How much will Wirral Council have to pay B&M Retail Limited to settle an outstanding compensation claim?

                       

One of the new items added to Wirral Council’s Forward Plan (which will be decided by Wirral Council’s Cabinet in June) is The Wirral Borough Council (Grange Road, Birkenhead) Compulsory Purchase Order 2008 which relates to an outstanding compensation claim.

Although the Forward Plan doesn’t mention it, Cabinet will be asked to accept a recommendation from officers to settle a claim made by B&M Retail Limited arising from the The Wirral Borough Council (Grange Road, Birkenhead) Compulsory Purchase Order 2008.

B & M Retail Limited objected to Wirral Council’s use of compulsory purchase orders to build an Asda in Birkenhead Town Centre which resulted in a planning inquiry. The twenty-four page report of the Planning Inspector Christina Downes into Wirral Council’s use of their compulsory purchase order powers can be read by following that link.

Two of the people at Wirral Council named on the equality impact assessment for the recommendation to June’s Cabinet to settle the compensation claim of B&M Retail Limited will be familiar to those who have read the media coverage about the court case involving the tenants of Fernbank Farm back in January. They are EIA Lead Officer Tony Simpson (line manager for David Dickenson) and Chief Officer David Armstrong. Head of Section Jeannette Royle is also named on the Equality Impact Assessment.

How much the compensation claim of B&M Retail Limited is for is not known, however it is likely to be for a large amount. It is listed as a key decision on the Forward Plan, which means it is either for £500,000+ or is for ten percent or more of the agreed budget for this area. The Cabinet Member for this area is Councillor Adrian Jones (Cabinet Member for Central and Support Services).

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“Malicious editing” & “inaccurate, offensive or biased” in responses to new public meetings filming law

                            

Labour councillors at a public meeting of Wirral Council's Coordinating Committee vote to consult on closing Lyndale School (27th February 2014)

Labour councillors at a public meeting of Wirral Council’s Coordinating Committee vote to consult on closing Lyndale School (27th February 2014) (an example of the sort of public meeting covered by the new regulations)

Last week I detailed some of the responses to a consultation by the Department for Communities and Local Government on the Openness of Local Government Bodies Regulations 2014 (the law preventing local government bodies from stopping filming of their public meetings). There were a number of responses I didn’t mention which are summarised below (along with some comments of my own). For the whole response from each body you can follow the link to the Department of Communities and Local Government’s response to my Freedom of Information Act request on the whatdotheyknow.com website.

Association of Democratic Services Officers

The Association of Democratic Services Officers (ADSO) is a professional body that represents staff working in democratic services in local authorities covering staff that do councillor support and support the running of local authority committees. ADSO wrote that “In general ADSO welcomes the draft regulations which we feel are a positive step towards the openness and transparency of local authority meetings” and then went on to raise the following interesting question and point.

“1. The regulations contain provisions relating to providing reasonable facilities for recording decisions/proceedings – we understand that the Secretary of State has the power to direct what “reasonable facilities” means and it would be helpful to know if this is likely to happen – for instance will local authorities be expected to provide internet facilities for attendees?

2. There might be difficulties in establishing a common set of requirements – not to mention the cost and security implications if authorities are told they have to provide free public WiFi in meeting rooms and they do not already have the infrastructure in place.”

Wirral Council does already have wireless internet access at Wallasey Town Hall (which is where most of their meetings are held). However these are for use by councillors and officers, are password protected and members of the media would need to know the password in order to use them (or the requirement to enter a password would have to be removed from one of the wireless networks by a settings change).

If the password to this network was made available to the media it could be used for live broadcasting of meetings as they were filmed rather than the way I do it at the moment which is to compress the video clips overnight and upload them the next day. For those providing a live Twitter feed of public meetings on a mobile phone, I would guess that using a wireless network instead of sending it over a mobile phone provider’s network would use less battery. At least one journalist brings multiple mobile phones to Council meetings that last for hours to write on Twitter about the meeting. Using a wireless network would be less expensive on data charges. It will be interesting to know how “reasonable facilities” is interpreted.

Bracknell Forest Borough Council

The Borough Solicitor of Bracknell Forest Borough Council only wrote this about the filming issue “2. There should be provision in the regulations to allow Councils to establish procedures to ensure that the right to record or film meetings should not be exercised in such a way as to disrupt the conduct of the meeting.”

Devon and Somerset Fire and Rescue Authority

The clerk to the Devon and Somerset Fire and Rescue Authority wrote a three page response (also copied to Carolyn Downs of the Local Government Association). The response stated that the issue had been discussed at the Devon and Somerset Fire and Rescue Authority meeting of the 24th February 2012. Devon and Somerset Fire and Rescue Authority had what could be described as a lukewarm response with the clerk writing things like “While as a general principle the move towards greater transparency is to be welcomed, it is suggested that this needs to be tempered with what is reasonable and practicable”.

Devon and Somerset Fire and Rescue Authority referred to a hypothetical future public meeting “whereby a particular decision to be taken could generate significant media and public interest”. They went on to state “While endeavours might be taken to accommodate this as far as possible, there could come a point whereby it might not be possible to accommodate all who might wish to attend.”

Their point was that the existing legislation stated that public meetings “shall be open to the public” whereas the regulations modified that to “grant a carte blanche permission for any and all persons to attend meetings” which meant that whereas the existing legislation meant they felt that they could turn people away from public meetings on grounds of capacity or fire safety, once it was modified they didn’t feel they would be able to do this. As with many responses to the consultation they were against the idea of a right to live commentary as this would be “somewhat disruptive and not conducive to concentration or effective decision making”. This was also stated in their response “There is also a risk of inaccurate or misleading reporting taking place if commentary (orally or in writing) in made before the debate is concluded and any final decision made or vote taken.

Essex County Fire and Rescue Service

Essex County Fire and Rescue Service’s Head of Law and Corporate Administration responded to state “in my view that, save for the use of recording equipment in public meetings, the governance of decisions in the Essex Fire Authority and indeed its subordinated Service is carried out in a way not dissimilar to the provisions of the draft regulations and appears to be very open and transparent for the public to secure clear insight into the use and discharge of EFA powers.”

Greater London Authority

The Greater London Authority (GLA) and Greater London Authority Group were supportive of the principles behind the regulations and stated “At the outset, we wish to express our general support for the principles which the Draft Regulations seek to implement. The GLA has done a great deal to improve its transparency and public access to decision-making, of our own volition and in support of the Government’s wide transparency agenda for local government bodies. We recognise the benefits that this brings to our customers and stakeholders but also to ourselves.”

Hampshire Fire and Rescue Authority

The Chairman of Hampshire Fire and Rescue Authority responded by stating that Hampshire Fire and Rescue Authority “welcomes the opportunity for greater transparency and openness to local governance body meetings by allowing any persons to attend the meeting for the purposes of reporting.” and “A positive impact of the draft Regulations would be that members of the public would become better informed on the business of HFRA and as a result, the business of HFRA would be promoted to a wider audience.”

However their response wasn’t all positive as the Chairman also went on to state, “However, it is possible that persons may attempt or distort or edit the broadcast in some way to create a misleading impression.” and “HFRA considers the draft Regulations do not make any reference to ‘disturbances’ that could be caused at meetings by persons reporting and the impact that the disturbance could have on the meeting. HFRA recommends the ‘Plain English Guide’ to include guidance on disturbances and to the removal of a person from a meeting if their reporting renders the proceedings at the meeting impossible.”

Kent Fire and Rescue Service

The Chief Executive of Kent Fire and Rescue Service, Ann Millington gave the following response to the filming and social media issue:

“The Authority is committed to openness and transparency and has already drafted a policy on filming and the use of social media at its meetings. The Authority therefore has no objection in principle to giving the public a legal right to film or use social media for reporting on local authority meetings. However, the Authority does have serious concerns about some of the more detailed proposals contained in the draft regulations.

First, the Authority would question the need for the proposed amendment to section 100A(6)(c) of the Local Government Act 1972 requiring local authorities to provide “reasonable facilities” for members of the public to report meetings. This amendment is unnecessary given that the proposed new subsection 7A gives members of the public the right to attend meetings for the purposes of reporting. It is undesirable because it would put members of the public who wish to report on a meeting (or who just claim that they wish to do so) on a par with professional journalists representing newspapers. It is wrong to equate ‘citizen reporters’ with professional journalists because the latter are (as the Act itself says) “duly accredited” and work to professional standards. Local authorities have a reasonable expectation that professional journalists will report local authority meetings accurately and objectively. If these expectations are not met, then there are clear procedures by which local authorities (and others) can complain and have inaccuracies corrected. In contrast ‘citizen reporters’ can be as inaccurate, offensive or biased as they wish, and it is very difficult for local authorities to counter this.

In practice, the only ‘reasonable facilities’ that local authorities provide for professional journalists is reserved seating. There is a danger that giving ‘citizen journalists’ the same rights to ‘reasonable facilities’ as professional journalists would result in members of the public wishing to report on meetings, or claiming they wish to do so, demanding priority for the available seating over other members of the public. This could be very unfair where a meeting generates so much local interest that not all the members of the public wishing to attend can be accommodated.

The Authority’s second concern is that the draft regulations appear to give members of the public wishing to report on local authority meetings an absolute right to do so. However the regulations need to incorporate a provision that the public’s right to report is subject to any reasonable conditions which the local authority may feel appropriate. These conditions may include a requirement to advise the Chairman of the meeting before the meeting starts of any intention to film or record (so that the Chairman can advise all attendees, including other members of the public, of this) as well as a prohibition on covert filming or recording; and a requirement not to cause any disruption to the meeting. Although subsection (8) already covers ‘disorderly conduct or other misbehaviour’, it does not cover the sort of disruption that would be caused if a member of the public exercising their right to film (under subsection (10)(a)) chose to wander around the meeting room while doing so, or if a member of the public exercising their right to provide commentary on proceedings of a meeting orally (under subsection (10)(c)) did so loudly enough to interfere with the formal debate.”

Lawyers in Local Government (LLG)

Lawyers in Local Government (LLG) responded as follows on the filming issue, “There is a strong view that there needs to be a power for Council to allow subject to limits on what can be filmed – e.g. speaker notes, listeners notes, etc.? What about the recording of members not participating in the debate? Should there be a sanction for concealment? (There is a cadre of opinion that the Chair of a meeting should have the power to prevent councillors from tweeting/blogging during meetings as some chairs take the view that this is at best not participating as they should and at worst disrespectful to the meeting.)

Has there been consultation with NALC? The extension of the provisions to all parish council’s and parish meetings seems to be ‘over the top’ – perhaps it should be linked to the criteria for Quality Council status, the majority of parish councils (and effectively all parish meetings) simply not being resourced for the additional administration?

What is the Department’s view on what a Council could do if a recording were made and then published, particularly in an edited format which misrepresented what had actually happened at the meeting?”

Nottinghamshire County Council

The Corporate Director for Policy Planning and Corporate Services at Nottinghamshire County Council had this to write about the filming issue, “The County Council supports public access to meetings, and the right of the press and public to report and record them. However, the legislation should take account of practical implications; recording should not disrupt the smooth running of meetings, and authorities should be able to request reasonable notice, limit numbers and so on where appropriate.”

National Association of Local Councils

NALC (the National Association of Local Councils) represents around 9,000 parish councils in England. On the filming issue their policy and improvement officer wrote the following, “While NALC supports the objective of transparent and accountable local government, we are deeply concerned some key sections of the draft regulations will have a significant effect on the operation of parish councils, leading to an increase in red tape and bureaucracy and adding unnecessary new costs.”

NALC’s comments and recommendations on the filming issue were:

  • any person seeking to film or record a meeting of a local council be required to announce their intention to the council or council staff prior to the commencement of the meeting;
  • in the interests of openness and transparency, the names of any person(s) seeking to film or record a meeting of a council required to be recorded in the minutes of the meeting in question;
  • regulations should reflect the need for permission to be sought from members of the public to be filmed or recorded during the public participation element of the meeting;
  • where filming or recording does take place, any running verbal commentary by a person(s) should not disrupt the meeting, with the Chairman of the meeting able to ask the person(s) to stop any verbal commentary on the grounds of disruption, should disruption continue as a last resort be able to ask them to leave the meeting;
  • NALC consulted with their member councils and highlighted these issues from the responses that they received:

    “The majority of our councils are extremely concerned that the regulations which seek to amend the Public Bodies (Admission to Meetings) Act 1960 to allow a member of the public to film or record public meetings could be used to provide biased or inaccurate coverage of those meetings, to the detriment of the council or individual councillors.”

    “Councils clearly feel that the intention of the filming and recording regulations in particular would have a different effect on the local (parish and town) council tier rather than on the larger, and better resourced, local authorities.”

    “Clear guidance, drafted specifically for the local council sector, could alleviate many councils’ fears, particularly in relation to the expected resourcing of regulations relating to reporting delegated decisions and filming, as well as clearly articulating sector expectations.”

    NALC’s comments and concerns on the proposed regulations were set out in more detail in various sections (which you can read below).

    Regulations requiring parish and town councils to allow any persons including professional journalists to attend, film, audio record, take photographs or provide commentary on the proceedings at public meetings

    As noted above, this proposed regulation drew the most comment from our sector.

    Generally, parish councils are supportive of the Government’s intention and policy objective, but remain concerned that vexatious recordings could be made that create an inaccurate impression of council decision making and which are distributed to a large public audience.

    It was for this reason that a significant proportion of our councils are against the implementation of this regulation. Further detail is provided below.

  • Councils making their own recordings

Many councils have expressed a view this regulation would require them to record and upload their own web recordings, in order to ensure a true record of proceedings was maintained in video format (in addition to the minutes of the meeting). It was felt that this would be necessary to protect against any modified film or video recordings that could give a public misrepresentation of proceedings. Smaller councils in particular were concerned that they do not have the resources to make their own recordings with which to protect themselves from the consequences of this regulation. For example, Didcot Town Council (although a large local council) outlined the resources required:

‘[Council's] would need to provide audio-visual recording equipment in their meeting rooms to provide a corporate record of all meetings and this would need to be staffed and archived…. Media and legal training would need to be provided to councillors and staff which would take time and finance.’

  • Filming councillors

As the tier of Government closest to the community they represent, a number of parish councillors felt intimidated by the thought of being filmed and/or recorded in their capacity as councillors. They argued that the idea of being filmed surreptitiously was a significant deterrent to current and even potential parish councillors, thus serving to weaken rather than strengthen democracy. Great Baddow Parish Council wrote:

‘Finally, as we know, it is difficult enough already to get people to stand as parish councillors. It seems to be forgotten that they are unpaid public officials, volunteering their time, providing a community service. … Having what they say in council meetings … broadcast around the village, if not the world and possibly held to ridicule by the Daily Mail is not calculated to increase the number of people willing to become councillors. Or perhaps the younger generation, brought up on Facebook, will not care?’

  • Filming members of the public

The sector also expressed concern that members of the public might be deterred from participating in open discussion on contentious issues if they were aware they were being filmed. The Oxfordshire Association of Local Councils provided an example of the concern they heard from their members:

‘We accept constructive and responsible use of all forms of technology – blogging, tweeting, filming and recording. However, we recognise that some councils feel that allowing filming, in particular, could be intrusive and inhibit free speech, deterring people from speaking out on contentious issues such as planning applications. This is very relevant in small communities where members of the public, as well as councillors, may feel intimidated from expressing their views. It is accepted that councillors by standing for election to public office have, by default, acknowledged some degree of exposure but members of the public need some measure of reassurance that their views will not be misrepresented by malicious editing.’

  • Announcement of intention to film or record

In order to address this concern, a significant number of councils proposed that people intending to film or record a public council meeting make their intention known to council staff, who could then inform councillors and members of the public attending the meeting. It was felt that this would go some way to ensuring that the recording was not used maliciously and that it would not be disruptive to the conduct of council business. Some councils suggested that prior written consent should be obtained before filming or recording could take place.

The National Association, on behalf of our members, supports this amendment. We would like to see the regulation amended to require that any person seeking to film or record a meeting of a local council announce that intention to the council or council staff prior to the commencement of the meeting and have this intention recorded in the minutes of the meeting. This would allow councillors to raise this intention with any participating members of the public that are present and assuage ongoing concern around filming with malicious intent, without inhibiting the desire for transparent and participative local governance.

In addition, we recommend that the regulations should require permission from members of the public to be filmed or recorded be sought prior to the commencement of filming.”

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ICO decides soon whether my Freedom of Information request was vexatious or Wirral Council was just taking the mickey

                                
Last year I made a Freedom of Information Act request through the whatdotheyknow.com website for minutes of various panels, statutory committees, advisory committees and working parties. All the minutes were of groups that a councillor (or councillors) sit on, but weren’t public meetings and not routinely published by Wirral Council.

The request was made on 29th March 2013. By the 29th April 2013 I had not received a reply, so I requested an internal review. On the 30th April 2013 Wirral Council responded stating that the request would be refused on the basis of exemption 12 (exemption where cost of compliance exceeds appropriate limit) which to summarise is where a request would take longer than 18.5 hours of staff time to provide.

Wirral Council did state they would provide minutes of the Members Equipment Steering Group (they had action notes on these since the 17th July 2012) which deal with equipment for councillors to do their role such as laptops, iPads etc and minutes of the Safeguarding Reference Group. However now almost a year later they haven’t. The response also pointed out that there weren’t minutes taken of Independent Remuneration Panel meetings (which make recommendation on allowances for councillors) but that the Independent Remuneration Panel produced reports which had already been published on Wirral Council’s website.

On the same day I made it crystal clear that I just wanted minutes of the previous meetings of these groups, not all minutes of their meetings since these groups had been started (which is how Wirral Council had interpreted this request). The internal review response on the 30th July 2013 stated “The groups you mentioned are not all served by committee services nor are they groups on which the Council is the sole interested party; nor are they all groups which the Council chairs and an inquiry would have to be made to a significant number of persons and locations.” The internal review refused the request on the basis of a s.14 exemption (vexatious or repeated request). The internal review went on to state “It is clear that many of the panels you mention will be dealing with highly sensitive personal data in particular and without limitation no.s 1-4 inclusive, 8, 9, 11, 16, 23 and 26. Officer time in considering those considering the exemptions and redacting, consulting with third parties (for example the independent chairperson of the Adoption panel, representatives of other bodies on the committee) would in view of the Reviewing Officer mean that the request should have been refused under s.14. I was then at the stage (over four months after having made the request) of being at the stage where I could make an appeal to the Information Commissioner’s Office.

It is at this point that I will point to a number of already decided cases that have a bearing on how Wirral Council should have handled this request. The Chief Constable of Yorkshire Police v The Information Commissioner (EA/2009/0029) was a case involving a refusal on s.12 grounds (exemption where cost of compliance exceeds appropriate limit). In that case, which was an Information Tribunal case this was part of the decision “37. For all these reasons, we find a public authority cannot include the time cost of redaction when estimating its costs under regulation 4(3)(d).”

Regulation 4 of The Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 state that only the following four things can be taken into account when determining whether a request will take longer than 18.5 hours:

“the costs it reasonably expects to incur in relation to the request in

(a)determining whether it holds the information,
(b)locating the information, or a document which may contain the information,
(c)retrieving the information, or a document which may contain the information, and
(d)extracting the information from a document containing it.

In other words the activities that Wirral Council mention such as “officer time considering those exemptions and redacting” and “consulting with third parties” don’t fall within these four activities and don’t count towards the 18.5 hour limit.

Another case in the first-tier tribunal, Roger Conway v The Information Commissioner (EA/2011/0224) dealt with how the s.14 (vexatious or repeated requests) exemption can be used. The judgement in this case states at paragraph 17 (there’s a slight typographical error as 0 should read 10):

“17. In respect of paragraph 0 above, whether the request creates a “strain on resources”, that is not relevant to the question of whether it is vexatious. If the Council wished to argue that they ought not to be required to comply with the request on this basis, then it ought to have relied on section 12 FOIA. It did not do so. In any event, as discussed at paragraph 10 above, the Commissioner considered whether the request would create a significant burden (strain) on the Council and concluded that there was insufficient evidence to support this factor.”

In other words, Wirral Council’s arguments when they refused it as a vexatious request that it would create the sort of “strain on resources” referred to in Roger Conway v The Information Commissioner (EA/2011/0224) wasn’t relevant to the question of whether it’s vexatious and was the basis of Wirral Council’s argument that it was. Roger Conway v The Information Commissioner (EA/2011/0224) states that if a public authority wants to refuse such a Freedom of Information Act request then it should rely on a section 12 exemption (exemption where cost of compliance exceeds appropriate limit). However if Wirral Council has to rely on a s.12 exemption in this case then Regulation 4 of the The Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 and Chief Constable of Yorkshire Police v The Information Commissioner (EA/2009/0029) state that it can’t count activities such as “officer time considering those exemptions and redacting” and “consulting with third parties” towards the 18.5 hour limit.

So I appealed Wirral Council’s decision to the Information Commissioner’s Office. I received a response from the Information Commissioner’s Office last week that it had written to Wirral Council about this request twice, but had not yet received a reply. The Information Commissioner’s Office released the copies of the letters to me it has sent to Wirral Council and not received a reply to but with the Wirral Council officer’s name redacted. Interestingly the Information Commissioner’s Office have decided that some of the request falls under the Environmental Information Regulations 2004, which unlike the Freedom of Information Act 2000 have a presumption in favour of disclosure.

PROTECT

 

15th August 2013

 

Case Reference Number FS50509081

 

Dear [redacted council officer name],

Freedom of Information Act 2000 (‘the Act’)
Complaint from John Brace
Information request made 29 March 2013

The Information Commissioner has received a complaint about the handling of the above request.

We have carried out an initial assessment of this case and consider it eligible for formal consideration under s50 of the Act.

The case will be allocated to a case officer who will contact you with further details of the complaint.

We emphasise that although we have assessed the complaint as being eligible for the Information Commissioner to decide whether a public authority has dealt with a request for information in accordance with Part I of the Act, no specific decision has been made as to the individual merits of the complaint at this time.

What actions may be required at this stage

Where information has been withheld because you (the public authority) have applied one of the exemptions in Part 2 of the Act, the case officer will need to have a copy of the information to judge whether or not any exemptions have been properly applied. We would also appreciate, where you are able, for you to be specific about which exemptions apply to each part of the information. At this stage we only ask that you prepare this information: please do not send it to us until it is requested by the case officer.

Providing information to the ICO

Finally, you should be aware that the Information Commissioner often receives requests for copies of the letters we send and receive when dealing with casework. Not only are we obliged to deal with these in accordance with the access provisions of the Data Protection Act 1998 (DPA) and the Freedom of Information Act 2000 (FOIA), it is in the public interest that we are open, transparent and accountable for the work that we do.

However, whilst we want to disclose as much information as we reasonably can, there will be occasions where full disclosure would be wrong. It is also important that the disclosures we make do not undermine the confidence and trust in the Commissioner of those who correspond with him.

I would be grateful if, at the appropriate time, you would indicate whether any of the information you provide in connection with this matter is confidential, or for any other reason should not be disclosed to anyone who requests it. I should make clear that simply preferring that the information is withheld may not be enough to prevent disclosure. You should have a good reason why this information should not be disclosed to anyone else and explain this to us clearly and fully.

If you need to contact us about any aspect of this complaint please call our helpline on 0303 123 1113, or 01625 545745 if you would prefer not to call an ‘03’ number, being sure to quote the reference number at the top of this letter.

Yours sincerely,

Jenny Sanders
Sent on behalf of
Andrew White
Group Manager
Complaints Resolution
Information Commissioner’s Office

=======================================================================================================

PROTECT

 

10 February 2014

 

Case Reference Number FS50509081

 

Dear [redacted council officer name]

 

Please find attached a letter 1/3 – regarding a complaint by Mr John Brace to the ICO.

Yours sincerely

Daniel Perry
Case Officer – Complaints Resolution
Direct Dial: 01625 545 214

=======================================================================================================

[redacted council officer name]

Wirral Metropolitan Borough Council
Town Hall
Brighton Street
Wallasey
Merseyside
CH44 8ED

 

10 February 2014

 

Case reference number FS50509081

 

Dear [redacted council officer name]

 

Freedom of Information Act 2000 (FOIA)

Environmental Information Regulations 2004 (EIR)

Complainant: Mr John Brace

Your Ref: None given to complainant, but subject matter is listed as ‘Minutes of previous meetings of 26 panels

 

We wrote to you previously to let you know that we have accepted a complaint from Mr Brace (“the complainant”). The complaint concerns the refusal to comply with a request for information under section 14(1) of the Freedom of Information Act 2000 (“the FOIA”).

 

Having reviewed the nature of the complainant’s request for information, we will need to consider this case under the Environmental Information Regulations 2004 (“the EIR”), as well as the FOIA. The EIR provides the public with a right to information held by authorities that relates to the environment. The EIR apply in this case due to parts 20-22 of the request. Your obligations as a public authority are similar to those under the FOIA.

 

I can see that [redacted council officer name] contacted us on 16 August 2013 to ask for the CRM number, apologies that she did not receive a response. Cases are held in a queue until they are allocated to a case officer. From what I can see on the documents provided by Mr Brace (as detailed below) there is no CRM number. However the correspondence can be viewed at:

https://www.whatdotheyknow.com/request/minutes_of_various_panels_statut

 

 

ICO’s approach

 

On receipt of a complaint under the FOIA and EIR, the Information Commissioner (“the Commissioner”) will give a public authority one opportunity to justify its position to him before coming to a conclusion. Please consider the guide for public authorities on the Commissioner’s website for more information about how we handle complaints:

http://www.ico.gov.uk/for_organisations/freedom_of_information/guide.aspx

 

The request

 

On 29 March 2013 the complainant made the following request for information:

 

Please could you provide minutes of the previous meetings of the
following committees. If minutes whether in draft form or not are
not available of the previous meeting, please provide the minutes
of the meeting directly before. I have given each of the committees
a number in order which can be used in future communications to
avoid misunderstandings.

If minutes for any of these committees are not available in
electronic form and to provide them in digital form would exceed
the 18.5 hours rule then I am happy to collect paper copies from
Wallasey Town Hall instead.

1. Complaints Panel (School Curriculum and Related Matters)
2. Education Staff Panel
3. Headteacher Appointments Panel
4. School Appeals Panel
5. Standing Advisory Committee on Religious Education (SACRE)
6. Wirral Schools Forum (Funding Consultative Group)
7. School Admissions Forum
8. Adoption / Fostering Panels
9. Housing Review Panel
10. Unified Waiting List Management Advisory Board
11. Discharge from Guardianship by Wirral Council under the Mental
Health Act 1983 Panel
12. Independent Remuneration Panel
13. Youth and Play Service Advisory Committee
14. Corporate Parenting Group (formerly known as Virtual School
Governing Body)
15. Headteachers and Teachers JCC
16. SEN Advisory Committee
17. Wirral Schools’ Music Service Consultative Committee
18. Members’ Training Steering Group
19. Members’ Equipment Steering Group
20. Birkenhead Park Advisory Committee
21. Hilbre Island Nature Reserve Management Committee
22. Wirral Climate Change Group
23. Anti-Social Behaviour Partnership Body
24. Birkenhead Town Centre Consultative Group
25. Wirral Trade Centre Working Party
26. Safeguarding Reference Group

 

You responded on 30 April 2013 and refused the request under section 12.

 

The complainant then requested an internal review on 30 April 2013, which you provided on 30 July 2013. You revised your position and refused the request under section 14(1).

 

 

Scope of the case

 

The complainant contacted the Information Commissioner’s Office (“the ICO”) on 14 August 2013 to contest the council’s refusal.

The focus of my investigation will be to determine whether the council handled the request in accordance with the FOIA and EIR.

Specifically, I will look at whether the council is entitled to rely on section 14(1) of the FOIA and regulation 12(4)(b) as a basis for not providing a response to the request for information.

 

What you need to do now

 

Where possible the Commissioner prefers complaints to be resolved by informal means, and we ask both parties to be open to compromise. It is also your responsibility to satisfy the ICO that you have complied with the law. The ICO’s website has guidance which you should refer to in order to check whether your original response to the information request was appropriate.

 

This is your opportunity to finalise your position with the ICO. With this in mind, you should revisit the request. After looking at our guidance, and in light of the passage of time, you may decide to reverse or amend your position. If you do, please notify the complainant and me within the timeframe specified at the end of this letter. This may enable us to close this case informally without the need for a decision notice.

 

In any event, we need the following information from you to reach a decision.

 

Section 14(1) of the FOIA – Vexatious requests, and regulation 12(4)(b) of the EIR – manifestly unreasonable

 

In determining whether a request is vexatious, the ICO believes that the key question which public authorities need to consider is whether complying with the request is likely to cause a disproportionate or unjustified level of disruption, irritation or distress. Where this is not clear, public authorities should weigh the impact on the authority and balance this against the purpose and value of the request. Where relevant, public authorities will need to take into account wider factors such as the background and history of the request.

 

The ICO has published guidance on applying section 14(1) of FOIA which includes information on how to apply to this balancing exercise. Our approach to manifestly unreasonable requests under the EIR is very similar. You are strongly advised to review this guidance before responding to this letter.

 

As this guidance explains, when determining whether section 14(1) or regulation 12(4)(b) has been applied correctly the ICO will primarily look for evidence that the request would have an unjustified or disproportionate effect on the public authority.

 

Therefore, in light of this please explain why in the circumstances of this case the council relied on section 14(1) and regulation 12(4)(b) to refuse the request. Your response should include:

 

  • Details of the detrimental impact of complying with the request;
  • Why this impact would be unjustified or disproportionate in relation to the request itself and its inherent purpose or value;
  • And, if relevant, details of any wider context and history to the request if the council believes that this background supports its application of section 14(1) and regulation 12(4)(b). Please provide any relevant documentary evidence background evidence to support such a claim.

 

We strongly recommend that your response is guided by recent decision notices, our guidance and our lines to take, which demonstrate the Commissioner’s approach to the exemptions and procedural sections of the FOIA and EIR. These can be found on our website:

 

 

 

 

Having revisited the request, you may decide to apply a new exemption. We will consider new exemptions but it is your responsibility to tell the complainant why the new exemption applies and to provide us now with your full submissions.

 

For the avoidance of doubt, you should now do the following.

 

  • Consider whether to change your response to the information request, and let us know the outcome.
  • Send us your full and final arguments as to why you think section 14(1) and regulation 12(4)(b) applies.

 

To contact us

 

Please provide your response within 20 working days of the date of this letter, that is by 10 March 2014,ensuring that you fully set out your final position in relation to this request.

 

You can contact me at casework@ico.org.uk. Please ensure that you reply directly to this email address without changing any of the details in the subject box. This will ensure that the correspondence is allocated immediately to the correct case.

 

Yours sincerely

 

 

Daniel Perry

Case Officer – Complaints Resolution

Direct Dial: 01625 545 214

 

 

You should be aware that the Information Commissioner often receives requests for copies of the letters we send and receive when dealing with complaints. Please indicate whether any of the information you provide in connection with this matter is confidential, or for any other reason should not be disclosed to anyone who requests it. You should provide a good reason why this information should not be disclosed to anyone else and explain this to us clearly and fully.

 
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Posted by: John Brace | April 21, 2014

8 Members of the European Parliament to be elected


8 Members of the European Parliament to be elected

                          

Although I wrote a blog post about the notice of election for twenty-three Wirral Council councillors about a week ago I haven’t yet written about the notice of election for the eight Members of the European Parliament held on the same day.

Below is the notice of election for the European elections. The constituency for a MEP is the whole of the North West of England which is millions of people who could vote in the election. Also candidates wishing to stand in the European elections have to find a deposit of £5,000. I presume (as in General Elections) the deposit is refundable if those candidates get x% of the vote.

NORTH WEST ELECTORAL REGION

NOTICE IS HEREBY GIVEN THAT:

1. An election is to be held for EIGHT members of the European Parliament for the NORTH WEST Electoral Region.

2. If the election is contested the poll will take place on THURSDAY 22 MAY 2014.

3. Nomination papers are to be delivered to the Regional Returning Officer for the North West, Room 134, Town Hall, Manchester, between 10:00 AM and 4:00 PM from TUESDAY 15 APRIL 2014 to THURSDAY 17 APRIL 2014 and between 10:00 AM and 4:00 PM from TUESDAY 22 APRIL 2014 to THURSDAY 24 APRIL 2014. Forms of nomination papers may also be obtained at that place, during those times.

4. The deposit for each registered political party or individual candidate, being the sum of £5000, can only be made by the deposit of legal tender or by means of a banker’s draft (banks operating in the United Kingdom or Gibraltar only), at the place and during the time for delivery of nomination papers. No other method of making a deposit will be available.

5. Applications to be included in the register of electors or for postal or proxy voting must be made to the relevant Electoral Registration Officer for the applicant’s area. Further information can be found at www.aboutmyvote.co.uk or www.northwestvotes.gov.uk.

6. Applications to be included in the register of electors must reach the relevant Electoral Registration Officer by TUESDAY 6 MAY 2014, if they are to be effective for the election.

7. All applications and notices in respect of postal voting and those in respect of changes to existing proxy voting arrangements must reach the relevant Electoral Registration Officer by 5:00 PM on WEDNESDAY 7 MAY 2014, if they are to be effective for the election.

8. All new applications to vote by proxy (except those applied for on relevant emergency grounds) must reach the relevant Electoral Registration Officer by 5:00 PM on WEDNESDAY 14 MAY 2014, if they are to be effective for the election.

9. All applications to vote by proxy on relevant emergency grounds (disability occurring after 5:00 PM on WEDNESDAY 14 MAY 2014; grounds relating to applicant’s occupation, service or employment where the applicant became aware of those grounds after 5:00 PM on WEDNESDAY 14 MAY 2014; or detention under civil powers as a mental health patient) must reach the relevant Electoral Registration Officer by 5:00 PM on THURSDAY 22 MAY 2014, if they are to be effective for the election.

DATED: Monday 14 April 2014

Sir Howard Bernstein
Regional Returning Officer for the North West
Town Hall
Manchester
M60 2LA

Printed and Published by the REGIONAL RETURNING OFFICER, TOWN HALL, MANCHESTER, M60 2LA

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How much evidence does there have to be of wrongdoing at Wirral Council before an apology is given?

                            

In late May of 2011 Simon Holbrook wrote an email to Councillor Pat Williams (in her capacity as Birkenhead Liberal Democrat Chair) and Councillor Alan Brighouse (in his capacity as Birkenhead Liberal Democrat Secretary) to their Wirral Council email addresses. What that email said (despite having a court order for the email to be produced to me from Deputy District Judge Ireland granted in the Birkenhead County Court the next year) is unknown to me as it was never shared with me.

What I do know was that based on the contents of this email (that was never shared with me), Councillor Pat Williams and former Councillor Ann Bridson proposed and seconded my suspension from the Liberal Democrats at a meeting of the Birkenhead Liberal Democrat Constituency Executive based on its contents in early June 2011. The next day (4th June 2011) I made a subject access request exercising a right I have under s.7 of the Data Protection Act 1998 for “a copy of the complaint made against me by Simon Holbrook”.

The constitution of the Liberal Democrats stated (and still does) state

“7.9 When the grounds cited in the charge are those specified under Article 2.6 (a), (b) or (d), the Disciplinary Procedure may proceed as follows:

(iii) The original complaint, the charge, copies of any written statements obtained and details of the Disciplinary Meeting shall be provided to the person being complained against and to all members of the Disciplinary Meeting not later than four weeks before the date of that meeting. “

and

7.3 “If the procedure is not completed within that time, then the suspension shall automatically cease unless an extension of time is granted by the English Appeals Panel in accordance with its procedures. The person being complained against shall be notified of the suspension and the reasons for it.”

When it came to the disciplinary meeting fourteen weeks later in early September 2011, the original complaint had not been shared with me within the ten week time limit. The forty day limit to respond to my subject access request had passed. I’d written a further letter giving an extra fourteen days to share with me the original complaint otherwise I would sue, that too had passed.

By the date of the disciplinary meeting I was in the frankly ridiculous situation of having been suspended based on a complaint that had never been shared with me (and which I’d sued both the local party and the party nationally to get a copy of) and basically stated that because of this abuse of process the constitution said that because this mandatory requirement of the constitution hadn’t been followed that the suspension had therefore automatically expired and the disciplinary panel therefore didn’t have the power to reach a decision.

The disciplinary meeting made up of Roy Wood (who later stood against me as the candidate in Bidston & St. James the next year), Anna Blumenthal (the Birkenhead Liberal Democrat President at the time since deceased), Allan Brame, Cllr Mark Clayton and some member from Ellesmere Port I forget the name of didn’t see it that way and decided to punish me by deciding that I wouldn’t be allowed to be a Lib Dem candidate in any public election or hold office within the party for five years. This decision could then be appealed within a month to the English Appeals Panel (which I did).

However the English Appeals Panel told me they couldn’t accept the appeal as I didn’t have the original complaint made against me!

The next year in April 2012 (after an unsuccessful attempt in October 2012 by the Liberal Democrats to switch the two defendants in the case to a former Chief Executive of theirs called Chris Fox) there was a hearing in the Birkenhead County Court in front of Deputy District Judge Ireland. One of the two defendants was Councillor Alan Brighouse on behalf of the Liberal Democrats. Roy Wood also turned up to help him. There was nobody appearing for the other defendant which was Liberal Democrats (the Federal Party) on behalf of Liberal Democrats (that defendant was the Lib Dem headquarters down in London who had also ignored the subject access request).

Deputy District Judge Ireland agreed with me that s.7 of the Data Protection Act 1998 that Councillor Alan Brighouse on behalf of the Birkenhead Liberal Democrats and Liberal Democrats (the Federal Party) on behalf of the Liberal Democrats had failed to comply with my subject access request made the previous year in contravention of s.7 of the Data Protection Act 1998. She granted me a court order ordering the two defendants to comply with the request.

On May 25th 2012, after mentioning to Councillor Alan Brighouse at the local election count on the evening of May 3rd or early morning of May 4th Councillor Alan Brighouse wrote me a letter. A copy of his letter is below with a scan of the original handwritten letter.

31 Grosvenor Road

Oxton

May 25, 2012

Dear John,
Attached is a hard copy of Simon’s initial complaint against you.
As I told you at the election count, I was hoping to find the original e-mail to which it was attached.
I think you are aware that, subsequent to sending the complaint to Pat and myself, Simon modified it, leaving the two items that were eventually considered by the panel.

kind regards,
Alan

letter from Alan Brighouse to John Brace May 2012
Letter from Alan Brighouse to John Brace dated 25 May 2012

So what was Simon Holbrook’s original complaint? My comments are in italics and I link to the relevant documents mentioned.

Appendix – Case against John Brace

1. Smearing of Sitting Councillors

This allegation was withdrawn by him in advance of the disciplinary panel meeting.

In an email to Cllr Gilchrist dated 19 May 2011 at 09:59, John Brace did link the Standards investigation into Cllr Williams’ and Cllr Bridson’s part in the “special charging policy” with that of the recent investigation into the way in which Martin Morton had been treated, despite the fact that these are two totally separate matters.

Cllr Williams and Cllr Bridson are not and were not under investigation with respect to the independent investigation into the alleged bullying of Martin Morton. This investigation, which was instigated by former Cllr Holbrook has now concluded and reported. It never was and never had been a matter for the Standards Board of England.

My email to Cllr Gilchrist dated 19 May 2011 is rather long, however the three sentences referred to here are “Morale in the party is extremely low, the Chair and the Vice-Chair of the local party are currently (according to the Wirral Globe) under investigation on standards grounds following a decision by Wirral Council’s Independent Assessment Panel to refer the matter to Standards for England regarding their roles in the Social Services “special charging policy” and how Martin Morton was treated. This independent report (by now read by councillors but currently exempt) will be published within 2-5 months and will lead to a public discussion of their roles in this saga. Both are likely to be candidates in 2012 and the full reasons how and why they did things will have to be made clear to the public and party in the spirit of openness and accountability if we are to move on.

That email was sent to nine people, seven of whom were councillors. The Wirral Globe article referred to was Town hall blunder: Wrong paperwork sent to local government watchdog inquiry. The Chair of the local party at that time was Cllr Pat Williams and the Vice-Chair former Cllr Ann Bridson. The independent report I was referring to was the Anna Klonowski Associates report published in January 2012. My estimate of it being published between July and October of 2012 was a little optimistic. The key to the individuals mentioned in the Anna Klonowski Associates report shows that “Councillor 1″ is Councillor Pat Williams. The decision to commission Anna Klonowski Associates Limited to write her report into “an independent review of the Council’s response to the concerns raised by Mr Martin Morton under the Public Interest Disclosure Act (PIDA), in relation to the application of a Special Charging Policy for Adult Social Care service users at Supported Living Units in Wirral between 1997 and 2006″ was made solely by Councillor Jeff Green (the leader of the Conservative Group) when he was Leader of the Council in July 2010.

Simon Holbrook probably thought I was referring in my email to the heavily redacted Martin Smith report (of the North West Employers’ Organisation into “Mr Morton’s allegations of bullying, harassment and abuse of power by Council Officers”.

2. Disclosure of Confidential Information

John Brace did disclose on the Wirral Globe website blog, discussions that took place within the Birkenhead Executive Committee. Meetings of the Birkenhead Executive Lib Dems are internal party matters and therefore as such confidential to members of the Liberal Democrats and not for general publication.

These disclosures resulted in a senior Councillor from outside Birkenhead (Phil Gilchrist) being sufficiently concerned to raise the matter with the Constituency Chair (Cllr Williams).

The comments were made on this Wirral Globe article on the Wirral Globe website “Jubilant Labour leader invites Lib Dems to unite”, my comments were comments 5 (which it seems nobody had a problem with), comment 16 (referred to above), comment 17 (which nobody had a problem with), comment 22 (which nobody seemed to have a problem with) and comment 24 (which nobody had a problem with).

This was what Councillor Phil Gilchrist (before I was suspended) put in an email dated 19th May 2011 sent at 6:47 from philgilchrist@wirral.gov.uk to myself Cllr Pat Williams, Cllr Alan Brighouse, Alan Brame, Cllr Kelly, former Cllr Bridson, Roy Wood, Cllr Tom Harney and Cllr Dave Mitchell about it

“Dear John
Thank you for the detailed comments and background.
I had seen the matters referred to on the Globe website during my trawls for information, following the ‘initiative’ announced by Cllr Foulkes.
I mentioned my concerns to Pat as Chair of Birkenhead. It is not my place to comment on internal arrangements in Birkenhead.
My concern is and was that the detailed information supplied to The Globe covered ‘internal workings’ that were being made public. .
I have no information on the matters you referred to, just a desire that we avoid sending out information which has the potential to be used or misused by others.
I do see that you have mentioned taking on board the points raised .
I am grateful that you appreciate that comments can have an impact on the rest of work.
Phil Gilchrist

This was the only allegation upheld by the disciplinary panel. The disciplinary panel met on 6th September 2011 and in a report sent to me on 28th September 2011 said what is below on the matter.

Sanctions
“The panel felt that revocation of membership was too harsh a penalty for a single transgression on a little read “blog”, although it was made clear that Mr. Brace should not publish anything on behalf of the party in future unless properly authorised.

Under English Party Membership Rules 7.10(ii) – that John Brace be barred from any elected office in the party for a period of five years.

Under English Party Membership Rules 7.10(iii) – that John Brace be barred from seeking any elected public office for the party for a period of five years.

This was the unanimous view of the panel.

The Panel expressed their concern about the organisation of Wirral’s selection procedures and felt that the problems should be addressed and resolved.”

In summary then, the disciplinary panel report found that I had been right that candidate selection hadn’t been done according to the party’s constitution and therefore agreed with my version of events but chose to punish me for making it public.

3. Making False Allegations in Public

The matters disclosed in point 2 above questioned the eligibility of Simon Holbrook to have stood as the Lib Dem Candidate in Prenton at the recent local elections. John Brace also questioned the appropriate of Cllr Ann Bridson signing Simon Holbrook’s nomination papers. The allegation is that there was a denial of the democratic process to Birkenhead Party members.

The same blog also contains a statement insulting to all Wirral Lib Dem Councillors which said that when Simon Holbrook says “do something, unfortunately his councillors do it.”

This was withdrawn by Simon Holbrook prior to the disciplinary panel meeting. However as mentioned earlier the disciplinary panel report stated “The Panel expressed their concern about the organisation of Wirral’s selection procedures and felt that the problems should be addressed and resolved.” The second part is a partial quote. The whole quote is “However when Simon Says do something, unfortunately his councillors do it.” which was comment sixteen if you follow that link.

4. Making an Unsubstantiated Allegation of a Complaint

In an email to Cllr Pat Williams dated 19 May 2011 at 00:05, John Brace did allege that former Cllr Simon Holbrook had made a complaint about his conduct, when no such complaint had been made.

In the same email, he made reference to Simon Holbrook’s personal statement that he will not seek elected office in 2012 and concentrate on his professional career and seeks to link that with his own on website blogs with no factual justification.

This allegation was withdrawn by Simon Holbrook prior to the disciplinary meeting.

The email referred to stated “Although I have not been made aware of who is making this complaint, I suspect it is from the former constituency exec member and Prenton candidate Simon Holbrook as that was who my comment mainly related to.”

In other words I didn’t allege he had made a complaint about me I just stated that I suspected he had. At this point I hadn’t been made aware of who was making a complaint to Cllr Pat Williams, but as the complaint was about a comment I’d made about Simon Holbrook I suspected that he was the one who had made the complaint (which is ironic as within a fortnight he went onto make the long complaint that this blog post is about).

The other reference referred to in the email was this “Simon Holbrook (issued by a press release on the Lib Dem website) has stated he will not to stand as a candidate in 2012 and is to concentrate on his Environment Agency. I do not know whether this is connected with my comments made or not. That is his personal choice to make.”

The press release is still on the Wirral Lib Dem website and is copied below.

MEDIA RELEASE

Issued by: Simon Holbrook
Date of Issue: May 9th 2011

Statement by Simon Holbrook

“I would like to take this opportunity to thank the many people, council officers, political friends and foes alike, who I have worked with and who have helped me during my 12 years as a Wirral Councillor.

“I am proud to have served as Councillor for Prenton Ward, and thank the many local residents who have supported me and the Liberal Democrats during this time. I would particularly like to thank those people who have stuck with the Liberal Democrats as we have attempted to do difficult things in difficult times.

“For most of my time, Wirral has been a Council where political parties have had to work together to get things done. As Group Leader, I always sought to apply Liberal Democrat influence in the best interests of Wirral people. The past four years have been particularly challenging as a coalition partner to both the other Parties. I am particularly proud of the fact that, during the past 12 months, we have responded to the most difficult financial conditions ever put onto local government, without making the types of cuts made by other councils, protecting front line services and no compulsory redundancies.

“Whilst I shall remain active in politics locally, I now intend to concentrate on my professional career within the Environment Agency. I will therefore not be seeking election in 2012, but do hope to return to frontline politics at some point in the future.

“I pass on my sincere best wishes to all members of Wirral Council in the difficult task that I know still lies ahead of them.”

The most curious bit about part 4 of the complaint are the dates and the timing. Councillor Alan Brighouse deputised for Councillor Pat Williams at a public meeting of Wirral Council’s Children and Young People Overview and Scrutiny Committee on the evening of June 1st 2011. After this meeting finished, he told me in the car park of Wallasey Town Hall that Simon Holbrook had emailed him and Cllr Pat Williams with a compliant about me at some point in the days prior to June 1st 2011. The court order granted by Deputy District Judge Ireland in April 2012 was for this original complaint and email (which had to have been sent prior to June 1st 2011). However part 4 of Simon Holbrook’s complaint refers to something that didn’t happen until the evening of the 3rd June 2011 (which seems impossible). Simon Holbrook writes “In the same email, he made reference to Simon Holbrook’s personal statement that he will not seek elected office in 2012 and concentrate on his professional career and seeks to link that with his own on website blogs with no factual justification.” which is a clear reference to this blog post Birkenhead Liberal Democrat Party Constituency Executive Suspends John Brace and the quote which first appears on it when it was first published on the evening of 3rd June 2011 (it has later had a few revisions) which originally stated “Well, I’ve been suspended from the Liberal Democrat Party following a complaint by Simon Holbrook. I can’t say much more than that (obviously) as contrary to the complaints procedure I haven’t been provided with a copy of the complaint. Having written that, if he is concentrating on his career in the Environment Agency he’s showing a funny way of doing it!”

5. Seeking to Attend a Civic Function without an Invitation

That together with Leonora Brace, John Brace did seek to attend the celebration party following the Mayor Making ceremony despite not having received an invitation to the event. When challenged, John Brace did inappropriately attempt to claim that his possession of a ‘Press Card’ entitled him to attend this invitation only civic function.

Note: John and Leonora Brace did attend part 1 of the Annual Council meeting from the public gallery, which they are entitled to do so.

This allegation was withdrawn by Simon Holbrook prior to the disciplinary panel meeting. It’s untrue and probably so for a number of reasons which I will state here. Part 1 of the Annual Council meeting has been held every year prior to May 2011 for as long as anyone can remember in the Civic Hall at Wallasey Town Hall. There is a gallery above the Civic Hall but in the time period referred to by Simon Holbrook nobody was permitted to be in it as it was classed as “unsafe”. It’s only in more recent years when I’ve been filming the Annual Council meeting that I’ve been in the public gallery in the Civic Hall as Council employees insist I couldn’t film anywhere else as it was a “fire hazard”.

I will state a few things here that also will show that I wouldn’t want to attend a celebration party. I have a diagnosed special dietary requirement (a fact that is probably unknown to Simon Holbrook) called lactose intolerance. I have to follow a gluten-free and dairy free diet. Therefore anything that would be available to eat at a “celebration party” I wouldn’t be able to anyway. In fact I can categorically state that I’ve never gatecrashed a celebration party following part 1 of an Annual Council meeting.

However part 1 of the Annual Council meeting is a public meeting (as pointed out in the complaint), the public have a right in law to be there. I do remember one year someone (probably working for the Mayor’s office) asking me for my invitation on the way in to the Annual Council meeting in the Civic Hall and I pointed out to this person it was a public meeting, that I didn’t need an invitation and had a right in law to be there as it was a public meeting. I was then asked what I was planning to do at the end of the Annual Council meeting to which I answered I would be leaving (which I did). If memory serves me correct about what happened the same person came over to me again once the meeting had finished and people were leaving and asked us again if I were leaving (this happened near the stairs just outside the Round Room). I explained that as my wife has mobility problems I would be helping her down the stairs (she’s claustrophobic when it comes to lifts) and that I was waiting for a sufficient gap in the crowds of people who were milling around in order to do so safely as I was concerned that I didn’t want her to be jostled which would cause her to fall. Quite how this series of events morphed into Simon Holbrook’s spurious, fanciful and totally untrue allegation about what happened I’m not sure.

6. Giving a False Impression of Holding Public Office

In a separate blog John Brace did write -”Although in theory I hold the position of councillor, it’s not with Wirral Council and like the Mayoress of Wirral Mrs Jennings is unelected so am I, as like with the Mayoress it’s to do with who I’m married to.”

This remark appeared in a blog speculating about the future shape of the Council administration. Although its purpose is unclear, it does seek to give credibility to the comments through claiming an association with a public office.

This allegation was withdrawn by Simon Holbrook before the disciplinary panel meeting.

This is the blog post referred to written on 11th May 2011. The whole quote (in context) is

“It’s strange of Cllr. Foulkes and his Labour councillors to pursue a strategy of going after the Lib Dems for five weeks, then be all smiles and wanting our help after Labour have lost control in 2010 and are desperate to get a sniff of power. Admittedly all parties behave like this to varying degrees, the Conservatives saw this coming and have (thankfully) told the public some of the skeletons in the cupboard of the previous Labour administration.

What will happen? It’s up to the ten Wirral Lib Dem councillors to decide. Although some residents think I hold the position of councillor, I do not with Wirral Council. The Mayoress of Wirral Mrs. Jennings is unelected so am I, as like with the Mayoress it’s to do with who I’m married to.”

This was a reference to my wife holding a position on the Council of Elders which governs a reservation where she’s from in Canada. The quote used alleges I am a holder of public office, however if the comment is actually read it shows that although some people may think that, I did not. I am married to Leonora and that is the position she holds.

7. Did Make Allegations in his Blog of Irregularities in the Count

In a blog following the local elections, John Brace claimed that the votes had not been counted properly. He sought to compare the declared result with his own canvass returns to justify his claim that his own votes had not been counted properly. In the same blog, he inappropriately said that a large number of votes in Oxton changed hands on the recount.

This is the blog post referred to. The issues were (as explained in the blog post) to do with errors made at the count. Here’s what I put “No yellow 25s were initially handed out to counters. This was raised by myself as candidate as to why the Lib Dem votes weren’t being counted.”, “The counters soon ran out of 25s so 25s from different parties were used. This meant each candidates’ total was a mixture of colours and instead of using separate trays, one tray was used for Labour, the Conservative and UKIP votes were put in a second tray with the Lib Dem votes hidden from view behind a ballot box.” and “We only have to look at the Oxton recount to see how a large number of votes changed after being recounted.”

This is just a factual account of what happened at the count. The Deputy Returning Officer before he declared the result in Bidston & St. James agreed with me and took some votes off the Labour amount before the result was declared and added them to my total as a compromise as he didn’t want to have to do a recount. The result in Oxton (after a recount) was that Stuart Kelly got 1,918 votes and Matthew Patrick 1,792 (a majority of 126). However the original count of the Oxton votes put Stuart Kelly’s majority as much larger at around two hundred.

8. Making an Unjustified Complaint against a Lib Dem Councillor to the Standards Board of England

John Brace did report Cllr Ann Bridson to the Standards Board over the seating arrangements for members of the public at a meeting of the Health Scrutiny Committee. The complaint was investigated at significant public expenses and was dismissed as unfounded.

The complaint had the potential to be damaging to the reputation of a party colleague, yet at no time did John Brace seek to discuss the matter about which he felt aggrieved with Cllr Bridson, or any other member of the Liberal Democrat Council Group.

Well this is what the disciplinary panel stated in their report “The panel found this not proved.”

Firstly, I have never made a complaint about Councillor Ann Bridson to the Standards Board for England. In fact the law at the time stated only Wirral Council could do that. I did discuss it with Cllr Bridson and Cllr Williams before making the complaint.

However I did make a complaint about former Cllr Bridson to Bill Norman (who was then Monitoring Officer at Wirral Council). This complaint was never referred to the Standards Board for England. The complaint about former Cllr Bridson that was referred to the Standards Board for England was the one made by Martin Morton about her and other councillors. The statement that I didn’t seek to discuss the matter with her before making the complaint is untrue.

From my signed witness statement “21. I did raise with the Chair after the meeting the issues about disability and her Committee had a specific responsibility for these. I did not want the events repeated again at this discussion she said that she was not prepared to listen to arguments from members of the public. 22. I was surprised and shocked by what she said.”

From my wife’s signed witness statement “17. After the meeting they had approached the Chair. She [Leonora Brace] became engaged in conversation with a Councillor close by, while her husband was speaking to the Chair [Ann Bridson] and I did not hear the full conversation. She could hear well enough to know that attitude of the Chair [Ann Bridson] was not good. She [Ann Bridson] was shouting in a loud voice and she [Leonora Brace] heard her [Ann Bridson] say this is “not the time nor the place” for speaking. 18. In Mrs Brace’s creed there is great emphasis put on the need to be polite. The Chair was not being polite.

From Ann Bridson’s signed witness statement “24. John Brace may have approached me at the end of a meeting in the last 7 months, and I may have suggested his enquiry/comment was inappropriate at that time. However really I cannot recall.” and “31. On another issue relating to the course of this complaint and regarding the Liberal Democrat Party, John Brace had emailed the Chair of the Liberal Democrats [Birkenhead] Constituency Committee [Cllr Pat Williams] that he had made a complaint about me under the Council’s standards procedures. The Chair of the [Birkenhead] Constituency Committee had sent that email out to all members of the Executive Committee and at the next meeting when this was made clear to me, I felt obliged to say in front of the Committee that it was not a complaint that related in any sense for example fiddling expenses or an income tax offence.”

The Deputy Monitoring Officer at the time Surjit Tour wrote the covering report about the complaint to the Standards Initial Assessment Panel meeting of 20th December 2010. The detailed report of the ethical standards officer Mr David Swallow was also submitted to the Standards Initial Assessment Panel.

I asked the Chief Executive of Wirral Council Graham Burgess at the public meeting of the Improvement Board in November 2013 a question about how this standards complaint had been handled. A record of the questions and answers of Wirral Council are published on Wirral Council’s website.

My question was:

8. A separate and unrelated complaint about one of the four Councillors referred to above (ref SfE 2010/02) was decided on the 20th December 2010. However the covering report sent to the panel which decided was incorrectly titled “Report of the Monitoring Officer – Case Reference 2010/03″. This report to the panel also omitted that the original complaint referred to an alleged breach of 6(a) of the Code of Conduct. As an apology was given for an administrative error to the complainant referred to in question 5, will an apology for this administrative error be given to the complainants of complaint reference SfE 2010/02 and the subject of the complaint?

The answer of Wirral Council is perhaps typical of what would be termed “spin”. Other people may comment that it goes further than that.

This is the answer “The administrative error was that the number 3 was put into the complaint reference instead of number 2. The complaint, relating to an alleged breach of the Code of Conduct was considered by the Standards Committee Initial Assessment Panel which concluded that no action should be taken as there was no evidence to support the allegations. The minor typographical error had no detrimental impact on the complainant as all of the content was correct and considered, and as the panel found no evidence of wrongdoing it would not be appropriate to issue an apology.”

Firstly it was allegations of breaches of the Code of Conduct not “an alleged breach of the Code of Conduct”. If I remember correctly about what was in the decision notice, the Standards Committee Initial Assessment Panel accepted the recommendations of the ethical standards officer David Swallow. The ethical standards officer stated in his report that the sections of the Code of Conduct alleged to have been broken were

“3. (1) You must treat others with respect.

5. You must not conduct yourself in a manner which could reasonably be regarded as bringing your office or Authority into disrepute.

6. You (a) must not use or attempt to use your position as a Member improperly to confer on or secure for yourself or any other person, an advantage or disadvantage”

However Surjit Tour’s covering report just mentioned the following two:

“5.1 The relevant parts of the Code in relation to this complaint are:

Paragraphs:

3. (1) You must treat others with respect.

5. You must not conduct yourself in a manner which could reasonably be regarded as bringing your office or authority into disrepute.”

The Standards Initial Assessment Panel accepted the three recommendations in the ethical standard officer’s report which were:

“10 My Recommendations are that
10.1 The finding that there has been no breach of the Code be accepted;
10.2 No further action be taken in respect of this matter and the case be closed
10.3 As to general issues maybe highlighted by this matter, some consideration be given to the issues raised in this Report as to the facilities made available to those with disabilities in attending meetings of the Committees – eg positioning of the water machine; reservation of seats for those with disabilities.”

The statement by the Chief Executive that “no action should be taken as there was no evidence to support the allegations” is therefore ludicrous as one of the recommendations (10.3) agreed by the Standards Initial Assessment Panel was that consideration should be given to the issues raised in this report.

At the public meeting of the Transformation and Resources Policy and Performance Committee last Monday Councillor Phil Gilchrist complained that he couldn’t hear what was going on because of the noise of the tea/coffee machine and asked for it to be turned off. So recommendation 10.3 was never actually put into action. The Chief Executive’s assertion that “all of the content was correct and considered” is untrue due to Surjit Tour’s admission. As to “no evidence of wrongdoing”, there’s plenty of evidence (see above) but when it comes to allegations of disability discrimination involving Wirral Council, well due to the culture no-one is ever found to be accountable however much evidence there is are they?

P.S. You may well say, well you can’t do this John, what about s. 63 of the Local Government Act 2000 which makes disclosure of the above in relations to a standards complaint a criminal offence? Well as regulation 5(d) of The Localism Act 2011 (Commencement No. 6 and Transitional, Savings and Transitory Provisions) Order 2012 meant that part 5, schedule 25 of the Localism Act 2011 had the force of law from the 1st July 2012. Part 5, schedule 25 of the Localism Act 2011 repeals sections 56A to 67 of the Local Government Act 2000.

This also means (despite the legal advice the Standards Committee has been given in the past) that there is no reason in law why previous reports about standards complaints about other Wirral Council councillors can’t be released to the public.

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39 ICO decision notices, 2 monitoring periods & a scrutiny review, is Wirral Council response to FOI requests better?

                                    

On Thursday I wrote about the Transformation and Resource’s Policy and Performance Committee’s Scrutiny Review on Freedom of Information.

Scrutiny reviews are not held in public. It could be argued that scrutiny review panels are subcommittees of their parent committee, therefore as a subcommittee they should meet in public. Although Wirral Council’s constitution states that citizens have the right to “participate in the Council’s question time and contribute to investigations by the Policy and Performance committees”, this scrutiny review was just officers and councillors meeting behind closed doors and there is no mention of anyone else being involved such as councillors actually talking to people who make Freedom of Information requests to Wirral Council.

Councillors seem to just be relying on information from Wirral Council employees (which then appears in their final report. The report mentions the monitoring action undertaken by the Information Commissioner’s Office between January and March of 2013 and July to September of the same year.

The way things are written in the report are a little misleading too, for example “The scrutiny review was conducted to ensure Wirral Council is moving in the right direction to manage Freedom of Information in compliance with the Information Commissioner’s Office.” Wirral Council have legal requirements to comply with the Freedom of Information legislation, whereas this sentence implies that Wirral Council just have to persuade the Information Commissioner’s Office that they’re improving and everything will be OK.

Recommendation one renames what used to be called the Freedom of Information departmental leads as “Freedom of Information Champions”. It also means that each champion will have a deputy and receive training and hopes this will be done by December 2014. Maybe the training is to try to speed up requests by the “Freedom of Information Champions” not having to ask Wirral Council’s legal department so much whether exemptions apply. However with so many exemptions and existing cases which determine the interpretation of how these exemptions should be applied (as well as guidance from the Information Commissioner’s Office as to how exemptions should be applied) I still think that “Freedom of Information Champions” will be asking Wirral Council’s legal department for advice in the future.

Recommendation two (Freedom of Information Champions access to the customer relationship management software) should also include their deputies too if it’s going to be effective. If a request is made to Streetscene by email then an automatic email is sent out allocating a case number. I really don’t understand why this couldn’t be the case with Freedom of Information requests made via email and why they have to be entered manually which leads into recommendation three. If this is already being done for Streetscene requests why does they need a “technical solution identified” and “proper business case developed”? I have no problem with Wirral Council using case management software for freedom of information requests as it would save staff time.

Recommendation four refers to Freedom of Information performance information supplied to the Chief Executive’s Strategy Group. Rather ironically Surjit Tour deems minutes of the Chief Executive’s Strategy Group to be exempt from Freedom of Information requests under s.36 (prejudice to the effective conduct of public affairs) yet the scrutiny review “identified specific improvements to the performance information presented to” “the Chief Executive’s Strategy Group”.

Recommendation five states that the percentage of Freedom of Information requests responded to within twenty days (broken down at department and directorate level too) should be included in the information going to the Chief Executive’s Strategy Group.

Recommendation six is interesting as it suggests “identifying emerging themes and trends” of all Freedom of Information requests received by Wirral Council and publishing this information as well as including it in the Council’s publication scheme. It refers to other bodies publishing Freedom of Information requests. Wirral Council could go further than this and publish (with the requester’s details removed) its responses to Freedom of Information requests. This forms part of recommendation seven (but only for commonly asked requests). Problems with the search function on Wirral Council’s website leading to Freedom of Information requests for information that is already published is referred to. Recommendation eight recommends that the search function should be improved.

This particular paragraph in the report (page eleven) states what was known already, that Wirral Council involves its press department over some Freedom of Information requests.

“The Panel was interested in how departments dealt with disclosing information that could be deemed sensitive or damaging. Officers explained that if any exemptions to information being disclosed were to be applied, as defined by the Freedom of Information Act, these could be made by departments. Advice from either the Information and Central Services Manager or the Head of Legal and Democratic Services is available if required. The Council has a legal duty to disclose information and reputational damage does not enter into the equation. There is a quality assurance process by Legal and Member Services and, where appropriate, Press and Public Relations.”

However the following areas of Freedom of Information requests are either only referred to briefly or not at all. The only reference to internal reviews is “The hours and respective costs for Legal Services also includes: The additional time and resources expended by solicitors dealing with internal reviews”. No mention is made over the fact that there have been freedom of information requests made to Wirral Council where the requester has submitted an internal review request and even years later has not received a response! Although the Information Commissioner’s Office suggests (if memory serves me correctly) a maximum time of forty days for internal reviews, there is no specific time limit for internal reviews specified in the legislation and in the past Wirral Council has taken full advantage of it by effectively ignoring internal review requests for requests it doesn’t wish to be answered or appealed to the Information Commissioner’s Office.

Once Wirral Council has completed an internal review, the requester can appeal to the Information Commissioner’s Office. The past four years have seen the Information Commissioner’s Office issue thirty nine decision notices about Freedom of Information requests made to Wirral Council. Most appeals are upheld. Here’s a brief summary of each decision notice.

Decision notice FS50141012 3/3/08 Wirral Council claimed a s.43 (commercial interests) exemption, then a s.22 (information intended for future publication) exemption. The Information Commissioner’s Office disagreed with both (complaint upheld).

Decision notice FS50234468 18/5/10 Wirral Council claimed a s.14 (vexatious) exemption. The Information Commissioner considered that Wirral Council should’ve considered the request under the Environmental Information Regulations and therefore breached Regulation 14(3) by not providing an adequate refusal notice.

Decision notice FER0262449 22/11/10 The Information Commissioner’s Office found Wirral Council had failed to comply with regulation 5(1), 5(2) and 6(1).

Decision notice FS50398901 21/11/11 Wirral Council claimed a s.12 (Exemption where cost of compliance exceeds appropriate limit) exemption. The information was later supplied to the requester after the Information Commissioner’s Office was involved. The Information Commissioner’s Office said that Wirral Council breached s. 10 by not supplying the information within twenty working days.

Decision notice FS50414910 15/11/11 Wirral Council failed to provide a response to a request within the required twenty working days. The Information Commissioner’s Office required Wirral Council to respond to the request.

Decision notice FS50414911 15/11/11 Once again Wirral Council failed to provide a response to a request within the required twenty working days. The Information Commissioner’s Office required Wirral Council to respond to the request.

Decision notice FS50414915 15/11/11 Wirral Council didn’t provide a response to a request within the required twenty working days. The Information Commissioner’s Office required Wirral Council to respond to the request.

Decision notice FS50414916 15/11/11 A response to a request was not provided by Wirral Council within the required twenty working days. The Information Commissioner’s Office required Wirral Council to respond to the request.

Decision notice FS50406724 15/2/12 Wirral Council claimed a s. 40 (personal information) exemption. The Information Commissioner’s Office disagreed that a s.40 exemption applied and required Wirral Council to provide the information to the requester.

Decision notice FER0422498 8/5/12 Wirral Council claimed they didn’t have to release the information because of exemptions under Regulations 12(4)(d) and 12(5)(b). The Information Commissioner’s Office agreed that this applied to some of the information, but decided that the public interest in disclosure outweighed the exemptions claimed under Regulations 12(4)(d) and 12(4)(e) and therefore required Wirral Council to release some of the information. Information Tribunal appeal EA/2012/0117 was allowed.

Decision notice FS50416628 13/8/12 The Information Commissioner’s Office ruled that Wirral Council had breached s.1(1)(a) of the Freedom of Information Act. It required Wirral Council to disclose the information and reminded Wirral Council of Greenwood v ICO (EA/2011/0131 & 0137).

Decision notice FS50428877 30/8/12 Wirral Council relied on a s.36(2)(b)(i) and s.36(2)(b)(ii) (prejudice to the effective conduct of public affairs) exemption. Once the Information Commissioner’s Office was involved Wirral Council also claimed an exemption under s.40 (personal information). The Information Commissioner’s Office agreed that some information would fall under a s.40 exemption, however disagreed that either a s.36 or s.40 exemption applied to the rest of the information. The Information Commissioner’s Office found that Wirral Council had breached 1(1)(a) and 10(1) of the Freedom of Information Act and required Wirral Council to supply the information it didn’t agree was covered by the s.40 exemption.

Decision notice FS50435531 16/8/12 The requester made various requests to Wirral Council to which it failed to respond to within twenty working days. The Information Commissioner’s Office required Wirral Council to respond to the requests.

Decision notice FS50440547 16/8/12 Various requests were made that were not answered by Wirral Council. The Information Commissioner’s Office ruled that this breached s.10(1) and required Wirral Council to answer the requests.

Decision notice FS50440548 16/8/12 The Information Commissioner’s Office required Wirral Council to answer the requests made by the requester as they had not done so within the twenty working days.

Decision notice FS50440553 16/8/12 Wirral Council failed to respond to various requests within the twenty day time limit. The Information Commissioner’s Office saw this as a breach of s.10(1) and required Wirral Council to respond to the requests.

Decision notice FS50440555 14/8/12 Wirral Council stated it didn’t hold the information requested. During the course of the investigation Wirral Council provided the requester with the names of staff requested. However as this information was recalled from memory it fell outside the scope of the Freedom of Information Act. Therefore the Information Commissioner’s Office agreed with Wirral Council’s view that it did not hold the information requested.

Decision notice FS50445302 10/10/12 Wirral Council did not provide a response to the Freedom of Information Act request or a refusal notice. The Information Commissioner’s Office required it to either respond to the request or provide a refusal notice to the requester.

Decision notice FS50430602 22/11/12 Wirral Council stated that it did not hold the information requested. The Information Commissioner’s decision was that on the balance of probabilities it did not.

Decision notice FS50438500 29/11/12 Wirral Council refused a request claiming a s.40 (personal data) exemption applied. It later disclosed information on the severance payments to two individuals. The Information Commissioner agreed with Wirral Council that a s.40 exemption applied, however ruled that Wirral Council had breached 10(1) of the Freedom of Information Act by taking longer than twenty days to respond and a further breach of 10(1) by taking longer than twenty days to disclose the information on severance payments. Information Tribunal appeal number EA/2012/0264 was dismissed.

Decision notice FS50468400 30/4/13 Wirral Council relied on a s.40 (personal data) exemption. Once the Information Commissioner’s Office was involved, Wirral Council stated that the information was publicly available. The Information Commissioner’s Office ruled that Wirral Council had breached s.1(1)(a), s.1(1)(b) and s.10(1) of the Freedom of Information Act and upheld the complaint.

Decision notice FS50468862 23/5/13 The Information Commissioner’s Office ruled that Wirral Council had breached s.10(1) of the Freedom of Information Act and required Wirral Council to respond to the request.

Decision notice FS50470254 4/6/13 The Information Commissioner’s Office disagreed with Wirral Council’s interpretation that a s.40 (personal data) exemption applied to information which contained names of its employees. It found that Wirral Council was in breach of s.10 of the Freedom of Information Act. The Information Commissioner’s Office required Wirral Council to release the information requested by the requester that it didn’t agree that the s.40 exemption applied to.

Decision notice FER0488228 5/8/13 The requester requested an independent viability assessment report in relation to a planning application for a site on Ingleborough Road, Birkenhead. Wirral Council released some information from the report but relied on an exemption in Regulation 12(5)(e) in the Environmental Information Regulations over the rest of the information. The Information Commissioner’s Office agreed with Wirral Council’s application of the exemption in Regulation 12(5)(e), but ruled that Wirral Council had breached regulations 5(2) and 11(4).

Decision notice FS50475685 15/8/13 Wirral Council refused a request relying on an exemption under s.40 (personal data). The Information Commissioner’s Office agreed with Wirral Council’s use of the exemption but ruled that Wirral Council had breached s. 10(1) by not providing a response within twenty days.

Decision notice FS50485049 8/8/13 The Commissioner’s decision was that, on the balance of probabilities, Wirral Borough Council did not hold the requested information so the complaint was not upheld.

Decision notice FS50482286 9/9/13 Wirral Council refused a request relying on exemptions in s.32 (court records, etc) and s.40 (personal information). Once the Information Commissioner’s Office was involved Wirral Council decided not to rely on s.32 (court records, etc) and released the document with the names redacted. The Information Commissioner ruled that Wirral Council had breached s.10(1) by not providing a response within twenty days.

Decision notice FS50512385 26/9/13 The Information Commissioner found that Wirral Council had breached s. 10(1) by not providing a response and required Wirral Council to provide a response.

Decision notice FS50474741 3/10/13 Wirral Council refused a request relying on exemptions in s.41 (information provided in confidence) and s.42 (legal professional privilege). During the Commissioner’s investigation Wirral Council dropped its reliance on s.42 (legal professional privilege). The Commissioner’s decided that Wirral was not entitled to rely on section 41 in relation to some of the information, as it was not provided by another party and had not provided sufficient justification for the application of section 41 to the remainder of the information. It required Wirral Council to disclose the requested information.

Decision notice FS50478733 30/10/13 In response to a request Wirral Council linked to some information in the public domain but claimed a s.40 (personal information) exemption applied to the rest. During the course of the Commissioner’s investigation it released a further three documents to the complainant. The Information Commissioner ruled that Wirral Council had breached s.10(1) as its response to the complainant had taken longer than twenty days.

Decision notice FS50491264 8/10/13 Wirral Council relied on s.14 (vexatious or repeated requests) to refuse a request. The Information Commissioner disagreed that a s.14 exemption applied to the requested information and that Wirral Council had breached s.10(1) of the Freedom of Information Act. The Information Commissioner’s Office required Wirral Council to issue a fresh response without relying on a s.14 (vexatious or repeated request) exemption.

Decision notice FS50496446 17/10/13 The Information Commissioner’s Office ruled that Wirral Council had breached s.10(1) by not providing a response within twenty working days.

Decision notice FS50501894 18/12/13 Wirral Council refused a request using a s.40 exemption (personal information). The Information Commissioner decided that s.40 wasn’t engaged and therefore couldn’t be used to withhold the information. It ruled that Wirral Council issued a refusal notice outside of the twenty days breaching s.17(1). It required Wirral Council to provide the information.

Decision notice FS50489913 13/1/14 Wirral Council stated that it did not hold information in response to a request. The Commissioner’s decision was that the Council is likely to hold relevant information so had therefore breached sections 1 and 10 of the Freedom of Information Act. Wirral Council was required to issue a fresh response to the complainant.

Decision notice FS50496910 15/1/14 Wirral Council refused a request relying on an exemption in s.40 (personal information). During the Commissioner’s investigation, Wirral Council provided some of the information requested. The Commissioner agreed that Wirral Council had correctly applied the s.40 exemption to the rest of the information but that Wirral Council had breached s.10(1) by not providing the information it did provide within twenty days of the original request.

Case FS50506771 11/2/14 Wirral Council refused a request stating that a s.40 (personal information) exemption applied. The Information Commissioner’s Office agreed but ruled that Wirral Council had issued a refusal notice outside the twenty day period breaching s. 10(1).

Case FS50506844 11/2/14 Wirral Council stated that information requested was not held. The Information Commissioner’s Office agreed but ruled that Wirral Council had provided a response outside the twenty day period breaching s. 10(1).

Decision notice FS50502536 19/3/14 Wirral Council claimed that in response to a request that exemptions under s.40 (personal information) and s. 42 (legal professional privilege) applied. The Information Commissioner’s Office agreed that Wirral Council had correctly applied the s.40 exemption, however as its response was outside the twenty day limit ruled it had breached s.10(1).

Decision notice FS50506802 26/3/14 Wirral Council had not provided a response to a request within twenty working days. The Information Commissioner’s Office found that Wirral Council had breached s. 10(1) of the Freedom of Information Act.

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EXCLUSIVE: Councillor Phil Davies agrees to pay extra £113,189 to Hoylake Golf Resort consultants based on secret report

                     

Yesterday Councillor Phil Davies agreed that consultants on the Hoylake Golf Resort project would be paid an extra £113,189 based on a report in the name of Kevin Adderley, the Strategic Director for Regeneration and Environment. David Ball, Wirral Council’s Head of Regeneration (davidball@wirral.gov.uk/0151 691 8395) had a role in preparing the report.

The report on which Councillor Phil Davies made his decision has not been made available to the public on grounds that it has “commercial sensitive information”. However the surprising decision would seem to not to comply with The Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012. The decision is a key decision however:

  • A document detailing that they wish to make a key decision was not published 28 clear days by Wirral Council before making the decision (see Regulation 9 (Publicity in connection with key decisions).
  • A notice was not published five days before the decision detailing agreement of the chair of the relevant policy and performance committee that it was an urgent decision and could not be reasonably deferred (see Regulation 10 (General Exception).
  • A notice wasn’t published claiming special urgency and detailing agreement of either the chair of the relevant policy and performance committee, Mayor or Deputy Mayor that it was urgent and couldn’t be reasonably deferred (see Regulation 11 (Cases of special urgency).
  • It’s a legal requirement that an annual report (see Regulation 19) is brought by the Leader to a meeting of all Wirral Council councillors about decisions where a case of special urgency is used since the last report. Despite this being a legal requirement since the 10th September 2012, to my recollection no such report has ever been brought to a Council meeting.

Councillor Phil Davies’s decision could still be called in by councillors as a call-in deadline of 24th April 2014 has not yet passed. The reason for the urgency was given as “to allow the OJEU Competitive Dialogue process to be finalised and a preferred developer for the Hoylake Golf Resort project to be selected and announced prior to the Open Golf Championship at Royal Liverpool in July 2014.” At least one Conservative councillor has previously asked at a public meeting about when the public will be consulted on Wirral Council’s Hoylake Golf Resort plans.

UPDATED: The extra £113,189 paid to David Langdon (AECOM) is in addition to £123,823 already agreed by Cabinet last year who also agreed to £55,000 of legal advice from Pinsent Masons LLP.
A report on Wirral Council’s website from last year details what the Hoylake Golf Resort is about.

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EXCLUSIVE: Wirral Council only receives 50% of the resale price for its thousands of old computers

                            

On Monday I asked a question at the Transformation and Resources Policy and Performance Committee. Wirral Council had at the start of this month has 3,780 computers running Windows XP. It’s planning to spend £2.5 million on new computers to replace the old computers so that Windows 7 can be installed.

My question was firstly whether Wirral Council was getting anything for these thousands of old computers (the estimate given was that 90% would need to be replaced whereas the other 10% could run Windows 7) and a technical question about SCC plc who Wirral Council is paying to help them install the new computers.

The answer surprised me and is below (which the councillors on the Transformation and Resources Policy and Performance Committee have been copied into).

=======================================================================================================

From: “Sankey, Steve”
Date: Thu, 17 Apr 2014 12:33:53 +0100
Subject: Transformation and Resources Policy and Performance Committee – Unanswered question about what happens to the old computers

Dear Mr Brace

Thank you for your questions regarding what happens to the old computers, when we move to new computers running Windows 7.

I can confirm that the Council has a contract with a company called SITR, which handles the secure disposal of IT equipment. The company picks up the old computers and securely removes all data in compliance with agreed standards and directives (eg Waste Electrical and Electronic Equipment directive WEEE). It issues the Council with a certificate confirming we comply with UK government standards of disposal.

The company recycles/sells the computers on the open market. The Council does not pay for the collection of the equipment, and receives 50% of any resale value when the equipment is resold.

Finally you enquired about the framework agreement we have used to procure SCC services. I can confirm that the process for the appointment of SCC was via the Crown Commercial Service (formerly Government Procurement Service) Framework – RM720 – Sprint II.

Yours truly,

Steve

Steve Sankey

Wirral Council
Treasury Building, Cleveland Street, Birkenhead, Wirral, CH41 6BU
Tel: 0151 666 3029
E-mail: stevesankey@wirral.gov.uk
Visit our website: www.wirral.gov.uk

=======================================================================================================

So let me just get this straight. Wirral Council is only getting 50% of the resale cost of thousands of old computers, but it’s currently consulting on closing Lyndale School over a projected shortfall of £120,000 a year from 2015/16 onwards.

Here are some ballpark figures on the sale of the computers.

Wirral Council estimate that 90% of the machines will need replacing. 90% * 3,780 = 3,402 machines.

An estimate of £100 each for each unit (computer, monitor and keyboard) that SITR sell £100 * 3,402 machines = £340,200.

Amount that Wirral Council gets £170,000, amount that SITR gets £170,000. £170,000 is enough to keep Lyndale School open for a further year, if Wirral Council were to do this themselves. If Wirral Council were to do it in house instead and we take off from that £340,000 amount the costs of two full time staff (£50,000) to securely wipe the hard drives before they’re resold and do the certificates they say are required (assuming each person can wipe seven hard drives a day with enough time left to organise selling the rest) it’s a considerable sum of money! So what do you think?

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Councillor Adam Sykes wants Wirral Council to “be a guiding light for freedom of information for other councils”

                        

Video of Wirral Council’s Transformation and Resources Policy and Performance meeting of the 14th April 2014. The item on the Freedom of Information Scrutiny Review starts at 1:53

The covering report for this item and the final report of the scrutiny review can be downloaded from Wirral Council’s website.

Below is a transcript of this item as it didn’t attract much discussion.

COUNCILLOR STUART WITTINGHAM
This is the final report, despite having draft as an imprint. I’m sure that when, if this evening agrees, this report goes to Cabinet the draft will be removed. I’d like to invite Adam if you want to introduce this item.

COUNCILLOR ADAM SYKES
Thank you Chair. Building on what’s on page twenty-seven in my opening statement basically we took upon this review as the Council had been under monitoring action from the Information Commissioner and had already improved its result on FOI to over 85%.

We didn’t want to merely reach the baseline, we wanted to exceed this figure and be a guiding light for FOI for other councils. So taking on various strands of the whole process, how actually it goes through the system to how we can improve items coming in, how they’re managed once they’re here and also how we can reduce the number of requests in the first place because obviously the actual costs of these FOI requests are quite significant.

It’s quite shocking actually well when you see how much we’ve spent on a weekly basis on FOI requests that could be better spent elsewhere in the Council. So, I don’t know whether I need to go into much more detail as the recommendations are all in the pack. Obviously we’re happy taking any questions, I’m sure the other members of the group are.

I’d just like to conclude by thanking the officers for their time in the you know producing the report, Jane Corrin, Surjit and also support from the scrutiny officer Mike and it was really very helpful and an interesting review to be part of.

COUNCILLOR STUART WITTINGHAM (CHAIR)
Thank you very much. Christina, do you have anything to add?

COUNCILLOR CHRISTINA MUSPRATT
Just apologies for being late.

COUNCILLOR STUART WITTINGHAM (CHAIR)
OK, I’d like to thank Adam and thanks to the officers for this overview and scrutiny review and thank both yourself and Christina for what I really think is a …

COUNCILLOR ANDREW HODSON (CONSERVATIVE SPOKESPERSON)
I was going to say members of the committee were told by the effective leader of yourself, Christina and Adam of all the work you’ve put in on this, but obviously if you wasn’t aware of … so very good.

COUNCILLOR STUART WITTINGHAM (CHAIR)
Yes, thank you. Right, Phil?

COUNCILLOR PHIL GILCHRIST (LIBERAL DEMOCRAT SPOKESPERSON)
Could I say that I welcome the sort of crisp and concise way that the report was written and the recommendations but might I asking while Mr. Blott’s beaming at the moment, through you Chair, whether we can perhaps have a bit of advice on what can be done with the search facility on the website. The work the committee sought was to try and reduce requests that could be answered in any other way and clearly when I try and find things searching it always says “are you sure you’ve spelt it right?” which is about the only guidance the website gives us.

I wondered if officers rather perhaps than note the use and power of that, whilst we were noting perhaps they could give advice on how it could be progressed elsewhere and what sort of timescale.

JOE BLOTT (STRATEGIC DIRECTOR FOR TRANSFORMATION AND RESOURCES)
Yeah, thank you Chair. Thanks very much indeed, I think a couple of comments on that. Certainly in terms of a response to the particular question from Councillor Gilchrist. Yeah, certainly as part of our overarching improvements to public access and our customer channels, anything we can do to improve, that that possibility will do so. In terms of timeliness of that, we are looking, we have launched the intranet as we know at the turn of this year, so that’s been reviewed and we are about to embark on a change to the internet access points as well. So I think your point’s well made.

It’s well timed and everything within a very short space of time we’ll be able to improve on that I think and anything we can do to improve the search arrangements in terms of behind our ICT program build we’ll certainly do that. Perhaps we could, if I can, if we note that as part of a minute item which we pick up in June to see where our business is up to.

COUNCILLOR STUART WITTINGHAM (CHAIR)
Any other comments?

JOE BLOTT (STRATEGIC DIRECTOR FOR TRANSFORMATION AND RESOURCES)
Thanks Chair, just if I may. They’re contained within the report anyway but I think it really does strike me as a really positive approach for the policy and performance committees to drill down into such matters and I think that from an officer perspective, to receive the balanced report is really encouraging. I think more than anything else it demonstrates progress that we had taken. I think it demonstrates progress that we were taking in advance of the ICO’s intervention, nevertheless quite clearly we were duty bound to follow that and I think it is important to see both in terms of context which I think is helpful on page nineteen in terms of the numbers of requests we get, but in terms of page eighteen in terms of how we responded to those requests but I guess as the report sets out it’s really important that this is a journey that we’re on here and we haven’t reached our end game yet.

The end game is the consistency of response times to the FOI requests that links heavily into Councillor Gilchrist’s point that the more information we can provide upfront, then hopefully less number of FOIs we’ll have to deal with which equally comes back to the Chair’s comments around the costs of FOI enquiries which are extremely high and I was quite sure in the briefing that we can use the resources to greater effect in terms of impact on service users and our residents.

So certainly from an officer perspective regarding the report, happy to again as an officer to accept all the recommendations and ensure they will see due progress over the coming months.

COUNCILLOR STUART WITTINGHAM (CHAIR)
Thank you Joe, Surjit do you have anything to add?

SURJIT TOUR
No.

COUNCILLOR STUART WITTINGHAM (CHAIR)
OK, anyone else got any further comments or questions? OK, I’ll move onto the recommendations. 4.1 agreed? It’s on page ten. 4.1 the Committee is asked to note the contents of the report. Agreed?

COUNCILLORS
Agreed.

COUNCILLOR STUART WITTINGHAM (CHAIR)
OK, at 4.2 we’re requested to consider whether or not we wish to refer the report to Cabinet. I suggest that we do, is that agreed?

COUNCILLORS
Agreed.

COUNCILLOR STUART WITTINGHAM (CHAIR)
Thank you.

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Planning Committee approves planning application for houses in Irby by seven votes to five

                        

Video of Wirral Council’s Planning Committee meeting of the 16th April 2014

The Planning Committee meeting started as usual with her usual spiel about who were sitting around the tables (which considering that everyone had name plates seems a little unnecessary). She said that to her left was the solicitor (Rosemary Lyons) to “make sure everything is done legally” and that the officers (of which there were four) to her left where there to “guide us through our decisions and make sure everything is done appropriately with planning legislation”.

If the Chair thinks the role of the officers to her left is to make sure that decisions about planning applications are made according to planning legislation, then what’s the purpose of having a solicitor too? When every other committee at Wirral Council manages to cope with one legal adviser why does the Planning Committee need five to advise it on such matters?

She then went on to recap the rules on speaking for petitioners and applicants. The only change to usual is that she said, “A ward councillor can come forward and talk upon any item in their ward and they can speak for longer than five minutes but everybody only gets a chance to address the Planning Committee once.”

Until recently ward councillors were under the impression they could address the Planning Committee at any time when a planning application concerning their ward was being discussed. The Code of conduct for Planning Committee meetings and Wirral Council’s constitution have nothing in them about ward councillors talking at Planning Committee meetings. Certainly in the recent past at least one councillor thought they could speak at any time but the Chair told them they couldn’t. The only reference in the constitution to councillors and Planning Committees is that ward councillors can decide that they want a planning application to be decided by the Planning Committee rather than by officers.

The constitution states that any councillor can decide that a planning application is decided by the Planning Committee. The fact this isn’t limited to councillors in the ward the planning application relates to has been misused in the past. With fictional names I’ll give an example.

Mrs Smith is standing as the Labour candidate in Puddleton (a made up ward that doesn’t exist on the Wirral). Unfortunately for Mrs Smith Puddleton has three councillors from a different political party who know she is the Labour candidate in Puddleton. Mrs Smith spots a planning application that she thinks she can get a large petition of residents against it and gain votes of local residents affected by it. As the lead petitioner she will also get to speak against it for five minutes, if a councillor takes it out of officer’s hands and makes sure it is decided by the Planning Committee.

Unfortunately for Mrs Smith it’s over a minor matter and wouldn’t usually be decided by the Planning Committee. The planning officer wants to approve the planning application. Mrs Smith asks a Labour councillor (who doesn’t represent Puddleton) to make sure that it will be decided by the Planning Committee, therefore ensuring it is decided nearer the election and that there will be more media coverage of Mrs Smith’s campaign. The Labour councillor makes sure that this happens, thus making the residents think that Mrs Smith is influential and when the application is turned down a better choice than the existing councillor (also a candidate) which didn’t want it to be decided by the Planning Committee as he/she knew it was part of a party political ploy by Mrs. Smith to gain votes from local residents.

However, going back to the Planning Committee. The minutes of the meeting held on the 20th March 2014 were agreed. Nobody declared any interests and no requests for site visits were made.

The first planning application to be decided was OUT/14/00094: 38 Thurstaston Road, Irby, CH61 0HF: Outline planning application to create 2 No. new residential properties. A Wirral Council officer said that there had been seven letters of objection detailing various issues which she listed. Despite the objections officers felt it was compliant with national and local planning policies and recommended it for approval subject to conditions.

Councillor Wendy Clements said that had Tony Cox not resigned as a councillor that he would’ve attended the Planning Committee meeting and detailed the concerns of local residents. She talked about trees, British standards and asked planning officers about a tree survey.

Matthew Davies replied that there had been a tree survey with the application and it had also been assessed by the Council’s arboricultural officer. He pointed out that some of the trees mentioned by Cllr Wendy Clements were not part of the planning application and that they couldn’t impose conditions on trees outside of the boundary. He said that if trees were damaged outside of the boundary it was a civil matter.

Councillor Wendy Clements said that that was difficult to understand as the existing standard referred to trees on or adjacent to the site. She referred to appearance and amenity issues but accepted that whether it was unacceptable harm was a matter of opinion, but she felt that the way officers had written the report it implied that some harm would result. Cllr Clements passed around photos to show the effect on light on neighbouring properties. She referred to policy HS4 and how the scale of what was proposed fitted into the surrounding area.

Councillor Elderton asked to see the plan, but he pointed out that as it was an outline planning application that the position of the houses was only indicative at this stage. He thought different positions of the houses would be more suitable but stated that it couldn’t be turned down based on the indicative positions as they were only indicative. He asked officers for advice as he was not happy with the proposed development.

Matthew Davies said that as it was an outline planning application that all matters would be reserved and that the plan was only for indicative purposes. He said that if the application was approved then Wirral Council would have significant control over the scale, site, appearance and where the properties were sited.

Councillor Wendy Clements moved refusal on the basis that it would result in a development that was cramped, overdeveloped and that the two dwelling would cause a detrimental change to the area contrary to the guidance in the National Planning Policy Framework and policy HS4 of the Unitary Development Plan.

Councillor Steve Foulkes said that he felt three was feasible on the plot, he asked what the average plot size was for surrounding properties? Matthew Davies replied that the officers felt it was possible to have three dwellings on the plot. Although plot sizes were similar on one site of the application site, they were different to what was proposed on another. Therefore in his opinion it was up to councillors to make a judgement as to whether three could be accommodated taking into account the detail that would be decided at the reserved matters stage.

Councillor Geoffrey Watt seconded Councillor Wendy Clements motion for refusal.

For refusal: Councillor Wendy Clements (proposer), Councillor Geoffrey Watt (seconder), Councillor Simon Mountney, Councillor Eddie Boult, Councillor David Elderton and Councillor Philip Brightmore (6)
Against refusal: Councillor Stuart Kelly, Councillor Bernie Mooney, Councillor Denise Realey, Councillor Steve Foulkes, Councillor Joe Walsh, Councillor Irene Williams (6)

The motion for refusal was 6 votes to 6. The Chair didn’t say how she used her casting vote. However she deemed the motion for refusal to be lost.

There was then a vote on the officer’s recommendation for approval. This was proposed by Cllr Denise Realey and seconded by Councillor Steve Foulkes.

For approval: Councillor Stuart Kelly, Councillor Bernie Mooney, Councillor Denise Realey, Councillor Steve Foulkes, Councillor Joe Walsh, Councillor Irene Williams and Councillor Philip Brightmore (7)
Against approval: Councillor Wendy Clements (proposer), Councillor Geoffrey Watt (seconder), Councillor Simon Mountney, Councillor Eddie Boult and Councillor David Elderton (5)

The motion for approval was won by 7 votes to 5 so the application was approved.

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