltering beneath a veneer of respectability, he has used his unique position to indulge in a sordid series of indecent episodes with young boys towards whom he had a special responsibility.”

No action was taken, and the paedophile MP was free to continue sexually and physically abusing boys for many more years. The full report is on the Exaro website.

One can only say if they had acted a lot of people would have been spared suffering such predatory sordid practices and could have gone on to have had fulfilling lives and enjoyed the innocence of the rest of their childhood. The authorities have a lot to answer.

Ed Lester to quit head of Student Loans Company

Ed Lester to quit on January 31; Pic cap courtesy of Daily Telegraph

Ed Lester, the civil servant whose tax affairs led Danny Alexander, Chief Secretary to the Treasury to order a  Whitehall wide inquiry, is to step down from the job next January.

The official who took over £182,000 a year in salary and pension without paying tax or national insurance at source is to leave when his current contract ends on January 31 next year. The SLC is already advertising for a successor.

Full details of the decision are in my piece on the website. Suffice to say since the story broke earlier this year Mr Lester has had to go straight onto the public pay roll and can no longer be paid through management consultants, Penna, to his own personal service company, Placepass, based at his home on an island on the Thames near Marlow.

His company is in the process of being closed down and now 2400 other civil servants and senior NHS executives  paid off pay roll may have to become direct employees by September. A review announced by Danny Alexander to Parliament will also mean that the following tax year people who hold controlling posts in private industry will no longer be able to do this either.

All these changes came from one well placed Freedom of Information request which exposed Mr Lester’s tax arrangements which had even been approved personally by Mr Alexander and  David Willetts, the universities minister. Mr Alexander has admitted to me he didn’t even realise the tax benefits when he approved the post.

 To his credit since then he has ordered the review and been shocked by the findings. But I am expecting a strong reaction from business when  it sinks in what has happened.

Update: In a statement issued today (Saturday) about his decision Ed Smith, chair of the Students Loans Company, said: “Ed Lester’s was appointed as interim CEO of  Student Loans Company in 2010. In that time he has turned the company around and his leadership has been outstanding. He is highly regarded by the Board, BIS and colleagues across the Higher Education sector. “Following the period as interim CEO, Ed was offered a fixed two year contract as substantive CEO from January 2011. This contract is due to expire in January 2013 and Ed has always made clear his intention to move to a new role at that time. As recruitment to such senior posts in public sector can be elongated, we have started the process to recruit Ed’s successor now to ensure they are in place prior to him leaving.

“Ed’s planned departure from Student Loans Company has always been a matter of public record. It is in no way linked to the tax arrangements in his contract agreed by BIS, HM Treasury, HM Revenue and Customs and the Head of the Civil Service.”

Lansley’s outrageous ban covering up risks in his NHS reform

Today the information commissioner publishes his findings to Parliament on the outrageous veto by Andrew Lansley in preventing publication of the NHS risk register.(see – report here )

The health secretary would have us believe that the public and the press are so naive that they must not be seduced in his words  by ” sensationalised reporting and debate ” of its findings.

In other words this is all right from Cabinet ministers and senior officials to read all the risky details  of his reforms – but the public must be treated like children, not capable of understanding the issues. What patronising piffle!

What I really suspect is that Mr Lansley does not want the public to read the full facts – something that when in opposition his Cabinet colleague, transport secretary,Justine Greening, rightly disagreed when it came to the risks of building a further runway at Heathrow.

But now in government it is of course all different, no one must know the real consequences of Mr Lansley’s decisions. I am delighted that Chris Graham, the Information Commissioner, stood firm on this one.

 But I suspect this decision is all part of an attempt by the government to row back on freedom of information. It fits in with Lord O’Donnell’s claim that if this goes on – it will have a chilling effect on discussion. The establishment both in the form of Jack Straw, Tony Blair and now Andrew Lansley, would love a world where we all lived in deference to ministers and senior civil servants.

No doubt charges for FOI will soon follow. Frankly if the government is planning to revert to a closed society, there is one simple solution. The risk register must be leaked.

Save FOI: Putting the case to MPs

 I am giving evidence to Mps on the House of Commons Justice Committee on Tuesday as part of their inquiry into the future of freedom of information. I shall be there alongside three  other journalists – Martin Rosenbaum from  BBC News, Doug Wills, from the Evening Standard, and David Higgerson, from Trinity Mirror Regionals. I shall be there on behalf of the National Union of Journalists, who have put a submission to the committee and as someone who regularly uses FOI for both my blog and for Eaxro News, the investigative news website.

We will be asked a wide range of questions on FOI. If any  journo or blogger has any point that they think should be raised about FOI you can put a comment upon this site. Please keep any comment short and succinct. I don’t promise to be able to raise everything but it would  be good to know of any burning issues which may have escaped me.

The hearing starts at 11.15am and will be broadcast live  on the internet and will also be saved for other broadcasts.

Barnet’s mad and bad plan to censor and criminalise the nation’s bloggers

Barnet Council: Attempt to criminalize blogger Pic courtesy:http;//

You couldn’t make this up. Barnet Council already facing trouble for illegally filming residents and bloggers coming to hear a council meeting on cuts, is now  seeking to censor and criminalize bloggers across the nation.

 The council has put in the most ludicrous complaint against a local blogger, Mr Mustard ( real name  Derek Dishman)  to the Information Commissioner claiming he has committed a criminal offence  under the Data Protection Act by not registering as a data controller  because he has made critical comments  about whether some of its officials have real jobs.

Using his right as a citizen he puts in regular FOI’requests to the council.  The row appears to have begun over critical comments questioning the council appointing a £50,000 change and innovation manager, Jonathan Tunde-Wright with  a remarkably verbose and tediously worded job description – for a job that seems to involve privatising everything. Phrases like ” delivery of  system thinking interventions” gives a  flavour ( see for full offending blog)

Now  Mr Tunde-Wright has his  personal website which contains his own creed for his work and  a commitment to “transparency and engagement “, ” community and accountability” and also a strong Christian belief :”  My quest to unravel the mystery of the cross of  Jesus Christ. That is a lifetime mission.” Nothing wrong with this ( Tim Montgomerie when at Conservative Home believed both in Jesus Christ and David Cameron). His website – with some interesting comments on council cuts following the recent BBC film is (

Now look at what Barnet Council did. On the day the Mr Mustard’s blog appeared they complained to the Information Commissioner seeking he had broken the law – and could face a £5000 fine- because he had ” processed personal data unfairly” and had no protection under the Data Protection Act.

 The council claims wrongly that ” the individuals involved do not refer to their employment with the council on their personal websites “( in fact Jonathan’s contains a link direct to Barnet Council) and ” views on the merits of their personal websites and blogs is not in the public interest.”

Initially rebuffed the council then came up with an extraordinary description of what Mr Dishman was allowed to blog without being forced to register or be prosecuted for unfairly processing data.

According to Barnet the only things bloggers can write about is their own personal data, their own family defined as people related by blood or marriage and their own household, anybody living in their house or flat.

Everything else requires registration and can be subject to legal challenge. The council even found an obscure Swedish case, involving a European Court judgement, against a member of the Swedish church  who released details of a number of local people waiting to be confirmed as why this must be done.

Luckily there has been an extremely robust response from the Information Commissioner.  They have dismissed Barnet’s second attempt with these words: ” If the ICO were to take the approach of requiring all individuals running a blog to notify as a data controller … it would lead to a situation where the ICO is expected to rule on what is acceptable for one individual to say about another.”

“Requiring all bloggers to register with this office and comply with the parts of the DPA exempted under Section 36 (of the Act) would, in our view, have a hugely disproportionate impact on freedom of expression.”

Thank God for some sanity. But what Barnet was really up to – to suppress freedom of expression, local comment  and intimidate someone who was using his right to ask them difficult Freedom of Information requests. By threatening to criminalize someone who in the ICO’s words writes a blog as a hobby, the authority is out-of-order.

If Barnet had succeeded it would have had enormous implications and costs for bloggers across the country. As Conservatives who are committed to transparency, the council should know better. They need to put up and shut up!

Barnet did not answer my questions about this. But I did contact both bloggers.

Mr Dishman said: “The likely response of the ICO if I needed to register would have been to invite me to register. I would have paid the £35 p.a. which is the only criteria to enable registration. If the council had succeeded in getting me fined £5,000 I would have paid it and then the blog would have become hyper critical and my work rate would have increased. What where they thinking? ”

He said he had no quarral with Jonathan Tunde-Wright or any of the officials named on his website.

Mr Tunde-Wright seems a bit bemused. “Speaking as a private individual it has felt like being caught in a crossfire somewhat.

” I think it is ironic that people like myself (and there are many of us in the public sector) who are truly passionate about public service and community empowerment appear to have been the targets of certain bloggers – talk of picking the wrong targets!

” I also do feel that by going beyond the Post to naming the Post Holder, referencing my personal blog and making particular comments, the said blogger may have crossed the line and placed myself and my family in this uncomfortable place of feeling harassed online.”

Barnet finally issued a statement to the Guardian today(tuesday):

“The council was concerned that an individual had used information gathered by the FOI process and linked this with other information to ridicule and abuse individual members of staff. The council consulted with the ICO as to whether this constituted a possible breach of the Data Protection Act.

 The ICO asked the council to make a formal submission, stating this was a currently a grey area.

It should be stressed that the individuals about which the council were concerned were not part of the council’s senior management team. The council does not tolerate the abuse or bullying of any of its staff.”

How Chilcot cheated the public: A tale of two Iraq inquiries

Chilcot " pact with the devil" picture courtesy Daily Telegraph

In all the  media hype, hubris and drama  which reached fever pitch with Tony Blair’s evidence to the Iraq inquiry, there is one big  group in this high profile event that has been cheated of getting access to the facts,  the British public.

While all the main witnesses  and the inquiry team under Sir John Chilcot have  unfettered access to the key classified information inside the 40,000 documents so far made available, the public is being rationed with limited fare released only with the agreement of the main Whitehall departments involved.

The situation has arisen because Sir John, foolishly in my view, has signed a protocol with the Cabinet Office which effectively gives Whitehall the last word on what documents the public are allowed to see. The document on the Cabinet Office website was signed I believe with honourable intentions  to give a framework, based on the government’s own interpretation of the freedom of information act, to which documents should be released.

 But in doing this Chilcot has given away his independence by allowing the Cabinet Secretariat the final say in any dispute between the inquiry and the foreign office, ministry of defence, attorney general’s department and the Cabinet Office itself over which documents can be released.

This pact with the devil is actually highlighted by an entirely different route  being taken by a  less publicised, official inquiry into Iraq running in tandem with Chilcot, the Baha Mousa inquiry taking place in a venue in the City of London.

This official inquiry set up by former defence secretery and Chilcot witness, Des Browne, is trying to get to the bottom of the savage death of Iraqi citizen, Baha Mousa, in Basra while in the custody of British troops. This inquiry is headed by Sir William Gage, a retired appeal judge.

Both inquiries are independent, official,and exempt from the freedom of information act. Both state that they are not trying to assign blame and are not putting their witnesses on trial. But there the similarity ends. Faced with same dilemma over documents, Sir William, has  taken two ground breaking decisions. He has waived his government exemption from FOI and said his inquiry will run as though it is subject to the Act, allowing the public to put in requests  for information that will answered in 20 working days. His website states: ” we will operate in as transparent and open a manner as possible in keeping with the interests of justice.” There is no such provision for the Chilcot inquiry.

Second, Sir William has made no pact with the devil. The protocol  he signed with the government gives him, not Whitehall, the final say in whether documents can be published.  I am told he has said if there is a dispute between his inquiry and the ministry of defence over the publication of documents, the MOD will have to go to court to stop him releasing the information.

So we have two very different approaches. One process is secret – as the Chilcot inquiry will not say what documents they  are in dispute over their release. The other process will become very public -because the ministry of defence will have to apply to the courts to keep documents out of the public domain.

There is also an extraordinary by-product of this decision. The Iraqi family of the dead  man are rightly  getting real  British justice  that is being seen to be done.

The families of dead soldiers who fought  for Queen and country in Iraq  and the general public are getting inferior treatment – no right to ask for information under FOI and allowing a cosy  secret Whitehall club to decide what they should be allowed to see.

 The only conclusion is that the independent judiciary are a  better champion of the public’s right to know than eminent senior civil servants.  Sir John is an  honourable man but he has sold the British public a pup in his subservience to  Whitehall.

This post is also on Comment is Free on the  website.