Tag: vexatious

WIRRAL COUNCIL goes to the dentist: a short play about FOI and local government

WIRRAL COUNCIL goes to the dentist: a short play about FOI and local government The below is written in memory of my late Great-Uncle Joe who before he retired taught dentistry. I am currently writing an e-book about freedom of information of which the below is an excerpt. WIRRAL COUNCIL, a "most improved" Council is … Continue reading “WIRRAL COUNCIL goes to the dentist: a short play about FOI and local government”

WIRRAL COUNCIL goes to the dentist: a short play about FOI and local government

The below is written in memory of my late Great-Uncle Joe who before he retired taught dentistry. I am currently writing an e-book about freedom of information of which the below is an excerpt.

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

WIRRAL COUNCIL, a "most improved" Council is in the dentists’ chair looking worried.

Hovering above the patient in the dentists’ chair is MR BRACE, the dentist. Every tooth of WIRRAL COUNCIL he has taken out before is displayed proudly in a cabinet in the waiting area and visitors leave comments about them.

WIRRAL COUNCIL (mumbling and looking worried): You want to take my teeth out, again!? So the public can look at my teeth!?

MR BRACE: Only some of them, don’t worry you’ll grow new ones! Or I could take X-rays of them instead?

WIRRAL COUNCIL (mumbling): I’ll have to think about this and get back to you in twenty working days.

Twenty working days pass. Nothing happens. MR BRACE phones WIRRAL COUNCIL.

MR BRACE: You said you’d get back to me!

WIRRAL COUNCIL (alarmed): Sorry, it will all cost too much and end up taking over 18 and a half hours of my time! (slams the phone down)

MR BRACE rings WIRRAL COUNCIL again.

WIRRAL COUNCIL (even more alarmed): Sorry now you’re just being… vexatious! (slams the phone down again)

MR BRACE rings ICO and tells them what happened.

A year later WIRRAL COUNCIL rings the dentist.

WIRRAL COUNCIL: Sorry I’ve changed my mind you’re not being vexatious, but it’ll still cost too much!

ICO after a year of scratching their head tell WIRRAL COUNCIL it won’t cost too much.

WIRRAL COUNCIL takes some of its teeth out (reluctantly) and hands them to the dentist. It claims despite conducting a thorough search of its own mouth, that the teeth it thought it had, and claimed it had and had been telling everyone it used for chewing food for two years, aren’t actually there.

It tells MR BRACE and ICO that he cannot have the other teeth because they contain "personal data" and after consulting its solicitor that to hand over some teeth would be "prejudicial to the effective conduct of public affairs".

MR BRACE asks WIRRAL COUNCIL to think again. WIRRAL COUNCIL says no, so he asks ICO.

WIRRAL COUNCIL (after trying to ignore MR BRACE) tells him and ICO that MR. BRACE is being vexatious and he can have no more of its teeth.

Then WIRRAL COUNCIL changes its mind and over two years after this saga started, hands over one more of its teeth (but with bits blacked out). Eventually it removes the blacked out bits.

ICO tell WIRRAL COUNCIL it is being very naughty with MR BRACE, feels sorry for Wirral Council so it let’s it keep one tooth, but also says to stop calling MR BRACE vexatious. ICO asks WIRRAL COUNCIL to provide a fresh response.

WIRRAL COUNCIL doesn’t like this!

WIRRAL COUNCIL just refers MR BRACE and ICO to its earlier decisions.

MR BRACE contacts ICO again. However ICO conveniently lose what most of what MR BRACE told them.

ICO tell WIRRAL COUNCIL once again it is wrong, ICO tell WIRRAL COUNCIL to hand over two more of its teeth.

MR BRACE thinks the whole thing (now lasting over 3 years) is getting very silly indeed!

So he asks for a meeting, where independent people at a "Tribunal" can decide whether WIRRAL COUNCIL should have to hand over its teeth (whether blacked out or not).

WIRRAL COUNCIL hands over two more of its teeth, again with bits blacked out.

WIRRAL COUNCIL hires a barrister to plead with the Tribunal to help keep its teeth.

ICO says its not going to come to such a meeting about WIRRAL COUNCIL‘s teeth but sends a written response.

A hearing date is set (16th June 2016 starting at 10:00am at The Employment Tribunal, 3rd Floor, Civil & Family Court, 35 Vernon Street, Liverpool, L2 2BX) and the rest is yet to be decided!

But why is making a simple FOI request like pulling teeth?

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

What was Liverpool City Council’s incredible 6 page response to the FOI consultation?

What was Liverpool City Council’s incredible 6 page response to the FOI consultation?

                                                                  

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

You can tell a lot about the culture at a public body by its response and reaction to issues such as FOI and filming of public meetings.

I had better declare an interest as a FOI request I made to Liverpool City Council is currently being considered by ICO for a decision notice.

Considering there were over 30,000 responses to the recent consultation on changes to FOI legislation it’s something that attracts a lot of strong feeling.

I’m going to start first with Liverpool City Council’s response to the consultation. Those who know Liverpool City Council may say that their response sums up their attitude. From the tone of their response they don’t like openness and transparency and recommend that the goalposts are moved to prevent having to respond to so many FOI requests (whilst displaying a lack of awareness as to why they receive so many FOI requests in the first place). I think that responses like this are often like a window on an organisation’s soul.

It gives some telling insights on the internal review process of FOI requests at Liverpool City Council with comment such as “that an Internal Review is unlikely to reach a different conclusion”, therefore they propose abolishing internal reviews.

They also want advance notice of decision notices so that they can for want of a better word nobble ICO to change what they don’t like as in LCC’s world decision notices are described as “inappropriate”.


Liverpool City Council

Rt. Hon. Lord Burns
Chair – Commission on Freedom of Information Cabinet Office
9th Floor
102 Petty France London
SW1H 9AJ

Evidence Submission on review of Freedom of Information Legislation

I write further to my letter of 12 October and with regard to the Call for Evidence document issued by the Commission on Freedom of Information on 9 October, enclosing for the attention of the Commission the formal evidence submission of Liverpool City Council.

I would appreciate it if you would acknowledge receipt of this submission and would again take the opportunity to affirm our willingness to continue to engage constructively with the Commission during the course of its review.

I look forward to hearing from you in due course. Yours
sincerely

Ged Fitzgerald
Chief Executive

Response

These matters all have a starting point and undergo a number of iterations before coming forward as formal options. It is essential that this process should not be undermined by requests being made for copies of any emails or communications which formed part of the iterative process of decision making. Ultimately the governance framework ensures any decisions taken are informed and legal. This is a cornerstone of any effective public authority – from Central Government to local authorities – and it is essential that this ability to develop policy, proposals and explore options is maintained otherwise it would impair the quality and ability of public authorities to make informed decisions.

The application of this Exemption requires a person qualified under the Act to give their reasonable opinion, and guidance has been issued by the ICO as to the acceptable format of this. It is clear from the consultation document as well as practical experience that there is a need for such Exemption otherwise the quality of both record-keeping and decision-making by public authorities would be impaired.

Current guidance issued by the ICO (“the evidence required by the ICO would be to assess the quality of the Qualified Persons reasoning process and assist in their determination as to whether a substantive opinion could be considered reasonable…”) would appear to indicate that once the Qualified Person has reached and recorded their reasonable opinion then the ICO may only require the production of such a record but may not compel the disclosure of the information to which the Reasonable Opinion relates.

The key issue is that the Qualified Person’s opinion and record of reasoning which includes the public interest test is recorded. The ICO have produced a template for this purpose. The Information Commissioners Guidance also indicates that the potential prejudice claimed arising from any such disclosures must be at least or exceed a 50% chance of occurring.

How long after should that remain sensitive?
An additional key aspect of the decision-making process of public authorities is the duration of how long information which falls under the Exemption may be withheld from disclosure on the basis of the opinion of the Qualified Person. Information relating to ‘internal deliberations’ should remain capable of being withheld from disclosure for as long as the public authority considers necessary. Whether the information held continued to be subject to non-disclosure would of necessity be a matter for the relevant public authority to determine. It would be inappropriate to set any form of definitive time limit after which information could be deemed to no longer be sensitive if published. The sensitivity of any specific piece of information directly relates to the subject of the information itself as opposed to the date when this was created. There should be no limitation as to the period which a Qualified Person may determine that such information should not be disclosed if the subject of a formal request.

The City Council would also consider that opinions issued by Qualified Persons should not be subject to overturn if reached on a reasonable basis and in a manner consistent with ICO guidance and using their standard template. An alternative and more appropriate mechanism would be for any such opinions to be published on the website of the respective public authority and referenced accordingly within the publication scheme of that public authority. This would satisfy the accessibility and transparency requirements for such declarations and for the purposes of Liverpool City Council it is the Monitoring Officer.

An anomaly which the City Council would bring to the attention of the Commission is that of how the Environmental Information Regulations 2004 (EIR) allow an exception (as opposed to the term ‘exemption as used under FOIA) for internal communications under Regulation 12(4) (d) and yet no parallel exemption is extant under FOIA.

Recommendations from Liverpool City Council –

(i) Qualified Person Opinion & Publication – that the Section 36 Exemption be revised to state that the reasonable opinion of the Qualified Person, once drafted and recorded on the relevant ICO template and published to the website of the public authority and referenced within the Publication Scheme, that this may not then be the subject of further review by the ICO.
 

Questions 2 – this question relates purely to matters within the legislation which are applicable only to Central Government and as such no response is proposed to be made.

Questions 3 & 4 see response to question 6 below.

Question 5 – What is the appropriate enforcement and appeal system for Freedom of Information Requests? What is the appropriate enforcement and appeal system for Freedom of Information Requests?

Appeals & Internal Review
Current legislation includes provision whereby public authorities must provide an internal review process whereby requestors may ask the Public Authority to review the original decision of the Public Authority on their specific request.

The burden placed on public authorities in preparing responses to initial requests is further exacerbated by the requirement to undertake an Internal Review to assess the validity of its response, when in the first instance such responses are issued following careful consideration of information held in the context of FOIA legislation. In terms of the figures set out in this response below, in 2014 of 2,139 requests a total of 49 requestors sought an Internal Review. Of these, only 5 appeals were the subject of Decision Notices from the ICO with only 1 of which requiring any form of action from the City Council – approximately 0.00047% of all requests processed by the City Council.

It is our position that our approach to an FOI request is robust and thorough from the outset, and that the legislation is applied by trained experienced staff so that an Internal Review is unlikely to reach a different conclusion as evidenced by these statistics.

Essentially public authorities are being asked to repeat an assessment when undertaking an Internal Review and to undertake work twice when conducting reviews, which is inefficient and places an excessive burden on local authorities.

ICO Review
We would draw attention to the process which the ICO then undertakes when seeking information from public authorities in such instances when informing their own decision-making. Frequently the level of information sought by the ICO goes beyond that of verifying the information held or application of the exemption concerned and indeed the subject matter of the original request. This process can be both resource intensive and give additional uncertainty in those circumstances where the ICO seeks information or reasoning beyond that which could reasonably be expected on a specific case. We would seek greater clarity as to the remit of the ICO in such circumstances and of the extent to which they may undertake a review.

Decision Notices
Additionally, in concluding reviews, the ICO will then issue a Notice (Decision or Enforcement Notice) setting out their decision on the request concerned. We would suggest that this process be reviewed and aligned more closely to that used by the Local Government Ombudsman whereby any Notices proposed to be issued should firstly be sent to the public authority concerned for response. This would provide a fair and reasonable opportunity for public authorities and the ICO to address any clear factual inaccuracies, assist in maximising the value of any recommendations contained within the final Notice issued and possibly prevent a costly First Tier Tribunal being convened. The timescale for responses by the Public Authority to any Decision Notice to be 10 working days. The inclusion of unsubstantiated and factually inaccurate statements within ICO Notices, issued without opportunity to the public authority of correction or rebuttal, is inappropriate and requires addressing.

Applications to First Tier Tribunal (Information Rights)
The final opportunity for requestors – if unsatisfied with the outcome of a review undertaken by the ICO – is to submit an Appeal to the First Tier Tribunal. There is no threshold to be met before such applications are made and, in seeking to respond, public authorities are required to expend significant resources in responding. Only on the most fundamental principles of information law should this facility be available or otherwise a cost mechanism for such applications should be introduced in the same manner adopted for applications for Judicial Review.

Recommendations from Liverpool City Council –

(ii) Internal Review – that this mechanism be withdrawn on the basis that this offers no practical benefit for requestors and merely requires the duplication of effort by public authorities.

(iii) ICO drafting of Decision Notices – a requirement be introduced whereby the ICO in drafting a Decision Notice and prior to publication, be required to formally consult the subject public authority and allowing not less than ten working days for issues to be raised by the public authority. Such issues if not accepted by the ICO must be recorded as having been raised by the public authority.

(iv) Applications to First Tier Tribunal (Information Rights) – a threshold or application fee be introduced for applications to the First Tier Tribunal, in a similar manner to that used for applications for Judicial Review.

Question 6 – Burden imposed under the Act and whether justified by the public interest in the public’s right to know

Public authorities are subject to detailed requirements set out in the Local Government Acts to date requiring the publication of information and prescribing how this is to be made available to the public. In addition, the introduction of the Local Government Transparency Code as statutory guidance introduced additional publication requirements on public authorities regarding openness and transparency in local government, which represents additional obligations beyond that already seen. Combined these elements demonstrate the breadth of requirements already inherent on public authorities to make information publicly available.

The Freedom of Information Act (FOIA) (and parallel Environmental Information Regulations 2004) place additional substantial burdens on public authorities. In terms of the resources public authorities are required to commit to dealing with Freedom of Information requests, there are a number of key points to be made.

Burden on Public Authorities
Under Section 16 FOIA and Section 45 Code of Practice, all public authorities are already under an obligation to give advice and assistance to requestors both in terms of framing requests as well as giving advice to bring such requests within the cost ceiling as laid down within the legislation. The current ceiling set out in the legislation is 18 hours, which is high in terms of resource and cost implications.

Firstly, by way of example of the experience of Liverpool City Council, the number of requests received in 2010 (1,217 requests) to the number of requests received in 2014 (2,139) shows an increase of 922 or in percentages of approximately 76%, and an increase in costs of approximately £150K per annum. This increase can be set against a context whereby the City Council has seen the funding it receives from Central Government reduced by 58% during the same period, placing substantial pressures on the viability of the delivery of essential services for its residents.

In real terms and using the figure for the average costs incurred in responding to an FOI request as set out in the Consultation Document issued by the Independent Commission, of £164 per request, the cost of responding to FOI requests based solely on this is £350K per annum to Liverpool City Council alone.

This does not take into account more complex, technical and detailed requests which have to be dealt with and which cost substantially more. The Council’s response rate within 20 working days was 88% in 2014.

The City Council would draw to the Commission’s attention the fact that that the average cost per request it has included within its consultation document is based on calculations undertaken in 2008.

It is highly probable that a similar calculation conducted today would reach a substantially higher ‘cost per request’ figure.

Table 1. Number of request received by Liverpool City Council in 2010 and 2014 and associated costs

























2010

2014

Month received

Total

Month received

Total
Jan-1092Jan-14226
Feb-1062Feb-14215
Mar-1082Mar-14177
Apr-1097Apr-14189
May-10104May-14161
Jun-10109Jun-14151
Jul-10116Jul-14143
Aug-10106Aug-14187
Sep-10126Sep-14171
Oct-10105Oct-14180
Nov-10140Nov-14193
Dec-1078Dec-14146
12172139

£164 per request

£199,588

£164 per request

£350,796

Vexatious Requests
The City Council welcomes the revised ICO guidance. However there needs to be additional clear guidance within that around the real public interest rather than the private interests of unelected individuals or concerted campaigns which are a drain on public resources. This type of requestor continues to rise in terms of complexity and their impact on available resources.

Based on the experience of Liverpool City Council and using the average cost idicated above, a small number of “frequent requesters” are costing a disproportionate amount of time and resources responding to their requests, of up to £7,000 per individual. This needs to be reflected and addressed within a substantive manner within any Guidance issued by the ICO.

There are also resource implications even associated with dealing with frivolous requests such as “what is the total number of red pens bought by the Council in the past year”. Even though this is classed as vexatious a formal response to that effect is still required to be issued, effectively occupying valuable resources.

Charging
A further burden associated with FOIA is that of the limited charging mechanisms available under the legislation, specifically, under FOIA public authorities may only charge where the time to deal with the request exceeds 18 hours in total.

The current 18 hours threshold (Section 12) is itself a significant demand on Council resources in that a request can take up to anything just below that timescale and no charge can be made. This in effect is up to and two and half days work . This threshold should be reviewed in the light of some of the research undertaken to date i.e. the average time taken to respond to an FOI request by public authorities of 6 hours and 10 minutes with a lower threshold being established.

In terms of the current charging regime associated with Freedom of Information legislation, again the experience of Liverpool City Council in responding to requests is that the art of redacting specific documents can be very time consuming and should be included within the costs permitted when determining whether complying with a request may exceed 18 hours.

In terms of charging the approach set out in the Environmental Impact Regulations 2004 (EIR) assumes information will be available to inspect ‘for free’ but if information is asked to be supplied in a different format a ‘reasonable’ charge may be made for that supply. Specifically, this charge may extend to the time spent by Officers in responding to the EIR request and supplying the information. This differs to the approach adopted in FOIA and should be made consistent.

The City Council would also draw attention to the difficulties caused by the two disclosure regimes operable in the form of the Freedom of Information Act (FOI) and the Environmental Information Regulations 2004 (EIR). There is considerable overlap between requests which may be received under FOI but which, by virtue of the wide definition under EIR should be considered under that regime. The City Council would seek to encourage greater consistency between both regimes, through either a single consolidating Act or through amendments to both existing regimes to provide for a single common charging mechanism and consistency of the requirements for exemptions and exceptions.

Technical Issues

An additional technical issue which we would seek to highlight is that of an Exemption (Section 21 absolute, class based) which is applied in those instances where information is either already in the public domain or accessible by alternative means. The legislation still requires this to be issued with a supporting Section 17 Refusal Notice. The City Council considers that the application of this Exemption should not require the issue of a Refusal Notice as no information is being withheld given it is either already in the public domain or accessible by other means to which the requestor is then directed. The use of a Refusal Notice in such instances can give rise to an Internal Review which of its nature would only generate additional unnecessary burdens for public authorities.

Recommendations from Liverpool City Council –

(v) 18 Hour Rule – that a review of the 18 hour limit beyond which charging or refusal is permitted be undertaken and consideration given to reducing this threshold to either 6 or 7 hours.

(vi) Charging/Reasonable recovery of costs – public authorities be given greater opportunity to levy charges for compliance with requests to ensure the recovery of reasonable costs associated with fulfilling requests which would include the time taken to redact any documents. To align the charging policies for EIR and FOI.

(vii) Vexatious Requests –that Guidance issued by the ICO in relation to dealing with Vexatious requests be further reviewed and strengthened in respect of frequent and persistent requesters

(viii) FOIA and EIR Alignment of Regimes – that a concurrent review be undertaken of the FOIA and EIR to ensure greater alignment of both pieces of legislation or one consolidating Act.

(ix) Refusal Notices – the requirements for issue of Refusal Notices be reviewed to remove requirements to issue these in such instances where a Section 21 (information in public domain or reasonably accessible by other means) Exemption is applicable.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

PROTECT

 

15th August 2013

 

Case Reference Number FS50509081

 

Dear [redacted council officer name],

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

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

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

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

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

What actions may be required at this stage

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

Providing information to the ICO

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

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

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

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

Yours sincerely,

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

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

PROTECT

 

10 February 2014

 

Case Reference Number FS50509081

 

Dear [redacted council officer name]

 

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

Yours sincerely

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

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

[redacted council officer name]

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

 

10 February 2014

 

Case reference number FS50509081

 

Dear [redacted council officer name]

 

Freedom of Information Act 2000 (FOIA)

Environmental Information Regulations 2004 (EIR)

Complainant: Mr John Brace

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

 

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

 

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

 

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

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

 

 

ICO’s approach

 

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

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

 

The request

 

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

 

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

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

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

 

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

 

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

 

 

Scope of the case

 

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

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

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

 

What you need to do now

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

 

 

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

 

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

 

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

 

To contact us

 

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

 

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

 

Yours sincerely

 

 

Daniel Perry

Case Officer – Complaints Resolution

Direct Dial: 01625 545 214

 

 

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

 
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: “Bureaucratic Machinations” and Freedom of Information

A blogpost about the Freedom of Information Act, Wirral Council and the Information Commissioners Office

Wirral Council: “Bureaucratic Machinations” and Freedom of Information

If you don’t have freedom of information and expression, you are not living in a democracy; rather it is ruled by dictatorship with many heads.

Despite there being seven public meetings this month at Wirral Council, I am instead writing about an important topic I’ve been requested to by a reader (freedom of information). This post will be the first of three parts on the interrelated topics of freedom of information, freedom of speech and audit rights.

News from the Information Commissioner (who describe themselves on their website as “the UK’s independent authority set up to uphold information rights in the public interest, promoting openness by public bodies and data privacy for individuals) is that following three months of monitoring Wirral Council’s freedom of information act request responses at the start of this year, as they were responding to less than 75% of requests within 20 days (the legal requirement on Wirral Council is that they respond to 100% of requests within 20 days) and that they had a number of outstanding, overdue requests and internal reviews that Wirral Council are to sign an undertaking (I’ve linked to a copy of this undertaking here on my blog as some browsers don’t display the undertaking properly).

This undertaking commits Wirral Council to actually responding to FOI requests within the twenty day timescale and (perhaps more importantly) dealing with internal reviews according to the s.45 Code of Practice (which is another twenty days). In addition for July 2013 to the end of September 2013 Wirral Council has to provide the Information Commissioner’s Office with statistical information on requests and the timescale they’re responded to with the aim that by the end of September Wirral Council’s rather woeful 75% will be increased to 85%. There are also some commitments over allocating enough resources, employee training and dealing with some outstanding requests.

So the good news is Wirral Council will (hopefully) respond quicker to FOI requests and there won’t be the situation there has been in the past where internal reviews have taken up to a year to happen. Unsurprisingly a lot of these internal reviews have just upheld the original decision resulting in plenty of referrals onward to the Information Commissioner and decision notices being issued (which are legally binding on Wirral Council).

Let’s take my most recent request as an example of how not to do FOI by Wirral Council. The request can be viewed here on the whatdotheyknow website. Councillors sit on various panels, statutory committees, advisory parties and working parties at Wirral Council, the FOI request is quite simply for the minutes of the previous meeting (or if that is not available the minutes of the one before). The request was made on the 29th March 2013. On the 29th April 2013 (twenty working days later) I had received no response, so I requested an internal review as to why I hadn’t received a response.

The next day (30th April 2013) I received an apology for not responding to my initial response in “a timely fashion”, the internal review stated that the request was refused as it would take longer than 18.5 hours to comply with (exemption 12(1))) on the basis that:-

The very broad scope of your request, 26 varying panels, groups or committees are included
The fact that many of the committees you mention are not administered centrally but departmentally and information is not held in a central repository
The huge volume of School Appeals each year, running into the hundreds; including a great deal of Personal Data and Sensitive Data, which would have to be reviewed and redacted were applicable.

However they did offer to supply the Members Equipment Steering Group action notes (available from 17/7/12) and the Safeguarding Reference Group minutes (although I’ve never received either of these). They pointed out that the Independent Remuneration Panel Reports were already on their website (although rather unhelpfully didn’t supply a link).

They also stated “Further advice would be, if you could reduce the scope and breadth of your enquiry and also give some time frames in your enquiry, then Officers can review it further. ”

So sure enough I responded, classing their internal review as their initial response asking for a further internal review. I pointed out I was only asking for the minutes of one meeting (not a years worth as what I’d thought was my initially clear request had stated) and considering that the Independent Remuneration Panel reports were already on their website, felt that 45 minutes was ample time to retrieve a set of minutes and scan it in (although I offered to pick up paper copies if this meant the time limit was exceeded).

This request for the internal review was made on the 30th April 2013. The section 45 code of practice (which Wirral Council has now said it will stick to states that an internal review should take twenty days and only in exceptional circumstances forty days. The response to the internal review came on 30th July (two months after the request or sixty four working days (sixty two if you don’t count the day it was made or the day it was received).

Here are some quotes from that internal review, my thoughts are in italics, (the rest of it just repeats the original request, response and request for an internal review):

You requested “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.”

The Information Manager interpreted your request as a request for the minutes of all meetings of the committees from time of inception.

Personally I think this is not what the original request (or clarification following the initial response actually stated) and it’s getting quite frankly nigh impossible to frame a FOI request that isn’t possible of being misinterpreted by Wirral Council into being something it’s not in order to justify a refusal.

It is possible that what you were in fact requesting was the minutes of the last meeting of each of the 26 panels that took place of the 26 panels prior to the 29 March 2013. You then indicated if those meetings had not been formally minuted you wanted the minutes of the last meeting of each of those panels that took place directly before the meeting that had taken place but not yet been minuted.

Reading these two sentences I felt pleased that someone at Wirral Council (albeit with the help of the clarification of my request for the internal review making it crystal clear) could finally read and understand what I meant.

The reviewing officer considers that as framed your request was ambiguous as you referred in your first sentence to “previous meetings” which would mean all meetings since the committees were constituted. The FOI team having interpreted your request on that basis refused it.

No, no, no, no, no, to be honest this must be someone from Wirral Council’s legal department to argue on such semantics, the previous meetings bit refers to either the last meeting or the one before (whichever has minutes available). It could also be plural because there are twenty six sets of minutes requested, therefore twenty-six previous meetings.

The reviewing officer considers that given the interpretation of the email the refusal was justified for the reasons given and on the grounds stated.

Sigh, any reason to turn something down eh?

The reviewing officer has gone on to consider whether a refusal of what appears to be your request ( as clarified by your later email of April 29) i.e. for minutes of the last meeting held prior 29 March 2013 of each group you mention should have been refused under s12.

Right, a little ray of sunshine, give me some hope that the “bureaucratic machinations” are going somewhere.

The groups you mention are not all served by committee services nor are they groups on which the Council is the sole interested party; nor are they all groups which the Council chairs and an inquiry would have to be made to a significant number of persons and locations. The reviewing officer considers that a request should have been refused under s14 of the Freedom of Information Act as imposing a gross burden on Council officers in retrieval consideration and redaction.

Err what, what has who chairs them got to do with this? Considering what to redact isn’t allowed to be counted towards the time limit anyway (according to previous case law), surely (knowing Wirral Council’s love of black marker) you’ll happily black out all the names in these minutes anyway?

It is clear that many of the panels you mention will be dealing with highly sensitive personal data in particular and without limitation no.s 1-4 inclusive; 8,9, 11; 16 23 and 26. Officer time in considering those considering the exemptions and redacting,

Again officer time in considering the exemptions and redacting doesn’t count towards the time limit!

consulting with third parties (for example the independent chairperson of the Adoption panel, representatives of other bodies on the committee)

So Wirral Council is seriously stating that releasing the minutes of a meeting of the Adoption/Fostering panel would require them to consult with the independent chairperson whose name will probably be blacked out anyway citing an exemption anyway? Just for reference the adoption panel is comprised of an independent chairperson, an agency advisor, a social work team manager, a social worker, someone who has previously adopted, the medical adviser, a consultant psychotherapist and a Wirral Councillor, there are no “representatives of other bodies on the committee”.

would in the view of the Reviewing Officer mean that the request should have been refused under s14.

The minutes requested for panel 13 are available on the Council website.

This refers to the Youth and Play Advisory Service Committee (which was seemingly not spotted by their initial refusal).

The decision made in response to your initial request is therefore upheld. If you are dissatisfied with the outcome of your internal review, please see contact details below for the ICO, should you wish to complain:-

Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire SK9 5AF
Tel: 08456 30 60 60 or 01625 54 57 45
Fax: 01625 524510 www.ico.gov.uk <http://www.ico.gov.uk/<

So to sum it up as follows, the initial request (as sensibly interpreted) didn’t breach s.12 (going over the 18.5 hours), however was refused (incorrectly) on s.12 (going over the 18.5 hours) grounds. The internal reviewer (at least by my reading of what they wrote) then realises (once the request is interpreted for what it was meant to be) there are no longer grounds to refuse under s.12 so instead refuses under s.14 (vexatious requests). This (and the initial refusal) are both based on the assumption that officer time in considering the exemptions and redacting information counts towards the limit. They’re not. In fact the list of allowable tasks is specified in legislation and doesn’t include consulting with third parties. So, I’ll be referring this to ICO for a decision notice in the near future. Comments (and links to any relevant caselaw) from experienced FOI requesters would be appreciated.