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Posted by: John Brace | 19th April 2014

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

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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Responses

  1. Good old ICO have the requisite language skills, where “Took longer than 20 working days” equates to:

    “Took 2 years and 2 months”

    (Bill Norman departure info – and it’s not over yet)

  2. I’m going by calendar time here rather than working days. initial request happens on day one, by a month later there should be the response and if there’s an internal review it should be completed by three months after the request. Appealed to ICO say after four months, ICO take 8 months to get round to it and a further 2-3 months fruitlessly trying to get a reply out of Wirral Council.

    However in your case, if politicians had actually considered the exemption states “Information…. which is exempt information if and so long, as in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information, see s. 10 here, Wirral Council would’ve published that information around when the “public meeting” was when it got decided (and saved a lot of staff time and expense in trying to stop disclosure).

    Do politicians actually realise they’re supposed to consider the public interest or are they too keen as mustard to rubber stamp officer recommendations?

  3. […] SEE HERE However we were particularly drawn to the details in the report which read : “In terms of the volume of Freedom of Information requests made to Wirral Borough Council, a benchmarking exercise was carried out against a number of similar sized local authorities to see if there were any consistencies. The benchmarked local authorities were derived from the Local Government Boundary Commission for England, based on numbers of constituents. The results of the exercise are included below. […]


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