What was in the 11 A4 page witness statement of Surjit Tour (Wirral Council) about a Freedom of Information request for the minutes of a meeting of the Headteachers’ and Teachers’ Joint Consultative Committee (EA/2016/0033)?
At the outset I will make four declarations of interests.
1) I am the Appellant in this case (EA/2016/0033).
2) My wife was my McKenzie Friend in case EA/2016/0033.
3) I made the original Freedom of Information request on the 29th March 2013.
4) I am referred to by name (Mr. Brace) in paragraphs 1, 5, 6, 8, 9, 11, 13, 14 and 15 of the witness statement of Surjit Tour.
5) My profession ("local press") is referred to in paragraph 27.
This continues from two earlier blog posts headlined What were the 6 A4 pages of partially redacted minutes of a Headteachers’/Teachers’ Joint Consultative Committee meeting and the name of a LGA Associate Tutor that Wirral Council disclosed voluntarily in response to a First Tier-Tribunal (General Regulatory chamber) hearing (case number EA/2016/0033) about a Freedom of Information request first made in March 2013? and What was in the 5 A4 page witness statement of Andrew Roberts (Wirral Council) about a Freedom of Information request for the minutes of a meeting of the Headteachers’ and Teachers’ Joint Consultative Committee (EA/2016/0033)?.
Line breaks are indicated by a double horizontal line break. A picture of Surjit Tour at a public meeting of Wirral Council’s Coordinating Committee from the 15th June 2016 is below so people reading know who I’m referring to. I have included his signature, typed name and handwritten date at the end of the witness statement as an image.
I have added a links from his witness statement below to decision notice FS50596346 referred to in paragraph 1 of his witness statement as this has been published on ICO’s website. I also link to section 36 of the Freedom of Information Act 2000 also referred to in paragraph 4. The references in Mr. Tour’s witness statement (paragraphs 12, 19 and 20) below to Mr. Roberts’ witness statement (previously published on this blog) are linked to Mr. Roberts’ witness statement.
Where paragraphs cross over multiple page I have added the paragraph number on the second page to preserve formatting and to aid with comprehension.
The witness statement of Surjit Tour was sent to me by post to the incorrect address (Wirral Council decided to delete the road and property number) for service (recorded signed for mail) by Wirral Council on 31st May 2016. It was received by myself on the 2nd June 2016.
IN THE MATTER OF AN APPEAL TO THE FIRST-TIER TRIBUNAL (INFORMATION RIGHTS) UNDER SECTION 57 OF THE FREEDOM OF INFORMATION ACT 2000
(1) THE INFORMATION COMMISSIONER
(2) WIRRAL METROPOLITAN BOROUGH COUNCIL
WITNESS STATEMENT OF SURJIT TOUR ON BEHALF OF WIRRAL METROPOLITAN BOROUGH COUNCIL
I, SURJIT TOUR, of Town Hall, Brighton Street, Wallasey, Wirral, CH44 8ED will say as follows:-
I am the Head of Legal & Member Services and Monitoring Officer for the Second Respondent (“the Council”). I make this statement in support of the Council’s opposition to Mr Brace’s appeal against decision FS50596346 issued by the First Respondent (“the IC”) on 25 January 2016.
I have been a qualified and practising solicitor since March 1999. I have worked in both the private and public sector. I joined the Council in November 2009 as the Head of Legal and Member Services and Deputy Monitoring Officer, before becoming the Monitoring Officer in June 2012. My previous employment was at another local
authority at which I was the Head of Legal & Democratic Services and Monitoring Officer.
I am the most senior legal officer at the Council and regularly advise the Leader of the Council, Cabinet members, other senior politicians and officers on significant legal and governance matters. I currently manage eight service areas: Legal Services, Committee Services, Member Services, Information and Records Management, Electoral Services, Civic Services, Coroner Service and Registrar Services.
The Monitoring Officer role is a statutory position that is responsible for (i) ensuring the Council’s governance arrangements are satisfactory, (ii) ensuring that the Council’s Constitution is fit for purpose, (iii) overseeing the ethical framework relating to Member conduct, and (iv) ensuring that the Council acts lawfully in all matters. One further aspect of the role of Monitoring Officer is to act as the Council’s “qualified person” for the purposes of section 36 of the Freedom of Information Act 2000 (“FOIA“). I gave the section 36 opinion at issue in the present appeal, on 31 October 2014.
That opinion was given in relation to a FOIA request made by Mr Brace on 29 March 2013. Mr Brace’s request had 26 parts. The request has followed a complex course, with a number of complaints and decision notices by the Commissioner. I explain below how the Council has sought to narrow the outstanding issues.
The information in dispute in this appeal
The Council has now disclosed all of the documents within the scope of Mr Brace’s request. The closed bundle contains the unredacted versions of those documents from which redactions have been made: items 15 (the focus of this appeal), 18, 19 and 26.
Minor redactions were made to items 18, 19 and 26, on the grounds of personal data which it would be unfair and contrary to the Data Protection Act 1998 (“DPA”) to disclose in this context.
It appeared from Mr Brace’s reply to the Respondents’ pleadings that he was under certain misapprehensions about the nature of those redactions. The Council wrote to Mr Brace on 17 May 2016 seeking to clarify those mistaken assumptions. Its letter said inter alia that:
“As regards paragraph 12 of your Reply, I can confirm that the personal data contained in Item 26, page 3 (Draft minutes of the Safeguarding Reference Group, dated 19 April 2011), does not relate to Peter Connolly (Baby P), as suggested in your Reply. It relates to a living individual.
I also refer to Items 18 and 19, which refer to the Minutes of the Member Training Steering Group dated 19 March 2013 and to the Minutes of the Members’ Equipment Steering Group dated 7 February 2013, respectively. Redacted copies of these documents were sent to you on 12 February 2016. The minimal amount of redacted personal data relates to (i) junior employees below Head of Service Level, who were not in a public facing role and (ii) an individual, who was not a member of nor an employee of the Council, and who would have a legitimate expectation that their personal data would not be disclosed to a member of the public.”
Mr Brace responded by email on 23 May 2016, explaining that he continues to seek some of the redacted information from items 18, 19 and 26. I can therefore confirm that the Council considers those redactions to have been correctly made under section 40(2) FOIA, as explained above. The Council has, for example, seen nothing to suggest that there is a legitimate interest in the public disclosure of these particular items of personal data. The information is thus exempt due to no condition from Schedule 2 to the DPA being satisfied. Given the role these individuals played in the disputed
information, it would be unfair to disclose their personal data here. I will seek to assist the Tribunal further on this point if needed at the hearing.
For present purposes, I focus on what the Council considers to be the primary item on dispute in this appeal, namely item 15. This document is the minutes of a meeting of the Headteachers’ and Teachers’ Joint Consultative Committee (“JCC”), held at Wallasey Town Hall on 28 February 2013. I will refer to the documents as “the Minutes”.
As I have said, this was requested by Mr Brace on 29 March 2013, when the Minutes were very recent. I understand that to be the primary point of reference for the purposes of FOIA exemptions and the public interest balancing test. However given that I gave my opinion in October 2014, I also asked myself whether the concerns underpinning that opinion were applicable at that date. I was satisfied that they were. So, whether the matter is considered in or around March 2013 or in or around October 2014, the answer is in my view the same (though of course the extremely recent nature of the Minutes in March 2013 means these concerns were all the more acute then).
I should also make clear that the Council has tried to take a pragmatic approach to the present appeal. It initially withheld the entirety of item 15; it did not at that time undertake a paragraph-by-paragraph assessment of item 15, in part because of the wide range of the request, and in part because this matter had been ongoing for a long time. In preparation for this appeal, however, I have met with my colleague Andrew Roberts (who has also made a witness statement) and we considered item 15 on a paragraph-by-paragraph basis. We identified sections which could be safely disclosed to Mr Brace without causing difficulties from the Council’s point of view.
We then wrote to Mr Brace on 19 May 2016, providing him with the redacted version of item 15. The bulk of the redacted material from item 15 (the Minutes) is withheld under section 36(2)(b)(ii) FOIA. The Minutes appear in redacted form in the open
bundle and in unredacted form in the closed bundle at page, with the disputed information shaded. This is the focus of my witness statement.
In its letter of 19 May 2016, the Council also sought to clear up one further apparent misapprehension on Mr Brace’s part, this time about item 15. In his reply to the Respondents’ pleadings, Mr Brace speculated that item 15 contained a discussion of an error in the calculation of the Dedicated Schools Grant. That is not correct. This topic was not discussed at this JCC meeting. It was discussed at another meeting, of the Schools Forum, but not at this JCC meeting.
In addition, the Council explained in the same letter of 19 May that the personal data of one junior employee (‘HR Officer – Schools’) was being withheld. This person was not ‘public-facing’, had no decision-making role and no expectation that their personal data would be made public. I do not currently know wther or not Mr Brace wants to have this personal data disclosed to him, but if he does the Council maintains (as for the redactions made to items 18, 19 and 26) that it is exempt under section 40(2) FOIA.
I explain below why, in my opinion, the disputed information (i.e. the withheld sections of the Minutes) would have been likely, if disclosed in March/April 2013 or October/November 2014, to have prejudiced the free and frank exchange of views for the purposes of deliberation.
Why section 36(2)(b)(ii) FOIA applies to the disputed information
I can confirm that, in providing my opinion, I met with a Council solicitor, Rosemary Lyon, and the Council’s Records and Information Manager, Jane Corrin, on a number of occasions during August and September 2015. We discussed the concerns about the public disclosure of items 15, 18 and 19. We specifically considered item 15. I was briefed to ensure that I understood the context of the JCC minutes and the content of the Minutes, which I read for myself.
The reasons for my view that disclosure of the redacted parts of item 15 would be likely to prejudice the free and frank exchange of views for the purposes of deliberation are as follows.
The information should be assessed in the context of the work of the JCC. This is explained in the witness statement of Andrew Roberts. I agree with what he says there. I add that the elected members of the JCC are appointed by the Council at its Annual Council meeting at the start of the Municipal Year.
The issues considered and discussed at the relevant JCC meeting are again detailed in Andrew Roberts’ witness statement. Those issues by their very nature are often contentious, meaning that a range of strongly-held (and strongly-argued) views will be expressed in such discussions. These issues also have significant strategic and/or political implications for the Council, i.e. they are not minor or one-off matters, but are debated over a long period.
These issues include: comprehensive and fundamental reviews associated with the education sector (in particular, the ‘Academies’ agenda); the current structure and service delivery models of education; budgetary options and proposals for improvement and potential change. These issues are at the heart of the Council’s delivery of one of its most important services, namely education. It is vital that the Council takes time in reaching the best possible decisions on these important and contentious issues. The application of section 36(2) FOIA in this case is driven by that concern.
Some of the significant issues discussed at the JCC can take considerable time to progress, as they will involve a number of associated issues and implications, e.g. because they are political/long-term strategic issues which can take many months and/or years to resolve. The Academies agenda, staffing issues, and school admission and places are all matters which evolve and are debated and resolved over a period of years rather than months.
Given the nature of the issues discussed at the JCC, it is critical for members of the JCC to be able to share candidly their views and opinions on important strategic, operational and financial matters without fear and in the knowledge that such views and opinions would remain confidential. The effectiveness of the JCC would be significantly undermined if there was no safe space to raise and discuss sensitive and important issues openly. Candid debate is vital to the quality of debate. It helps decisions to be reached in a more effective and timely manner, which is critical in the school/educational environment.
The particular Minutes in question contain candid expressions of views by JCC members that are genuinely free and frank which can be seen from the terminology and phraseology used. I also confirm that the issues they were discussing remained live at the time I gave my opinion in October 2014, and that they remain live now.
The JCC by its very nature is only effective if there is a safe space within which to raise and discuss sensitive, important and topical educational issues. I know from my experience that members of the JCC have an expectation that sensitive and key strategic and operational matters can be discussed confidently in the knowledge that their comments would remain confidential.
Every work environment will encounter strategic, operational, finance and staffing issues that can be wide ranging in scope, significance and impact on both service delivery and personnel. Discussion on such issues will/can often include robust views and expressions, not least because of the compassion and professionalism of the members of the JCC. To remove this safe space would have a significant chilling effect upon both the members of the JCC and the role and purpose of the JCC.
If these Minutes are disclosed in their entirety, then discussion and debate at the JCC would be likely to be more guarded and stifled. Participants would not want to be misquoted or misconstrued (by external parties, including the local press) in what they have said orally in a private meeting. They will not wish their frank comments to be
seen as unduly critical of individuals. The result is that issues and concerns are unlikely to be openly discussed and appreciated.
I acknowledge the counter-arguments to the above could be raised. For example it could be said that JCC members could never have expected full confidentiality, particularly in light of FOIA. While that is true, it does not in my view undermine the Council’s reliance on section 36 here. This is because an inherent aspect of the JCC role’s and purpose is to provide a forum for key issues and matters to be discussed openly so as to ensure more effective resolution/progress. Members would not expect absolute confidentiality, but they would legitimately expect a safe space in which to debate candidly on live issues.
I also acknowledge that JCC members could be expected to be robust enough to continue to convey their points with sufficient force and clarity. However that des not take away the need for a safe space for candid debate and discussion on important and sensitive matters. Carefully crafted expressions – rather than candid and frank ones – will be less effective at driving the key points home, and will at least make for a more cumbersome and drawn out process of deliberation. Candour is key to both rigour and timely resolution.
In addition, I acknowledge that by the time I gave my opinion, the disputed information was approximately 20 months old. However, the issues addressed in the disputed information remained very much live at the time of my opinion, and therefore the same considerations described above continued to apply. I add that if the matter were considered as at the time of Mr Brace’s request, the position would be even clearer.
Therefore, in light of the contentious issues discussed in these Minutes, the candid way in which the exchange of views and deliberations are reflected in these Minutes and the importance of a confidential space in which to exchange views, I remain of the view that section 36(2)(b)(ii) FOIA applied. This is because disclosure of this particular information would have undermined this important confidential space.
There would be a loss of confidence on the part of the JCC members that future exchanges of views could be properly minuted, yet protected from premature public disclosure while the issues were still live. That would in my view cause them to express themselves in more guarded and less candid ways.
The public interest balance
Although not directly within the scope of my task in providing the qualified person’s opinion, I have considered the balance of the public interest. My view remains that the Council and the Information Commissioner struck the balance correctly.
In saying that, I fully recognise the public interest in transparency. I recognise that the Minutes, including the disputed information, would enhance the public’s understanding of how these important educational policy issues were discussed, and thus how the Council’s approach to these issues evolved through the input of bodies such as the JCC.
That said, there are other mechanisms for transparency and accountability on these sorts of issues which do not involve intruding upon the confidential safe space needed for candid deliberation on important and contentious evolving issues. For example, the Council has four Policy and Performance Committees that discharge the Council’s overview and scrutiny function. The Council has a Families and Wellbeing Policy and its Performance Committee is specifically responsible for the scrutiny of schools and educational matters. Reports and issues affecting schools/educational matters can and are considered by this Committee or by its sub-committee/panel. The Committee has the authority to establish specific ‘task and finish’ groups that focus on specific areas of work and report back their findings to the Committee for consideration.
In any event, my view is that the public interest in maintaining the exemption is significantly stronger in this context and by reference to the specific information in dispute. I have indicated that this information records genuinely candid deliberations
on important and difficult issues on which a range of strongly-held opinions is possible. It is extremely important that there is a safe space for airing these views confidentially among JCC members and with relevant Council officers, so that all views can be expressed in the most effective way, free of the fear of public scrutiny while the issues are still live and positions are not yet concluded. Without that safe space, the JCC’s effectiveness would be significantly undermined, and its benefit to the Council diluted. That would be to the detriment of the Council reaching
The issues addressed in the Minutes were of fundamental importance to the delivery of educational services. They are contentious, i.e. they admit of a range of opinions and are not straightforwardly factual. There is a very strong need for a safe space in which advice can be given and sought and views exchanged in free and frank terms. Without the space to be candid and honest without fear of premature public disclosure, the quality of debate and decision-making on issues relating to education services and reform would suffer significantly. There is weighty public interest in maintaining the section 36(2)(b) FOIA exemption so as to avert such risks.
The public interest in disclosure is in my view significantly weaker. I have indicated above that while the Council does recognise the importance of transparency, the public interest balance by reference to this specific information favours maintaining the exemption at this time.
I therefore respectfully invite the Tribunal on behalf of the Council to conclude that the disputed information is exempt from disclosure under FOIA.
I believe that the contents of this statement are true.
If you click on any of the buttons below, you’ll be doing me a favour by sharing this article with other people.