LBWF’s top law officer Mark Hynes blocks a question about asbestos in the Town Hall for six months, and then gets an almighty rocket from the Information Commissioner

During the early 2020s, I spent a good deal of time researching LBWF health and safety matters, especially those which followed on from its 2015 court conviction for exposing staff and contractors to deadly asbestos dust in the Town Hall basement.

Amongst other things, I discovered a worrying incident that had occurred in 2020.

In early January of that year, contractors were drilling in the Town Hall basement, when dust suddenly started spiralling up into the floors above, setting off the fire alarms.

Given the recent history, staff understandingly worried that the dust might contain asbestos particles; an anonymous complaint was made to the Health and Safety Executive (HSE); and on 13 January 2020 at 12.52 the HSE e-mailed a formal letter to LBWF outlining what it had been told. 

Then, on 14 January at 08.56, that is less than 24 hours after the HSE letter arrived, the LBWF Head of Health and Safety e-mailed the HSE with this assurance:

‘The [LBWF] Health and Safety Team investigation has not identified any asbestos issues, as the basement was fully stripped of Asbestos [sic] several years ago. However, as an additional precaution…further R&D work is part of this project, and there is an F10 [HSE notification] in place’.

Subsequently, when an HSE inspector visited the Town Hall on 15 January, he/she made no reference to asbestos, and shortly afterwards shut the case down, hardly surprising, perhaps, given the prior correspondence (for more on this episode, see links).

Why, I wondered, had no-one said anything about all this in public?

My concern increased when, in July 2023, LBWF Monitoring Officer and Head of Governance and Law, Mark Hynes, published his long-awaited, and supposedly definitive, report about the management of asbestos in the Town Hall during the period 2015-20 (see links), because to my surprise the January 2020 events again went unmentioned.

Meanwhile, I had unearthed some documents which showed that the LBWF Head of Health and Safety’s assurance of 14 January 2020, as quoted above, did not accord with the evidence.

For it turned out that a specialist asbestos company had surveyed the Town Hall basement in September 2020 (i.e., nine months after the assurance had been given), and found that, far from the asbestos having been fully stripped out, there were still 83 high risk or medium risk locations where asbestos was to be found; much of this asbestos was amosite, or brown asbestos, generally considered to be the most lethal variant; and while the asbestos was often covered by a coat of paint, it was also in the form of  ‘debris’ on the floor, or ‘exposed’ on walls and ceilings.

Given these various revelations, I urged Mr. Hynes to investigate, and in late September 2023, he responded, first underlining that the HSE inspector had found nothing untoward, and then adding some thoughts of his own:

‘My recent report also made clear that there is still asbestos in the Town Hall notwithstanding that this factual position is inconsistent with the statement made by the former Head of FM that the Town Hall was fully stripped of asbestos. You are focusing on a sentence that was clumsily constructed in hindsight by the former Head of FM – I can only assume that what he meant to say was that the basement was fully stripped of asbestos that needed to be removed’.

I read this with some incredulity. Mr. Hynes’ ‘Head of FM’ was a mistake: the officer being referred to was in fact the LBWF Head of Health and Safety, and it was strange that Mr. Hynes didn’t know this, as it was clearly stated in the relevant LBWF-HSE correspondence of early January 2020 already referred to. 

Moreover, the first sentence of the assurance that the LBWF Head of Health and Safety had given to the HSE – ‘The [LBWF] Health and Safety Team investigation has not identified any asbestos issues, as the basement was fully stripped of Asbestos [sic] several years ago’ – was not clumsily constructed, and nor was it composed in hindsight, rather immediately after the first HSE contact.

Had Mr. Hynes actually ever seen the sentence, and the document it came from, or was he depending on the paraphrase which I had used in correspondence?

And as for his thoughts about what the LBWF Head of Health and Safety ‘meant to say’, they seemed to be a shot in the dark, with very little merit.

Notably, Mr. Hynes did not attach any supporting evidence for his claim, and even appeared to concede that he was being a little perverse (‘notwithstanding that this factual position is inconsistent with the statement made by the former Head of FM’), hardly surprising as, to repeat, very dangerous asbestos – ‘asbestos that needed to be removed’ – had not, at that point, been ‘fully’ stripped out.

Accordingly, in October 2023 I asked Mr. Hynes for the documents that he had consulted in formulating his reply to me, and he refused, citing the Freedom of Information Act (FOIA) Sections 1(1) and 14(1): 

‘I consider your FOI request to be a misuse and/or abuse of the FOIA as in my opinion your request is both vexatious and is intended to be annoying, disruptive or have a disproportionate impact on a public authority. 

Your request is therefore refused in accordance with Section 1(1) of the FOIA which does not oblige a public authority to comply with a request for information if the request is vexatious, and Section 14(1) which allows us to refuse you any requests which have the potential to cause a disproportionate or unjustified level of disruption, irritation or distress’.

Subsequently, I put the matter in the hands of the Information Commissioner’s Office (ICO), and it has just produced its adjudication.

On the substantive issue, the ICO has persuaded Mr. Hynes to finally answer the question that I had originally posed, and what he states is that the information which I sought was, and is, ‘not held’, and his comments to me about the ‘Head of FM’ and his assurance to the HSE were based solely on his ‘existing knowledge’.

In tandem, the ICO castigates LBWF in unusually forthright terms for the way that it had handled the whole saga, amongst other things finding that:

1. LBWF had ‘erroneously’ processed my request ‘under the Freedom of Information Act 2000 (FOIA) rather than the correct information access regime, the Environmental Information Regulations 2004 (EIR)’, though ‘in this case, it should have been clear from the nature of the information being requested (asbestos pollution) that the correct information access regime was the EIR’;

2. LBWF’s dismissal of my request as ‘vexatious’ was ‘neither reasonable nor appropriate’;

3. LBWF ‘could and should’ have ‘easily’ answered my request within 20 working days, rather than ‘waiting sixth months (and requiring intervention from the Commissioner) to do so’;

4. because of LBWF’s prevarication, ‘the Council and the Commissioner both had to expend significant time and resources on dealing with a matter that could have been resolved very quickly’;

5. LBWF sent me two e-mails which were misleading; and

6. ‘Taken together the above errors and shortcomings show that the Council failed to apply the proper and due care and attention to dealing with this request’.

Four observations follow.

First, Mr. Hynes admission that he had relied on ‘existing knowledge’ in answering my request for information, and had not looked at any documents, is hardly reassuring about how he goes about his work.

For since, as already noted, his own report about the management of asbestos in the Town Hall makes no mention of the incident that I had asked him about, it is unclear where his ‘existing knowledge’ had come from. After all, he is not (as far as is publicly known) a clairvoyant.

Second, the fact that a simple question about asbestos was only answered after ICO intervention reinforces the suspicion that on this issue LBWF is shifty, especially where its reputation may be at stake.

Third, Mr. Hynes more general stance also appears questionable. 

It is notable that he personally signed off every single piece of correspondence (letters and e-mails) that LBWF sent to me about this case, and also dealt directly with the ICO. 

Moreover, he cannot claim ignorance of his responsibilities, since throughout he was not only the head of LBWF’s information service, but also Monitoring Officer, responsible for ensuring that the council always respected the law.

So it would appear that he has a great deal of responsibility for everything that ensued.

Finally, given the ICO’s litany, the LBWF hierarchy, too, has some explaining to do. 

Were the Leader, Cllr. Grace Williams, and the Chief Executive, Ms. Linzi Roberts-Egan, aware of this case as it unfolded? Did they at any time give Mr. Hynes the green light to proceed with the obstruction that has been discussed? 

More specifically, do they now believe his behaviour to be consistent with the relevant yardsticks: the Nolan Principles (‘Selflessness, Integrity, Objectivity, Accountability, Openness, Honesty, Leadership’), and the LBWF officers’ code of conduct (which requires ‘courteous, efficient and impartial service delivery to all groups and individuals’)?

Above all, what will they do to ensure that this kind of calamity, with its shameful waste of public money, never happens again?