Why is Liverpool City Council not complying with ICO decision notice FS50591795?

Why is Liverpool City Council not complying with ICO decision notice FS50591795?                                                       A long time ago I made a FOI request to Liverpool City Council that resulted in ICO decision notice FS50591795 dated the 1st February 2016. As it states in paragraphs 3 and 4 of that decision notice: “3. The Commissioner requires the … Continue reading “Why is Liverpool City Council not complying with ICO decision notice FS50591795?”

Why is Liverpool City Council not complying with ICO decision notice FS50591795?

                                                     

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

A long time ago I made a FOI request to Liverpool City Council that resulted in ICO decision notice FS50591795 dated the 1st February 2016.

As it states in paragraphs 3 and 4 of that decision notice:

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

  • Issue a fresh response under the terms of the FOIA to the part of the complainant’s request that seeks copies of relevant invoices.

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 this fact to the High Court pursuant to section 54 of the Act and may be dealt with as a contempt of court.”

However 35 calendar days after the decision notice was yesterday and no “fresh response” has been issued.

You can see from yourself on the whatdotheyknow.com website that the last response received from Liverpool City Council was in June 2015.

So below is my response to Liverpool City Council’s Monitoring Officer about the lack of compliance with this decision notice.


To: "McLoughlin, Janette" <Jeanette.McLoughlin@liverpool.gov.uk>

Dear Janette McLoughlin,

I write to you in your capacity as Monitoring Officer for Liverpool City Council.

A copy of ICO decision notice FS50591795 issued on the 1st February 2016 is attached to this email for reference. Please note that this is an enforcement notice, see s.52 of the Freedom of Information Act 2000.

The enforcement notice states in paragraphs 3 and 4,

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

Issue a fresh response under the terms of the FOIA to the part of the complainant’s request that seeks copies of relevant invoices.

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 this fact to the High Court pursuant to section 54 of the Act and may be dealt with as a contempt of court.”

No fresh response has been issued within 35 calendar days of the decision notice.

Liverpool City Council has failed to comply with the decision notice, which is a breach of s.54(1)(a) of the Freedom of Information Act 2000.

Please could this matter be rectified as soon as possible.

As you are Liverpool City Council’s Monitoring Officer, I am also requesting that you write a report to the executive of Liverpool City Council (see s.5A of the Local Government and Housing Act 1989) as Liverpool City Council’s lack of response would appear to constitute a breach of the Freedom of Information Act 2000.

A report would be useful so that lessons were learnt and there isn’t a repeat of this in the future.

I will also be contacting the regulator (the Information Commissioner’s Office) today about this matter.

Yours sincerely,

John Brace

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What was the government’s response to the Independent Commission on Freedom of Information report?

What was the government’s response to the Independent Commission on Freedom of Information report?

                                                       

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ICO Information Commissioner’s Office logo

I will start this by declaring some interests in the area of freedom of information. I am the appellant in case EA/2016/0033 (which is a case with the First Tier Tribunal (Information Rights) involving decision notice FS50596346). A further case involving an appeal to the First Tier Tribunal (Information Rights) involving decision notice FER0592270 was put in the post on Monday, but is yet to be received by the Tribunal. There are also numerous ICO decision notices that have been issued about FOI requests I have made.

Yesterday the government published the final report of the Independent Commission on Freedom of Information and there is a ministerial written statement here about it.

Introducing new fees for FOI requests (above those that can be already charged) has been ruled out partly because this would lead to a reduction in FOI requests from the media and others.

The ministerial statement also refers to updated codes of practice published. Interestingly one of the requirements of this new code of practice will be for public authorities with a hundred or more full-time equivalent employees to publish detailed statistics on how they deal with FOI/EIR requests.

I presume this will be something similar to the quarterly reports issued by central government which give a detailed account of how FOI and EIR requests have been dealt with over that timescale.

As the ministerial statement states “The publication of such data not only provides accountability to the public, but allows the Information Commissioner to identify and target poorly performing public authorities more effectively.”

Certainly once the new code of practice is published, a new requirement on local government bodies to publish this detailed information will provide an insight into how FOI/EIR requests are dealt with.

There is also going to be revised guidance on the application of section 14(1) (vexatious or repeated requests). The ministerial statement states that they expect this only to be used in “rare cases” and that “the ‘vexatious’ designation is not an excuse to save public officials embarrassment from poor decisions or inappropriate spending of taxpayers’ money”.

There is also going to be consideration by the government of whether to include a requirement to publish expenses and benefits in kind received by senior public sector executives. It seems FOI requests have been made for these, but turned down on data protection grounds.

As I’m the Appellant in the Tribunal case EA/2016/0033 (which isn’t classed as “active” yet (as “active” in such cases is defined as from the point when a hearing date is set), I can reveal that the only major development in that case is that Wirral Metropolitan Borough Council has been added as a party to the appeal as second respondent (originally the case was just between myself and the Information Commissioner).

I’m still awaiting the Information Commissioner’s response (due by the 17th March 2016) and Wirral Council’s response is due not more than 21 days after they receive the Information Commissioner’s response.

Once the Information Commissioner responds and Wirral Metropolitan Borough Council responds to the Information Commissioner’s response, I have up to 14 days to respond to their responses.

The Tribunal have asked all parties to notify them of any dates they are not available between 6th June 2016 and 29th July 2016, so I presume a hearing date will be set on some day between those two dates.

I’ve also been sent a copy of the practice note on closed material in information rights cases.

I’m sure there are those that could comment better than me about a practice direction that leads to hearings discussing the secret information while one of the parties to the appeal is excluded (secret hearings) and a guide to keeping information secret from one of the parties to the case.

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What links FOI, ICO decision notice FS50591795, audit, a class A drug, barristers and Liverpool City Council?

What links FOI, ICO decision notice FS50591795, audit, a class A drug, barristers and Liverpool City Council?

                                           

There is a form of direct accountability during the audit of local councils when for a short period each year local government electors can inspect information about that financial year such as invoices and contracts.

Here is a legal reference to that right (Audit Commission Act 1998, s.15) which has been a direct form of democratic accountability that in one form or another has been around since Victorian times.

It’s tied in to rights of local government electors to ask questions of the external auditor (which for Wirral Council is Grant Thornton), to make objections to the accounts, to request public interest reports. After all how can you do all that without seeing the information in the first place?

It’s a form of direct democratic accountability.

Unlike making a freedom of information request (time limit of 18.5 hours) there is strictly very little legal limits on what can be requested (well apart from on the insular peninsula at Wirral Council where they have a habit of deliberately shifting the goalposts and coming up with bizarre interpretations of legislation to suit themselves). Last year I made requests under this audit legislation to Wirral Council, Liverpool City Council, Merseyside Waste Disposal Authority, Merseytravel and the Merseyside Fire and Rescue Authority.

The Liverpool City Council request was connected to an earlier FOI request and there’s been a recent decision notice issued in that matter on the 1st February 2016 which hasn’t been published yet by ICO.

Ironically ICO seemed to have met a stumbling block with Liverpool City Council on that one as they asked me for the information that I’d been refused under FOI (happy to oblige). This implies Liverpool City Council weren’t being entirely cooperative with ICO.

I’ve been sent a paper copy of the decision notice through the post, but it’s not published on ICO’s website yet. The reference is FS50591795. It’s a mercifully short eight pages and requires both Liverpool City Council to issue a fresh response with 35 days of 1st February 2016 (or appeal to the Tribunal) and states that Liverpool City Council breached s.10(1) of the Freedom of Information Act 2000. If anybody wants me to I can scan a copy in and publish it here.

Basically LCC’s arguments are that I’m being unfair to barristers by requesting invoices they’ve submitted to LCC. Because as we all know, the purpose of a self proclaimed "socialist" Council like Liverpool City Council is to stick up for downtrodden, oppressed groups on the margins of society like barristers!

Cllr Paul Brant (left) speaking at a recent public meeting of Liverpool City Council (11th November 2015)
Cllr Paul Brant (left) speaking at a recent public meeting of Liverpool City Council (11th November 2015)

Let’s take the example of one barrister (pictured above on the left), a barrister I might point out who is not the subject of the invoices I requested, but who is in addition to being a barrister, a Labour Liverpool City Council councillor called Cllr Paul Brant. He resigned as a councillor in 2013 (although has since been re-elected) after receiving a police caution for possession of a class A drug. He was also the subject of a The Bar Tribunals & Adjudication Service disciplinary tribunal.

Below are the details.

Defendant Paul Brant (Lincoln’s Inn)

Type of hearing 3 Person Disciplinary Tribunal

Panel members
Mr William Rhodri Davies QC (Chair)
Ms Pamela Mansell
Mr Mark West

Finding and sentence Reprimand.

Section of the code 301(a)(i)/901.7

Status Final
Date Friday 12 September 2014

This Tribunal was held in Private.

Here is a link to the outcome of the Paul Brant disciplinary hearing from which I quote,

"Details of Offence

Paul Brant engaged in conduct which was discreditable to a barrister contrary to paragraph 301(a)(i) of the Code of Conduct in that on a day between the 1st January 2013 and the 21st September 2013 he committed the criminal offence of being in possession of a controlled drug of class A contrary to The Misuse of Drugs Act 1971, for which offence on the 20th September 2013 he receive a simple caution."

It would be a conflict of interest for Cllr Paul Brant to do work for Liverpool City Council but according to his Chamber’s website he has been instructed to represent Wirral Council in the past (yes Wirral Leaks I can get trees into a story too!):

Jayne Spencer v Wirral Metropolitan Borough Council (2008); LTL 1/10/2008 (Highway liability claim, tree root in Port Sunlight conservation area causing personal injury – whether breach of duty. Mr Brant appeared successfully at first instance and on appeal).

This is an aside but I do remember one year during the audit, Wirral Council weren’t happy with me requesting the invoices for their legal invoices for these sorts of liability claims. “

However there should be some transparency as to who Liverpool City Council are paying! All Liverpool City Council councillors are responsible for budget matters including Cllr Paul Brant.

One of my arguments rejected by ICO was that there are laws regulating who can give legal advice. You can check whether a barrister has a current practising certificate here.

To give the example of Paul Brant above, it shows he works at Oriel Chambers and was subject to a disciplinary tribunal in September 2014 (the outcome of which is detailed above).

One of my other arguments to the regulator was that Liverpool City Council is under a legal obligation to publish the names of its suppliers for invoices over £500. In fact the guidance they’re required by law to follow specifically states that being self-employed (which is their argument surrounding barristers) doesn’t mean they can keep the suppliers’ name out of the public domain (but Liverpool City Council do).

The page on his Chambers’ website states he is "in a senior position in a large local authority" (meaning Liverpool City Council).

However the above legislation (surrounding rights of inspection, objection etc) during the audit was scrapped by the government. You can’t use it any more to do this after the 2014/15 financial year.

Instead for 2015/16 financial year onwards it’s been completely watered down.

Previously (apart from information about its own staff) local councils during the audit had to get permission from their external auditor if they wanted to withhold from inspection in the category of "personal information" (which was very narrowly defined). This was a safeguard to prevent public bodies abusing their powers.

Bear in mind however that each time the public body contacts their external auditor it increases what they’re charged.

This was a check and balance introduced by the last Labour government.

However this check and balance on misuses of power in local government was repealed (scrapped) by the last Coalition government (Conservative/Lib Dem).

Oh but there’s more!

There’s a rather infamous recent case (well infamous in those familiar with "citizen audit") where a local government elector called Shlomo Dowen requested (during this period each year during the audit) a waste management contract between Nottinghamshire County Council and Veolia ES Nottinghamshire Ltd.

The case reference is [2009] EWHC 2382 (Admin), [2010] PTSR 797, [2010] Env LR 12. Anyway interestingly at that stage a High Court Judge said Mr. Shlomo Dowen should be allowed to inspect and receive a copy of the contract (despite Veolia bringing a judicial review about it).

However Veolia weren’t happy at all by this (in fact if you read through the judgements in both cases you’ll find that even if Mr. Dowen was given the contract they wanted restrictions on him sharing it with other people) and brought an appeal in the Court of Appeal ([2010] EWCA Civ 1214, [2012] PTSR 185, [2010] UKHRR 1317, [2011] Eu LR 172). Veolia claimed that allowing Mr. Dowen to inspect/receive a copy of the contract would infringe that companies’ human rights.

I quote from part of that judgement, “I am not entirely convinced that English common law has always regarded the preservation of confidential information as a fundamental human right”.

Rix LJ, Etherton LJ, Jackson LJ upheld the appeal however.

The irony of all that was that Shlomo Dowen already had access to the information as Veolia’s lawyers did not seek a stay following the earlier judgment.

However the above is why an extra category of "commercial confidentiality" has now been added to s. 26(5) of the Local Audit and Accountability Act 2014.

Interestingly withholding information on grounds of commercial confidentiality, this is a quote from the legislation,

“(5) Information is protected on the grounds of commercial confidentiality if—

(a) its disclosure would prejudice commercial confidentiality, and

(b) there is no overriding public interest in favour of its disclosure.”

is subject to a public interest test.

However there are other changes on the horizon too. Previously the inspection period was 15 days (3 weeks assuming there are no holidays).

When that inspection period was published in a public notice in at least one newspaper in the area and on the public body’s website.

I only have until the end of the 2015/16 local government financial year to get up to speed on these changes as being the Editor here I’ll have to schedule time for responding to the public notices, arranging appointments to inspect, as well as spare capacity for dealing with the moaning of the public sector (example moan last year being, it’s been 7/8 years since someone did this!).

As Wirral Council was somewhat uncooperative last year over the size of my request (only responding to the 10% of it they didn’t deem to be particularly sensitive), I will be having internal discussions here on avenues that can be explored to either embarrass Wirral Council into legal compliance (by censure (not to say that always works) or take more formal action.

Weirdly some of the politician’s expenses that they refused me under the audit legislation and Cllr Adrian Jones refused to make an appointment for me to see, they released in response to a later FOI request.

Which just goes to show that if you ask for the same information three times from Wirral Council (audit rights, a politician, then FOI), you might finally get it! Obviously by the third time, it starts to get embarrassing and seems like they have something to hide. I really don’t like having to ask three times when once should be enough though!

Anyway what was going to be only a short article about local government, barristers, ICO, FOI and audit is now rather on the long side so I’ll draw this to a close and give you an opportunity to comment.

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After 2 years, 10 months and 3 ICO decision notices will Wirral Council finally provide a response to a FOI request about councillors?

After 2 years, 10 months and 3 ICO decision notices will Wirral Council finally provide a response to a FOI request about councillors?

                                                                            

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ICO Information Commissioner’s Office logo

Last week I received another decision notice from the Information Commissioner’s Office through the post about this freedom of information act request I made to Wirral Council on the 29th March 2013.

Yes it’s now 2016, but this request has already been the subject of decision notice FS50509081 (dated 8th September 2014) (9 pages) and decision notice FS50569254 (dated 29th July 2015) (13 pages).

This decision (decision notice FS50596346) dated the 25th January 2016 is 11 pages long.

Frankly, after two years and ten months of arguing over this request I doubt (although this is just my opinion) that either Wirral Council will want to appeal the decision to the First-tier Tribunal (Information Rights). Although one can never quite tell with Wirral Council.

Out of the remaining four parts to this request, Wirral Council released the minutes of the Safeguarding Reference Group meeting of the 19th April 2011 a fortnight before the decision notice is dated.

So the decision notice relates to minutes of a meeting of the Headteachers and Teachers Joint Consultative Committee, minutes of a meeting of the Members’ (Members’ means councillors) Training Steering Group and minutes of a meeting of the Members’ Equipment Steering Group.

All these committees met behind closed doors and had councillors appointed to them.

The information in the minutes of the meetings of the last two groups are about training of councillors, use of electronic equipment, developing the Council of the Future, spending, service delivery models and proposals for improvement and potential change.

Surjit Tour made the decisions that releasing this information would be "prejudicial to the effective conduct of public affairs". There’s a long bit of the decision notice that goes into ICO’s assessment of the public interest test. ICO disagrees with Surjit Tour with regards to two out of the three sets of minutes requested. ICO’s view is that the public interest test weighs in favour of disclosure of the minutes of the Members’ Training Steering Group and minutes of the meeting of the Members’ Equipment Steering Group.

They do however agree with Surjit Tour over the minutes of the Headteachers’ and Teacher’s Joint Consultative Committee, although I’ll point out I find their arguments over a "chilling effect" over what was said at a meeting three years ago rather strange!

Below I include a copy of the decision notice (above is a summary). Although it states I didn’t submit public interest arguments, I did in a document marked "reasons for appeal" (in fact I have an email from the case officer referring to it). However the reasons for appeal have seemingly either not been read or ignored by the person writing the decision notice.

The result of the decision notice is that Wirral Council (or I) can appeal the decision within 28 days of the decision notice to the First-tier Tribunal (Information Rights) or if the decision is accepted they have to respond by providing the minutes relating to the meetings of the Members’ Training Steering Group and of the Members’ Equipment Steering Group within 35 days.

A copy of the text of the decision notice is below (although there may be some minor formatting changes between this web version and the print version). Edited on 15/2/2016 The decision notice (FS50593646) has now been published on ICO’s website.


Reference: FS50596346

Freedom of Information Act 2000 (FOIA)

Decision notice

Date: 25 January 2016

Public Authority: Wirral Metropolitan Borough Council
Address: Wallasey Town Hall
Brighton Street
Wallasey
Wirral
CH44 8ED

Complainant: John Brace

Address: Jenmaleo
134 Boundary Road
Bidston
Wirral
CH43 7PH

Decision (including any steps ordered)



1. The complaint concerns a request for the minutes of three separate committee meetings. Wirral Metropolitan Borough Council (‘the Council’) has refused to release this information. The Council says it is exempt under section 36 of the FOIA (prejudice to the effective conduct of public affairs) and that the public interest favours the information being withheld.

2. The Commissioner’s decision is that sections 36(2)(b)(i) and (ii) have been correctly applied to the requested information and that the public interest favours withholding some of the information (item 15). However he finds that the public interest favours releasing the remainder of the information.

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

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Reference: FS50596346

4. The public authority must take this step 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 pursuant to section 54 of the Act and may be dealt with as a contempt of court.

Background


5. The request that is the subject of this notice has been subject to two previous decision notices – FS50509081 and FS50569254. Of relevance to this notice, FS50569254 found that the Council had incorrectly applied section 14(1) (vexatious request) to four parts of the 26 part request. The Commissioner ordered the Council to disclose this information or issue a fresh refusal notice.

Request and response



6. On 29 March 2013, as part of the wider request referred to above, the complainant had written to the Council and requested information in the following terms:

“Please could you provide minutes of the previous meetings of the following committees…
… 15. Headteachers and Teachers JCC
18. Members’ Training Steering Group
19. Members’ Equipment Steering Group
26. Safeguarding Reference Group…”

7. As a result of the Commissioner’s decision in FS50569254, the Council provided the complainant with a new response on 3 September 2015. It said that these four parts were exempt from disclosure under section 36(2)(b)(i) and (ii) and that the public interest favours withholding the information. It said part 26 of the request was also exempt under section 40 (personal data).

8. Given the history of this request, the Council did not undertake an internal review and the matter was referred to the Commissioner. However, as part of the Commissioner’s investigation, the Council did review its response and reconsidered its response with regard to part 26 of the request. It withdrew its reliance on section 36 and section 40 and disclosed this particular information to the complainant on 11 January 2016.

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Reference: FS50596346

Scope of the case



9. The complainant had contacted the Commissioner on 7 September 2015 to complain about the way the four parts of his original request for information had been handled.

10. The Council has now disclosed part 26 of the requested information to the complainant. The Commissioner has therefore focussed his investigation on the Council’s application of the exemption at section 36 to parts 15, 18 and 19 of the request and its public interest arguments.

Reasons for decision



Section 36 – prejudice to effective conduct of public affairs

11. Section 36(2)(b)(i) and (ii) of the FOIA says that information that is held by a public authority is exempt if, in the reasonable opinion of a qualified person, disclosing it would, or would be likely to, inhibit the free and frank provision of advice, and the free and frank exchange of views for the purposes of deliberation.

12. Section 36 differs from all other prejudice exemptions in that the judgement about prejudice must be made by the legally authorised, qualified person for that public authority. The qualified person’s opinion must also be a “reasonable” opinion, and the Commissioner may decide that the section 36 exemption has not been properly applied if he finds that the opinion given is not reasonable.

13. Other than for information held by Parliament, section 36 is a qualified exemption. This means that even if the qualified person considers that disclosure would cause harm, or would be likely to cause harm, the public interest must still be considered.

14. In determining whether the Council correctly applied the exemption, the Commissioner is required to consider the qualified person’s opinion as well as the reasoning that informed the opinion. Therefore in order to establish that the exemption has been applied correctly the Commissioner must:


  • ascertain who was the qualified person or persons

  • establish that an opinion was given by the qualified person

  • ascertain when the opinion was given; and

  • consider whether the opinion was reasonable.

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Reference: FSSOS96346

15. The information in question concerns the minutes of a Head Teachers and Teachers Joint Consultative Committee (JCC), action minutes of a Members’ Training Steering Group and actions from a Members’ Equipment Steering Group.

16. The Council has explained to the Commissioner that the qualified person in this case is the Council’s Head of Legal and Member Services who, under section 36(5)(o)(m), is authorised as the Monitoring Officer.

17. The Council showed the information in question to the qualified person on 27 October 2014, with an opinion on it sought under section 36(2)(b)(i) and 36(2)(b)(ii), as explained at paragraph 11. The Council says the qualified person met and discussed the information on several occasions with one of his solicitors and the Records and Information Manager. The opinion was given on 31 October 2014. The Council explained to the Commissioner that the request for information was originally submitted in March 2013 and confirmed that the qualified person’s opinion was sought in October 2014.

18. The qualified person upheld the view submitted to him that disclosing the information held in items 15, 18 and 19 would inhibit the free and frank provision of advice and the free and frank exchange of views for the purposes of deliberation.

19. With regard to item 15 — the Head Teachers and Teachers JCC – the qualified person considers that the information contained within these minutes concerns important matters which require consideration and deliberation. These matters include: comprehensive and fundamental reviews associated with the education sector; the current structure and service delivery models of education; budgetary options and proposals for improvement and potential change. The qualified person says that deliberating all these matters needs a “safe space” and, in his opinion, disclosing the requested information would be likely to have a “chilling effect”. This would inhibit the free and frank provision of advice and exchange of views between Members, officers and other representatives.

20. The qualified person additionally considers that any disclosure would be likely to undermine the ability of this group, and those advising this group, to express themselves in a frank and open manner. This would then lead to poorer decision making. The qualified person considers that it is crucial that this group is able to exchange views in an open and frank manner for the reasons set out above.

21. With regard to items 18 and 19 — the Members’ Training Steering Group action minutes and actions from Members’ Equipment Steering Group — the qualified person says that the information contained within these

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Reference: FS50596346

sets of minutes relates to important matters affecting elected Members, which requires consideration and deliberation. Matters debated include: elected Members’ training; use of electronic equipment; developing the Council of the Future; spending; service delivery models and proposals for improvement and potential change.

22. The qualified person says that this level of debate also needs a “safe space” to effectively engage the participants. In his opinion disclosing this information would be likely to have a “chilling effect” that would inhibit the free and frank provision of advice or exchange of views between elected Members and officers. Furthermore, disclosure is likely to undermine the ability of these steering groups’, and those advising these groups, to express themselves in a free and frank manner. This would then lead to poorer decision making.

23. The Commissioner first notes that the Trust has sought the opinion of its Monitoring Officer. He is satisfied that the Monitoring Officer is a suitably qualified person. This is because the Monitoring Officer post within a local authority has the specific duty to ensure that the council, its officers and its elected members maintain the highest standard of conduct in all they do. It is one of three posts that local authorities have a legal duty to have, the other two being the Chief Executive and
the Director of Finance.

24. In order to determine whether the exemption is engaged the Commissioner must then go on to decide whether the qualified person’s opinion in this case is reasonable. This involves considering:

  • Whether the prejudice claimed relates to the specific subsection of section 36(2) on which the Council is relying

  • The nature of the information and the timing of the request; and

  • The qualified person’s knowledge or involvement in the issue.

25. The Commissioner has also issued guidance on section 36 of the FOIA. With regard to what can be considered a ‘reasonable opinion’ it says the following:

“The most relevant definition of ‘reasonable’ in the Shorter Oxford English Dictionary is ‘In accordance with reason; not irrational or absurd’. If the opinion is in accordance with reason and not irrational or absurd — in short, if it is an opinion that a reasonable person could hold — then it is reasonable.”

26. It is important to note that when considering whether the exemption is engaged, the Commissioner is making a decision not on whether he agrees with the opinion of the qualified person, but whether it was reasonable for him or her to reach that opinion. The test of

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Reference: FS50596346

reasonableness is not meant to be a high hurdle and if the Commissioner accepts that the opinion is one that a reasonable person could hold he must find that the exemption is engaged.

27. The Council is relying on subsections (b)(i) and b(ii) of section 36(2), namely that disclosing the withheld information would, or would be likely to inhibit the free and frank provision of advice, and the free and frank exchange of views for the purposes of deliberation. The qualified person in this case has said that prejudice, namely a “chilling effect” on the provision of advice and exchange of views that would lead to poorer decision making, would be likely to occur if the information were to be disclosed (rather than would occur).

28. The Commissioner accepts that it is important that the Council’s meetings are conducted openly with participants able to contribute candidly and to discuss issues freely. The Council and the public can then be confident that decisions made at these meetings are likely to be robust. He therefore accepts that the prejudice the Council is claiming does relate to section 36(2)(b)(i) and (ii).

29. The Commissioner has referred to the information requested at parts 15, 18 and 19 of the wider request. The information concerns meetings that took place in February and March 2013, shortly before the complainant submitted his request. In his view, the meetings are unconnected to each other or to one wider matter.

30. The Commissioner notes that the qualified person has had several discussions with a solicitor and the Records and Information Manager about the matter. He considers that, although the qualified person did not participate in the meetings in question, the qualified person would understand the nature of the meetings and have a good knowledge of the circumstances surrounding the request.

31. Having undertaken the above review of the qualified person’s opinion, the Commissioner is satisfied that, in the circumstances, it is a reasonable opinion ie it is not irrational or absurd. Therefore, the exemption at section 36(2)(b)(i) and (ii) is engaged with regard to items 15, 18 and 19.

Public interest test

32. In most cases, even when the qualified person has given their opinion that section 36(2)(b) is engaged, the public authority must still carry out a public interest test. The qualified person’s opinion will affect the weight of the argument for withholding the information. If the qualified person has decided that disclosure would prejudice, this will carry a greater weight than if they said

6



Reference: FS50596346

disclosure would be likely to prejudice.

33. The qualified person’s opinion brings weight to the arguments for withholding the information; the significance of this weight will vary from case to case. When considering a complaint regarding section 36, if the Commissioner finds that the opinion was reasonable, he will consider the weight of that opinion in the public interest test. This means that he accepts that a reasonable opinion has been expressed that prejudice would, or would be likely to occur, but he will go on to consider the severity, extent and frequency of that prejudice in forming his own assessment of whether the public interest test dictates disclosure.

34. In his guidance on section 36, the Commissioner says that it should always be possible for the public authority to review the public interest arguments. The Commissioner gave the Council the opportunity to do this during the course of his investigation. The Council confirmed on 14 January 2016 that it continues to rely on its arguments from October 2014.

Public interest arguments in favour of disclosure

35. With regard to item 15, the qualified person says that disclosing these minutes would give the public insight into the processes involved within the Council for decision making on important issues of the day. Disclosing these minutes would also demonstrate transparency with regard to internal processes and with regard to the exchange of views and advice.

36. With regard to items 18 and 19, the qualified person says that disclosure of these action minutes would give an insight into how the Council analyses and reviews information with a view to shaping and
developing for the future. These action minutes would also allow the public to see proposals that the Council is considering.

37. The complainant did not submit any public interest arguments.

Public interest arguments in favour of maintaining the exemption

38. The qualified person considers that the public interest favours maintaining the exemption with respect to these three items of information because disclosing the information would restrict the free and frank exchange of views, would inhibit the giving of advice and guidance and would potentially have a detrimental effect on the work of these groups and those taking part in their discussions. He says that the Council relies on the ability to have a “safe space” to enable it to

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Reference: FS50596346

make the most appropriate decisions for elected Members, officers and the people of Wirral.

Balance of the public interest

39. The Commissioner first of all notes that the qualified person has said that releasing the information would be likely to inhibit free and frank advice and exchange of views. This potentially brings less weight to the argument for withholding the information than would inhibit.

40. In his published guidance on section 36, the Commissioner notes at paragraph 45 that 36(2)(b)(i) and (ii) are about the processes that may be inhibited, rather than what is in the information. The issue is whether disclosure would inhibit the processes of providing advice or exchanging views. In order to engage the exemption, the information requested does not necessarily have to contain views and advice that are in themselves notably free and frank.

41. On the other hand, if the information only consists of relatively neutral statements, then it may not be reasonable to think that its disclosure could inhibit the provision of advice or the exchange of views.

42. Paragraph 46 of the Commissioner’s guidance discusses the terminology used in the exemption, as follows:

  • ‘Inhibit’ means to restrain, decrease or suppress the freedom with which opinions or options are expressed.
  • Examples of ‘advice’ include recommendations made by more junior staff to more senior staff, professional advice tendered by professionally qualified employees, advice received from external sources, or advice supplied to external sources. However, an exchange of data or purely factual information would not in itself constitute the provision of advice or, for that matter, the exchange of views.
  • The ‘exchange of views’ must be as part of a process of deliberation.

  • ‘Deliberation’ refers to the public authority’s evaluation of competing arguments or considerations in order to make a decision.

43. As in this case, arguments under section 36(2)(b)(i) and (ii) are usually based on the concept of a ‘chilling effect’. The chilling effect argument is that disclosure of discussions would inhibit free and frank discussions in the future, and that the loss of frankness and candour would damage

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Reference: FS50596346

the quality of advice and deliberation and lead to poorer decision making.

44. Public officials are expected to be impartial and robust when giving advice, and not easily deterred from expressing their views by the possibility of future disclosure. It is also possible that the threat of future disclosure could actually lead to better quality advice. Nonetheless, chilling effect arguments cannot be dismissed out of hand.

45. Chilling effect arguments operate at various levels. If the issue in question is still live, arguments about a chilling effect on those ongoing discussions are likely to be most convincing. Arguments about the effect on closely related live issues may also be relevant. However, once the decision in question is finalised, chilling effect arguments become more and more speculative as time passes. It will be more difficult to make reasonable arguments about a generalised chilling effect on all future discussions.

46. Whether it is reasonable to think that a chilling effect would occur will depend on the circumstances of each case, including the timing of the request, whether the issue is still live, and the actual content and sensitivity of the information in question.

47. The Commissioner has reviewed the information in question. Items 15 and 19 are minutes/actions from meetings held February 2013, item 18 is the action minutes from a meeting that was held in March 2013. At the time of the complainant’s request therefore, the meetings in question were very recent and the subjects under discussion would still have been live at the time of the request.

48. Item 15 is the minutes of the Headteachers’ and Teachers’ Joint Consultative Committee meeting on 28 February 2013 and is described as such ie as ‘Minutes’. As such they summarise the discussion that occurred in the meeting. The content of the minutes is as described at paragraph 19. They include summaries of participants’ exchange of views and their evaluation of particular proposals in order to reach a decision. The Commissioner considers that this Committee would have needed a safe space in which to freely and frankly deliberate on important and potentially sensitive matters such as fundamental reviews associated with the education sector; the current structure and service delivery models of education; budgetary options and proposals for improvement and potential change.

49. Given the closeness between the meeting in February 2013 and the original request for its minutes in March 2013, the Commissioner is persuaded that releasing these minutes may have been likely to have a chilling effect on subsequent meetings of this Committee. He agrees

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Reference: FS50596346

with the Council that the public interest favours this particular information being withheld in order to protect the Committee’s ability to make decisions based on full and frank discussions.

50. The Commissioner has next considered items 18 and 19. Item 18 — the Member Steering Group – is described as ‘Action Minutes’. For the most part, only the agreed actions that resulted from the discussions are noted, with a brief summary of one or two points. Item 19 — the Members’ Equipment Steering Group’ — is described as ‘Actions’ and only agreed actions that resulted from the discussions are noted.

51. The Commissioner recognises that the meetings took place shortly before the request was submitted and that the matters under discussion were still live at that time, to some degree. However, he does not consider that the matters under discussion — elected Members’ training and equipment needs — is of sufficient sensitivity that disclosing the information would have a chilling effect on subsequent meetings of these two groups, and inhibit the process of providing advice or exchanging views. In addition, the overwhelming majority of the information held in these two documents is agreed actions, very briefly summarised, and not summaries of broader discussion and deliberation on these two matters. The Council has said that releasing this information would be likely to inhibit free and frank advice and exchange of views but its evidence for this is somewhat generic and consequently not strong. As a result, the Commissioner considers that the public interest favours releasing items 18 and 19 in the interests of transparency.

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Reference: FS50596346

Right of appeal



52. Either party has the right to 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

53. 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.

54. 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 Pamela Clements)………..

Pamela Clements
Group Manager
Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF

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EXCLUSIVE: 8 page briefing note leads to Wirral’s councillors agreeing to further FOI discussions behind closed doors

EXCLUSIVE: 8 page briefing note leads to Wirral’s councillors agreeing to further FOI discussions behind closed doors

                                                          

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Councillors discuss Wirral Council’s response to Freedom of Information Act requests at a meeting of the Transformation and Resources Policy and Performance Committee on the 3rd December 2015

Cllr Phil Gilchrist addresses the Transformation and Resources Committee about freedom of information requests 3rd December 2015
Cllr Phil Gilchrist addresses the Transformation and Resources Committee about freedom of information requests 3rd December 2015

Yesterday saw councillors discuss freedom of information requests and how Wirral Council handles them in response to this Lib Dem motion. As a number of the ICO decision notices are in response to my requests, I will declare an interest before writing any further.

Interestingly, the day before the Transformation and Resources Policy and Performance Committee met, Surjit Tour had written an eight page "briefing note" which was referred to by councillors during the debate.

The Conservative amendment to the motion was withdrawn and the Labour amendment to have a task and finish group of councillors meeting to discuss FOI behind closed doors (again) on the subject (in the spirit of openness and transparency of course!) was agreed.

You can watch the video of councillors discussing this item above.

However what will probably make more interesting reading is the briefing note itself which I reproduce below (it’s not published with the papers for the committee or indeed anywhere else). It’s a bit hard to summarise eight pages, but it’s basically eight pages of justification by officers that they’re doing their best they can on FOI (with the promise of improvements) and that it isn’t as bad as the bleak picture as painted by Lib Dem politicians. If the thumbnails are hard to read, they should each link to a more high resolution version of each page.

Surjit Tour briefing note on FOI to Transformation and Resources Policy and Performance Committee page 1 of 8 thumbnail
Surjit Tour briefing note on FOI to Transformation and Resources Policy and Performance Committee page 1 of 8 thumbnail

Continue reading “EXCLUSIVE: 8 page briefing note leads to Wirral’s councillors agreeing to further FOI discussions behind closed doors”