FOI request reveals Wirral Council issued 168 Fixed Penalty Notices (mainly for alleyway dumping)

FOI request reveals Wirral Council issued 168 Fixed Penalty Notices (mainly for alleyway dumping)

FOI request reveals Wirral Council issued 168 Fixed Penalty Notices (mainly for alleyway dumping)

                                                           

Wirral Council Environmental Streetscene Services Contract page 122 Schedule 2 - Nominees to the Partnering Agreements

Yesterday, Wirral Council responded to a Freedom of Information Act request I made last month for minutes of the meetings of the Partnering Board (which comprises of Wirral Council and Biffa Waste Services Limited) for the last year.

The minutes of the Partnering Board meetings of the 10th March 2015, 18th December 2014, 21st October 2014 and 14th July 2014 contain some interesting information.

Below are extracts from the minutes that hopefully will be of wider public/political interest starting with the meeting held on the 14th July 2014. I have submitted an internal review request to Wirral Council for the minutes without the names of Wirral Council employees redacted. RE stands for Roger Edwards, FPN stands for fixed penalty notices, MS stands for Mark Smith, Cllr BM for Councillor Bernie Mooney and VO stands for variation order.

2. ANNUAL REVIEW
….
Noted garden waste has now exceeded last year’s figure and hope to get to 40,000 properties. RE queried about incentives for signing up however XX noted we have to be very careful as the £5 reduction online has raised objections by some residents and opposition members and that XX is exploring alternative cost effective payment mechanisms. However, XX advised we can market to people who signed up last year who have not signed up this year and there are around 3,000 who have not re-signed.

Street Cleansing
….
The Entry Investigation Team has been introduced and 28 FPNs have been issued as a result of this.

7. AOB

Possible Industrial Action Update
RE updated that Biffa offered pay settlement to the workforce of 1.8% in line with RPI – the request from the workforce was 6%. RE advised the workforce have decided to ballot for industrial action before any decision made. RE is working hard to resolve this situation. The industrial action is planned for Fri 18 July.

There are parts of the minutes of the meeting held on the 21st October 2014 that will be of wider interest too:

Managing Down Demand – Missed Collections

XX have been looking at all the missed bin calls we had in for 2010-14 and the breakdown of unjustified (which was about half) to give an idea of the proportion of calls coming in. The 3 main reasons for unjustified bins are: bin not out, entry work and access issues. Disputes occur where resident is told the PDA said bin not out and they disagree. XX wants to look at the dispute figures and drill down i.e. is it the resident at fault, is it the crew not using the PDA properly etc. When a resident does not agree with PDA data this causes a lot of work in the back office. There could be an education issue here reminding residents that 7am is the time rounds start and the crews can come to roads at different times each week.

If we do some re-training around contamination to show the importance of the PDA and show the impact of not using the PDA correctly that should be beneficial. RE noted if we do not have confidence in the PDA data then everything else becomes difficult.”


Alleyway Dumping

XX advised had over 600 referrals for the Waste Investigate Unit (WIU) and issued 168 FPNs to mainly the Seacombe/Birkenhead areas. XX noted we need to do some work around where issuing the FPNs. 5 court cases regarding litter have gone well with the offenders being fined and this information is on the Council website. XX hoping to do full leaflet drop to relevant properties to say what we are doing and what success we have had. Currently drafting up a second leaflet to get out before Christmas to all terraced properties to highlight the good work we have been doing.

XX noted some new anti-social behaviour laws which are coming out and she is looking if we can go down this route with landlords. XX going to be looking at the licensing scheme and if we can make that work for us by adding in further conditions (Selective Licensing scheme). MS noted when speak to Senior Members of the Council enforcement is now an issue they are behind it. Noted 260 good neighbourhood packs have gone out to a variety of areas.”

From the meeting held on the 18th December 2014:

Alleyway Dumping

XX advised the Waste Investigation Unit are doing a fantastic job. XX noted an incident where a disgruntled member of the public, because of his threatening behavior, was issued with an ASBO. Main issue is the Courts are only letting us take 5 cases a week. Legal services need to approach the courts to get more time to hear more cases. XX plans to do another leaflet drop after Christmas to highlight to the public the financial costs of failing to manage their waste responsibly, or through ignoring fixed penalty charges. XX next steps are to meet the selective licensing team. Birkenhead and Seacombe have been identified as a selective licensing areas which means we can prescribe to landlords what they must do re bins and as Birkenhead and Seacombe are where the most is, it is hoped this will have a significant impact over time.”

Transparency Code

The code is about being more transparent about what we publish for the public to see and waste collection is one of the things requiring more details including publishing a version of the contract. XX are going to look at refreshing the contract, redacting certain bits and then send to Biffa to consider. Agreed a good idea would be a half day session with both parties to look at updating and modernizing the contract.”

Finally from the meeting held on the 10th March 2015.

Action Log

50 Street Cleansing Transitional Money

MS advised there is £116,000 available. XX is currently working on a briefing note recommending how that money could be used. MS has the authority to spend this money however he would get endorsement from Cllr BM first.

64 Benchmarking Data

XX advised some of the information required is deemed as commercially sensitive and there is a strong reluctance to share this information at the moment. MS felt we do need to be getting to a stage where we have the mechanism in place to demonstrate value for money from this contract. XX also safeguard the financial position of Biffa. XX to send through further details to XX & SC showing exactly what it is we are looking for.

67. Contract under the Transparency Code

XX has started this piece of work. By the end of April we have to publish the contract on Council website. XX noted his intention to incorporate the VOs and XX send to Biffa to redact the finance. XX commented that there are inaccuracies in the contract in relation to execution on the ground but nothing of serious concern. MS noted as we are signing off a significant VO if there are any anomalies we need to resolve them before we publish.

CONTRACT PERFORMANCE OVERVIEW

SC queried whether there had been any thought about the garden waste service passing to Biffa? MS advised if Biffa want to put an offer to the Council formally they were welcome to.

If you click on any of the buttons below, you’ll be doing me a favour by sharing this article with other people.

Incredible: Why did ICO find Wirral Council twice broke the law by taking too long to reply to 2 requests?

Incredible: Why did ICO find Wirral Council twice broke the law by taking too long to reply to 2 requests?

Incredible: Why did ICO find Wirral Council twice broke the law by taking too long to reply to 2 requests?

                                                                  

ICO Information Commissioner's Office logo
ICO Information Commissioner’s Office logo

A bit like the experience I had recently of waiting ages for a bus in Liverpool recently, only for four buses back to back to turn up, the Information Commissioner’s Office have in the last fortnight issued two decision notices involving FOI requests to Wirral Council.

There is a small delay in decision notices being published on ICO’s website, but the first (FS50576394) involving a request I made that was considered under the Environmental Information Regulations can be viewed here. I previously wrote about Wirral Council’s U-turn about disclosing information in response to this request back in May.

The decision notice states “As the information was disclosed outside the 20 working day timescale the Commissioner has concluded that the Council breached the requirements of regulation 5(2). ”

I made the request on the 26th January 2015. Wirral Council ignored my request, so on the 24th February 2015 I requested an internal review. Wirral Council responded to the internal review on the 23rd March 2015 stating it had the information but was withholding it based on a regulation 12(5)(e) exemption.

For those who don’t know what a regulation 12(5)(e) exemption is it’s:

(5) For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that its disclosure would adversely affect

(e) the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest;

I appealed this to the Information Commissioner’s Office on the 25th March 2015 and on the 11th May 2015 Wirral Council did a U-turn stating (you can view the exchanges between myself and Wirral Council on the whatdotheyknow website):

“Following your complaint to the Information Commissioner’s Office, the Council has decided to reverse its position, having previously relied on the exception contained in Regulation 12 (5) (e) of the Environmental Information Regulations 2004. I do not consider that releasing the information would now adversely affect the legitimate economic interest of a third party. The address of the property, which you have requested is 13 Thorneycroft Street, Birkenhead. I have copied this response to the Information Commissioner’s Office.”


As mentioned in my opening sentence, I’m also aware of a decision notice involving a Freedom of Information request that’s been issued recently that hasn’t yet been published on ICO’s website.

This decision notice (FS50568736) (which is not about a FOI request I’ve made) relates to the lack of response by Wirral Council to this FOI request made by Paul Cardin here.

This decision notice states:

“2. The Commissioner’s decision is that the Council has breached section 10(1) of FOIA by failing to respond to the request.

3. The Commissioner requires the public authority to take the following steps to ensure compliance with the legislation.

  • The Council should inform the complainant whether the requested information is held. If the information is held it should provide it to the complainant or else issue a refusal notice in accordance with section 17 of FOIA.
4. The public authority must take these steps within 35 calendar days of the date of this Decision Notice. Failure to comply may result in the Commissioner making written certification of this fact to the High Court (or the Court of Session in Scotland) pursuant to section 54 of the Act and may be dealt with as a contempt of court.”

and

“9. On receipt of the complaint the Commissioner contacted the Council to remind it of its duty to respond to requests for information within 20 working days and to ask that it respond to the complainant. Neither the complainant nor the Commissioner received a response.”

as well as

“11. The complainant made his request for information to the Council on 6 May 2014 but has failed to receive a response. The Council has clearly exceeded the 20 working day limit very significantly and therefore the Commissioner has found that the Council breached section 10(1) in its handling of the request.”

Certainly the common theme running through the two decision notices is Wirral Council exceeding the time limits in the legislation on responding to requests.

If you click on any of the buttons below, you’ll be doing me a favour by sharing this article with other people.

Wirral Council take over 19 months to respond to FOI request on Birkenhead Park and other matters

Wirral Council take over 19 months to respond to FOI request on Birkenhead Park and other matters

Wirral Council take over 19 months to respond to FOI request on Birkenhead Park and other matters

                                        

Please accept YouTube cookies to play this video. By accepting you will be accessing content from YouTube, a service provided by an external third party.

YouTube privacy policy

If you accept this notice, your choice will be saved and the page will refresh.

Birkenhead Park as it was in 2007.

Birkenhead Park in 2007 copyright John Brace
Birkenhead Park in 2007 copyright John Brace

I feel a bit sorry for Wirral Council’s legal department who seem to have given me the longest response to one of my FOI requests to Wirral Council ever which is in response to this ICO decision notice and a FOI request I made on 29th March 2013.

I’m beginning to think I should look for sponsorship from a black marker pen manufacturer as even the minutes they have supplied have been heavily redacted. Below is an example of set of minutes I’ve finally received, which is the minutes of the Birkenhead Park Advisory Committee meeting of the 17th October 2012. I think over 19 months is a record by Wirral Council for responding to one of my FOI requests.

Birkenhead Park Advisory Committee
Minutes of meeting 17th October 2012

Attendance
Chair: Cllr George Davies
Councillors: Cllr Denise Roberts, Cllr David Elderton, Cllr Cherry Povall, Cllr Stuart Kelly, Cllr Jean Stapleton, Cllr Alan Brighouse
Members: XXXXXXXXXXXX
Wirral Council Officers: XXXXXXXXXXXX XXXXXXXXXXXX XXXXXXXXXXXX XXXXXXXXXXXX

Item 1 Apologies
Cllr Brian Kenny, Insp Roy McGregor, XXXXXXXXXXXX XXXXXXXXXXXX

Item 2 Minutes of previous meeting
The minutes were accepted as a true record.

Item 3 Matters arising
Cllr Elderton raised an issue over traffic calming measures.
XXXXXXXXXXXX confirmed signage for the advisory speed limit had been approved by the Conservation Officer.
There was then a question over funding for the above and a request for legal advice on how this advisory speed limit could be made enforceable.

Item 4 Park Manager’s Report
XXXXXXXXXXXX reported the fall in the number of school visits and suggested possible reasons for it, including poor weather and the closure of two schools which regularly visited the park.
Cllr Stapleton asked why such small numbers from University Academy.
XXXXXXXXXXXX suggested the loss of the education officer has affected contact.
XXXXXXXXXXXX suggested a possible role for a volunteer to contact schools and encourage visits.

XXXXXXXXXXXX reported that the work experience programme was a real success as was the Physical Activities programme.
XXXXXXXXXXXX suggested that income from commercial activities could help with finances.
XXXXXXXXXXXX said an increase was required in commercial operations.
XXXXXXXXXXXX predicted that this will increase.

XXXXXXXXXXXX reported to the group regarding the park’s drainage.
It was agreed by all that exceptional weather this year had caused flooding and was unavoidable.

XXXXXXXXXXXX the Events Arena could take surplus water which will also enhance biodiversity.

XXXXXXXXXXXX referred to the increase in concreting over gardens which doesn’t allow the water to drain and thereby causes increased flooding.

XXXXXXXXXXXX reported on underground water tank proposed by United Utilities because of flooding to basements in Park Road South.
XXXXXXXXXXXX said there was a potential revenue asset from development of remaining plots in the park, and the United Utilities proposal to build a storage tank on the plot by Gothic Lodge would make this asset difficult to sell.

Cllr George Davies reported that the ESWA club was closing down and the building was for sale.
XXXXXXXXXXXX asked if the park could make use of the area.
Cllr George Davies suggested keeping eye on developments.

XXXXXXXXXXXX reported the launch of the Park Watch scheme, adding that members were being recruited before calling the first (inaugural) meeting.

XXXXXXXXXXXX gave a report on IRIMS Incident Reporting and Management System, saying there were some “glitches” remaining but it should be up and running in a couple of months.

XXXXXXXXXXXX reported on the new Dog Control Order being proposed to exclude dogs from all children’s play areas in Wirral. He also reported on the possibility of a further Dog Control Order requiring an owner to put a dog on lead if requested, currently the byelaws state only that the dog must be under control.
Cllr Elderton suggested publicising the result of any further action after the event be recorded.
XXXXXXXXXXXX expressed his concern at the nature and number of dog related incidents, suggesting the voluntary code of conduct was no good.

XXXXXXXXXXXX updated the group on the success of the Forest Schools initiative.

Item 5 Membership of Birkenhead Park Advisory Committee
Cllr George Davies requested to expand group to take in the councillor with cabinet responsibility for Cultural Services. This was agreed by all.

Item 6 Any Other Business
XXXXXXXXXXXX suggested an opportunity for external funding for restoration of the Jackson Memorial, Bandstand, Conservatory and Horticultural Training.
XXXXXXXXXXXX suggested that the Friends of Birkenhead Park be invited to submit a report to a future meeting.

Item 7 Date of Next Meeting
It was agreed to meet in Mid April 2013.

If you click on any of these buttons below, you’ll be doing me a favour by sharing this article with other people. Thanks:

Biffa asks Wirral’s Cabinet for a 10 year extension to bins & street cleaning contract worth at least £120 million

Biffa asks Wirral’s Cabinet for a 10 year extension to bins & street cleaning contract worth at least £120 million

Biffa asks Wirral’s Cabinet for a 10 year extension to bins & street cleaning contract worth at least £120 million

                                                      

Biffa Waste Service Limited November 2013 Invoice Wirral Council £1036840.28
Biffa Waste Service Limited November 2013 Invoice Wirral Council £1036840.28
Biffa Waste Service Limited December 2013 Invoice Wirral Council £1032201.28
Biffa Waste Service Limited December 2013 Invoice Wirral Council £1032201.28
Biffa Waste Service Limited January 2014 Invoice Wirral Council £1032201.28
Biffa Waste Service Limited January 2014 Invoice Wirral Council £1032201.28

Above are three of the recent monthly invoices to Wirral Council from Biffa Waste Services Limited for November 2013 (£1,036,840.28), December 2013 (£1,032,201.28) and January 2014 (£1,032,201.28).

I did not request the invoices for other months during that financial year (2013/14), but I would assume that the other nine are for similar amounts of around a million pounds. So why am I writing about this and what does Biffa Waste Services Limited actually do for it’s ~£12 million it receives each year from the taxpayer?

Well as shown on the invoices it’s for collecting the bins, cleaning the streets and extra amounts for working on a Bank Holiday. I’ll be looking more closely at the current contract with Biffa Waste Services Limited (which runs to 2017) tomorrow morning (if all goes well).

However there is some political news on the Biffa front, in fact Wirral Council seems to be bolstering itself for a bit of bad press coverage judging by the Cabinet papers for tonight’s Cabinet meeting (only tonight if you happen to reading this on the 11th September 2014).

If you’re interested in reading the papers yourself on Wirral Council’s website, it’s the Streetscene Environment Services Contract Extension item which is item 4 on Cabinet’s agenda.

I remember Mark Smith (a Wirral Council officer who is Head of Environment and Regulation) getting a grilling by the Chair (Rt Hon Frank Field MP) at a recent Birkenhead Constituency Committee meeting about what the Rt Hon Frank Field MP seemed to see as a lack of openness and transparency in the area of how Wirral Council manages the Biffa contract.

In the Rt Hon Frank Field MP’s view (from my memory of the meeting) he wanted (rather reasonably some might say) to know exactly what the public were getting for the ~£12 million a year that the taxpayer pays Biffa Waste Services Limited through Wirral Council. Sadly there was no one present at the meeting to answer for Biffa Waste Services Limited and Mark Smith seemed to struggle a little to give the kind of answers that Rt Hon Frank Field MP seemed to want to hear. However moving on from the frustrations of Birkenhead’s MP/Chair of the Birkenhead Constituency Committee to more local politics (although isn’t all politics local)?

Rather helpfully Appendix 5 to the Streetscene Environment Services Contract Extension item contains the following two entries on the risk register (copied below):

Risk No Description of risk Risk category Risk Owner Gross likelihood Score Gross impact score Total Gross Score Net Likelihood Score Net Impact Score Total Net Score Proposed Controls Responsibility Target date RAG Status
1 District Audit scrutiny on decision process likely Legal / Regulatory Tara Dumas 3 4 12 3 2 6 Member decision based on thorough analysis of risks. Best value comparison work to be undertaken – Local benchmarking plus APSE/Audit commission comparison Update on market position sought from previous consultants contracted to review Biffa contract. Process to be reviewed by internal audit TD
TD
TD
MGa
07/07/14
completed
07/07/14
07/07/14
G
C
G
G
2 Negative political and
media attention
Political/societal PR team – Kathryn Green 5 3 15 3 2 6 Proactive approach by PR with press releases Confirm offer not linked to service/workforce changes LF Post decision 31/5/2014 G
C

In other words, Wirral Council know (before any decision is formally made tonight to enter into negotiations) that it will cause all kinds of trouble. They’ve already decided (it seems) on a public relations line of telling the press it won’t lead to job losses/workforce changes and giving them the “gift” of a press release in the hope that most of the media will just print the press release more or less verbatim and not ask too many awkward questions about the matter.

They even know their external auditor (Grant Thornton) will be asking them a whole bunch of questions to do with it too but surprisingly there are even bigger risks than the media and Wirral Council’s auditors to tackle, although read the risk register at appendix 5 and hopefully you’ll see what I mean.

So how can I sum up what is proposed to be decided tonight quickly? The current contract will Biffa Waste Services Limited will end on March 2017.

The impression I get from reading between the lines of the Cabinet papers, (a lot of the detail has been kept deliberately secret by officers who are recommending to politicians to keep it secret too on grounds of commercial confidentiality) is that Biffa Waste Services Limited seemed to be somewhat concerned that if their multi-million pound 11 year contract ends on March 2017, that they would have to bid in a competitive tender against other companies and organisations for the new contract.

There’s then uncertainty (from Biffa’s perspective) over whether they would end up being the successful bidder or not. It’s called “competition” and is generally required for such large multi-million pound contracts because of all kinds of laws I won’t go into at this point and competition is therefore required for a whole bunch of good reasons.

So someone as Biffa Waste Services Limited has read through the contract they have with Wirral Council and found a caveat. There was a part in the contract that could extend it a further ten years (current prices of ~£12 million a year but yearly increases and variation are usually built-in). This contract covers “all household waste and recycling collections, street cleansing and fly tip removal, waste collection from schools and council offices and wheeled bin deliveries.”

All Biffa had to do to get a further ten years (at ~£12 million a year) was make a formal offer to Wirral Council (which they did) and have this agreed to by Wirral Council (which hasn’t happened yet with the earliest date expected being October 2014).

Due to the size of the amounts involved it has to be a decision made by politicians, specifically Wirral Council’s Cabinet and the councillor with responsibility for this area is the new(ish) Cabinet Member for Environment and Sustainability Councillor Bernie Mooney (who replaced Brian Kenny earlier this year when he lost an election in May to the Green Party councillor Pat Cleary).

However what’s in the currently exempt appendices?

Well appendix 1 covers the “value and suggested terms of the formal offer from Biffa in return for the Council extending the contract to 2027. In summary the proposal offers the Council a one-off saving split between 2014/15, 2015/16 and 2016/17 followed by a continued annual reduction in the core contract price throughout the remainder of the extended contract period to the equivalent value. Officers asked Biffa to clarify the benefits to Biffa if the contract extension was agreed.”

I’m not allowed to link to appendix 1 (as it’s currently a big secret and you’d get an “access denied” type message from Wirral Council’s website if I did), but as the language used by a Wirral Council officer is rather opaque, it has to boil down to how I imagine a summary of what Biffa offered Wirral Council … “give us a further ten years and we will give you very good price if you pick us. Our price is very reasonable, many savings to be had, very good price, you buy from us again we treat you well. We are very good supplier and will take your bins to tip and keep streets clean for another 10 years for a very reasonable price.”

Wirral Council officers asked Biffa to clarify what Biffa would get out of extending the contract a further ten years.

Biffa responded to this on the 10th February 2014. Again I’m not allowed to show you Biffa’s response either on the instructions of Wirral Council officers!

The summary of this response is again in rather opaque language “Biffa indicated that the savings they could offer arose from avoiding future procurement and mobilisation costs, the ability to re-finance their operations and a reduction in overheads due to the stable nature of the contract. The discount is not linked to any service changes.”

In other words Biffa are saying “grant us a monopoly, save us the cost of having to retender for the contract in 2017, Wirral Council will save money from having to retender the contract” (which is a bit of a debatable point really anyway considering the extra costs this will cause doing it this way) “and Biffa will be able to borrow money cheaper because we’ll have a longer contract.” To be honest I don’t agree entirely with Biffa’s point about overheads being significantly lower to justify this.

Another letter from Biffa (exempt appendix 3) is also currently being kept secret by Wirral Council officers (pending a decision by politicians). This letter is about an offer to redesign the fleet of bin lorries from 2017 to collect things such as food waste (to meet Wirral Council’s recycling targets).

However Biffa make it clear that this is absolutely Biffa’s final offer (well unless Wirral Council’s Cabinet say no to negotiations or no to the offer in October 2014 and Biffa have to bid for the new contract starting in 2017)!

Wirral Council officers seem very keen to have the Labour councillors on Wirral Council’s Cabinet agree to Biffa’s plan. “80p cheaper per a Wirral person than Liverpool” they state in the report, but strangely 15p more per a person than in Sefton!

Of course Wirral Council’s Cabinet could just choose to reject Biffa’s proposal and decide to bring the service in-house from 2017.

The recent street cleansing cuts to the contract, have been the source of both political and media attention in the recent past. However, what’s the officer’s recommendation?

Oh and before I get to that, Wirral Council asked Eunomia (are they consultants?) in 2012 to look at the Biffa contract, the consultants in fact suggested the contract should be retendered! Eunomia also suggested that if Wirral Council did agree to extend the contract by a further ten years than there should be changes to “contract clauses relating to indexation, labour cost inflation and future efficiency gains” which would be extremely sensible to do considering the current contract is linked to RPI (and let’s face it inflation is quite high)! However the Eunomia assessment is now two years out of date and things have changed somewhat since then.

As Wirral Council officers freely admit in 5.3.4 of this report, they don’t really know if this will save any money at all versus retendering the contract, it all just seems to be educated guesswork and unknown quantities.

The estimated savings have been listed, but surprisingly (and isn’t this usually the case?) not the increased costs (such as an increased audit bill from Grant Thornton for extra work).

It’s the report gets to “legal implications” that things start to get interesting!

Here’s a quote from 10.2 “The Legal colleagues have highlighted that it is necessary to limit the amount of material changes to the contract in order to minimise the risk of the Council being challenged on the legalities of the extension.”

In other words, do it right otherwise one of Biffa’s competitors, or in fact anyone could sue Wirral Council over how it was done.

Then entering into catch 22 territory the legal advice continues:

“Due consideration has been given to establishing whether the Biffa proposal offers Value for Money (Sections 4 and 5 refers) as required under the Council’s Contract Procedure Rules. However, it is important to note that the only decisive way to determine whether a more advantageous contract could be secured by the Council would be through retendering the contract.”

In other words, Wirral Council don’t know whether this saves them money without retendering the contract in 2017, but if they agree to Biffa’s proposal they won’t be retendering the contract in 2017 so they’ll never really know or be able to prove “value for money” to their external auditors Grant Thornton.

However let’s see, what do officers want? They want politicians to agree to them to enter into negotiations with Biffa, more specifically the Strategic Director of Regeneration and Environment (currently Kevin Adderley) and then report back to Cabinet no later than October 2014.

Personally (and this is just an opinion) I think politicians on the Cabinet will probably agree to enter into negotiations with Biffa tonight (even though Labour’s tendency in the past has been to bring back services in-house), if only just to keep their options open in October 2014. Quite what the Rt Hon Frank Field MP’s views on this latest development in the Biffa saga are at the time of writing unknown.

Coming up next today: What Wirral Council’s Cabinet is planning to do about Children’s Centres.

If you click on any of these buttons below, you’ll be doing me a favour by sharing this article with other people. Thanks:

ICO issues decision notice stating Wirral Council breached 4 laws in how it handled a FOI request

ICO issues decision notice stating Wirral Council breached 4 laws in how it handled a FOI request

ICO issues decision notice stating Wirral Council breached 4 laws in how it handled a FOI request

 

Ed – 19/9/14 – ICO have uploaded the decision notice (FS50509081) to their website.

Received through the post today from the Information Commissioner’s Office (ICO) was the result of an appeal to them of an internal review of Wirral Council’s dated 30th July 2013 which related to a request made by myself on the 29th March 2013.

The whole decision goes on for nine A4 pages (plus one page accompanying letter from ICO). It’s not been published yet on ICO’s website but will be in the near future. Wirral Council (and myself) have 28 days from the date of the decision made on the 8th September 2014 to make our minds up as to whether either or both parties wishes to appeal this decision notice to the First Tier Tribunal (Information Rights).

Below is the text of the decision notice (but not the accompanying one page letter).

Reference: FS50509081

ICO Information Commissioner's Office logo
ICO Information Commissioner’s Office logo

Freedom of Information Act 2000 (FOIA)

Decision notice

Date: 8 September 2014
Public Authority: Wirral Metropolitan Borough Council
Address: Wallasey Town Hall
Brighton Street
Wallasey
Wirral
CH44 8ED
Complainant Mr John Brace
Address Jenmaleo
134 Boundary Road
Bidston
Wirral
CH43 7PH

Decision (including any steps ordered)

———————————————————————————————————————-
1. The complainant has requested information from Wirral Metropolitan Borough Council (“the council”) about the last minuted meetings that were held by 24 different committees. The council refused to comply with the requests on the basis that to do so would exceed the appropriate limit in costs set by section 12(1) Freedom of Information Act (“the FOIA”), and would be manifestly unreasonable under regulation 12(4)(b) of the Environmental Information Regulations (“the EIR”).

2. The Commissioner’s decision is that the council has failed to provide sufficient evidence for the application of section 12(1) of the FOIA and regulation 12(4)(b) of the EIR, and has breached the requirement of section 16(1) of the FOIA and regulation 9(1) of the EIR by failing to provide advice and assistance to the complainant. The council has further breached section 10(1) of the FOIA and regulation 5(2) of the EIR failing to respond to the request within 20 working days.

3. The Commissioner requires the council to take the following steps to ensure compliance with the legislation:

  • Issue a response to the complainant’s request that does not rely upon section 12(1) of the FOIA or regulation 12(4)(b) of the EIR.
  • Provide advice and assistance to the complainant about which of the requested information is held by the council, and therefore falls under the terms of the FOIA or EIR.

4. The council must take these steps within 35 calendar days of the date of this decision notice. Failure to comply may result in the Commissioner making written certification of that fact to the High Court pursuant to section 54 of the FOIA and may be dealt with as a contempt of court.

Request and response
———————————————————————————————————————-
5. On 29 March 2013, the complainant wrote to the council and requested the following:

“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”

6. The council responded on 30 April 2013 and refused the requests under section 12(1) of the FOIA, but advised the information sought by request 12 was available on the council’s webpages.

7. The council provided an internal review on 30 July 2013 in which it revised its position and refused the requests under section 14(1), and further advised that the information sought by request 13 was available on the council’s webpages.

Scope of the case
———————————————————————————————————————-
8. The complainant contacted the Commissioner on 14 August 2013 to contest the council’s response.

9. Following the Commissioner writing to the council on 10 February 2014, the council further revised its position on 19 June 2014 and refused the requests under section 12(1) of the FOIA and regulation 12(4)(b) of the EIR. The complainant subsequently advised the Commissioner that he wished to contest this new position.

10. The Commissioner has identified that the information sought by requests 12 and 13 is available on the council’s webpages. This was confirmed in the council’s initial response and subsequent internal review. The complainant has subsequently confirmed to the Commissioner that he accepts that this information is already publically available, and only wishes to contest the council’s response in respect of the remaining 24 requests.

11. The Commissioner therefore considers that the scope of this case is the determination of whether the council’s refusal under section 12(1) of the FOIA and regulation 12(4)(b) is correct.

Reasons for decision
———————————————————————————————————————-
Is part of the requested information environmental?

12. Information is “environmental” if it meets the definition set out in regulation 2 of the EIR. Environmental information must be considered for disclosure under the terms of the EIR. In the circumstances of this case, the Commissioner does not have sight of the requested information, but has identified that part of it derives from committees that are responsible for environmental matters, including climate change and local parkland. As such, the Commissioner considers it highly likely part of the requested information that derives from those committees would be environmental information as defined by regulation 2 of the EIR.

Section 12 (FOIA) and regulation 12(4)(b)(EIR) – Cost of compliance

13. Section 12(1) of the FOIA states that:

Section 1(1) does not oblige a public authority to comply with a request for information if the authority estimates that the cost of complying with the request would exceed the appropriate limit.

14. The Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 (“the Fees Regulations”) sets the appropriate limit at £450 for the public authority in question. Under the Fees Regulations, a public authority may charge a maximum of £25 per hour for work undertaken to comply with a request. This equates to 18 hours work in accordance with the appropriate limit set out above.

15. A public authority is only required to provide a reasonable estimate or breakdown of costs and in putting together its estimate it can take the following processes into consideration:

  • determining whether it holds the information;
  • locating the information, or a document which may contain the information;
  • retrieving the information, or a document which may contain the information; and
  • extracting the information from a document containing it.

16. The EIR do not have a provision where a request can be refused if the cost of complying with it would exceed a particular cost limit. Rather the EIR contain an exception, namely regulation 12(4)(b), which the public authority can rely on to refuse a request if they consider it to be ‘manifestly unreasonable’ on the basis that the cost of compliance with the request would be too great.

17. Although the Fees Regulations are not directly applicable to the EIR, in the Commissioner’s view they can provide a useful point of reference when public authorities argue that complying with a request would incur an unreasonable cost and therefore could be refused on the basis of regulation 12(4)(b).

18. However, there are additional factors that should always be considered in assessing whether the costs of complying with a request for environmental information are manifestly unreasonable, in particular the proportion of burden on the public authority’s workload (taking into consideration the size of the public authority), and the individual circumstances of the case (including the nature of the information requested and the importance of the issue at stake). In additional to these factors, regulation 12(4)(b) is also subject to a public interest test.

Can the requests be aggregated?

19. In cases were a single piece of correspondence contains multiple requests for information, the Commissioner’s position is that each request is separate. This was confirmed by the Information Tribunal in the case of Fitzsimmons v Information Commissioner and the Department for Culture, Media and Sport (EA/2007/0124).

20. Under the Fees Regulations, public authorities can aggregate the cost of complying with requests if they ‘relate, to any extent’, to the same or similar information’. The Commissioner interprets this phrase broadly, and considers that providing there is an overarching theme or subject matter that connects the requests, the cost of compliance with each request can be aggregated.

21. In the circumstances of this case the Commissioner has reviewed the correspondence in which the complainant requested information, and has identified that it contains 24 numbered requests for specific information. The complainant has advised the Commissioner that he has made these requests for the purpose of ensuring transparency on the part of councillors who have taken part in committees. The Commissioner is therefore satisfied that the requests are connected through an overarching theme, and that the cost of compliance can therefore be aggregated.

Can the requests spanning different access regimes be aggregated?

22. It is the Commissioner’s position that when considering the cost of compliance under section 12(1) of the FOIA or regulation 12(4)(b) of the EIR, requests that clearly fall under one access regime cannot be aggregated with those that fall under the other.

23. However, when an individual request is likely to span both access regimes, then the Commissioner recognises that the initial collation of the information will incur costs before the information can be subsequently assessed to decide which access regime applies. As such, the Commissioner considers it appropriate to consider the costs of such collation under the FOIA.

24. In the circumstances of this case, the Commissioner considers it highly likely that the information sought in requests 20, 21, and 22 will include environmental information (such as that relating to the environmental remit of the committee), and non-environmental information (such as that relating to the administration of the committee). The Commissioner is therefore satisfied that it is appropriate to consider the initial collation of any held information under the FOIA.

Does the aggregated cost of compliance exceed the appropriate limit?

25. The council’s position is that the combined costs of identifying whether the information is held in response to the 24 requests, in conjunction with any ensuing costs of locating and retrieving the information, would exceed the appropriate limit of 18 hours.

26. The council has explained to the Commissioner that the requests cover a broad range of committees, many of which are advisory in nature, and have minutes that are not electronically available through the information system that the council uses to manage its committees. The council has also suggested that due to many of the committees being advisory in nature, they may not subject to the terms of the FOIA or EIR.

27. The Commissioner, in reviewing the content of the council’s response, has identified that it has not provided the results of any sampling exercise, nor has it provided a detailed time or cost estimate to support its position that the cost of compliance would exceed the appropriate limit.

28. The Commissioner has further identified that whilst committee minutes may not be directly retrievable through the normal information system that the council uses to administrate committee minutes, he considers it reasonable to consider that the information would still be contained within a relevant filling system, either manual or electronic, which would allow the council to both identify whether the information was held, and take steps to collate it.

29. The Commissioner also considers that the council’s position that a proportion of the committees are not subject to the FOIA or EIR, further weakens the council’s grounds for refusal. Should specific committees not fall under the council’s responsibility, this would suggest to the Commissioner that the council’s compliance with the requests would only comprise meeting its duty to confirm or deny whether the information is held under section 1(1) of the FOIA or regulation 5(1) of the EIR.

30. Having considered the above factors, the Commissioner has concluded that the council has not provided sufficient evidence to support its refusal under section 12(1) of the FOIA and regulation 12(4)(b) of the EIR. As the Commissioner has concluded that regulation 12(4)(b) of the EIR is not engaged, he does not need to consider the required public interest test under regulation 12(1)(b).

Section 16 (FOIA) and regulation 9 (EIR) – Advice and assistance

31. Section 16(1) of the FOIA imposes an obligation on a public authority to provide advice and assistance to a person making a request, so far as it would be reasonable to do so. Section 16(2) states that a public authority is to be taken to have complied with the provisions in the Section 45 Code of Practice (“the Code of Practice”) in relation to the provision of advice and assistance.

32. Regulation 9(1) of the EIR likewise imposes an obligation on a public authority to advice and assistance to a person making a request, as far as it would be reasonable to do so.

33. In the circumstances of this case, the Commissioner has reviewed the council’s refusal dated 19 June 2014, does not consider that advice and assistance has taken place, despite the council refusing the request on the basis of cost. The Commissioner further considers that the council’s position that some of the relevant committees do not fall under the control of the council, suggests that advice and assistance about the extent of what information is held by the council could have been provided. Therefore, in respect of its revised position dated 19 June 2014, the council has breached section 16(1) of the FOIA and regulation 9(1) of the EIR.

Section 10(1) of the FOIA and regulations 5(2) of the EIR – Time for compliance

34. Section 10(1) of the FOIA and regulation 5(2) of the EIR requires that an information request should be responded to within 20 working days following the date of receipt. In this case a response was not provided until after that length of time. The council therefore breached section 10(1) of the FOIA and regulation 5(2) of the EIR.

35. Either party has the right of appeal against this decision notice to the First-tier Tribunal (Information Rights). Information about the appeals process may be obtained from:

First-tier Tribunal (Information Rights)
GRC & GRP Tribunals,
PO Box 9300,
LEICESTER,
LE1 8DJ

Tel: 0300 1234504
Fax: 0870 739 5836
Email: GRC@hmcts.gsi.gov.uk
Website: www.justice.gov.uk/tribunals/general-regulatory-chamber

36. If you wish to appeal against a decision notice, you can obtain information on how to appeal along with the relevant forms from the Information Tribunal website.

37. Any Notice of Appeal should be served on the Tribunal within 28 (calendar) days of the date on which this decision notice is sent.

Signed (signature of Andrew White)
Andrew White
Group Manager
Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF

If you click on any of these buttons below, you’ll be doing me a favour by sharing this article with other people. Thanks: