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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133 photos of the 2016 Chinese New Year celebrations in Liverpool

133 photos of the 2016 Chinese New Year celebrations in Liverpool

                                                           

Yesterday I was in Liverpool for the 2016 Chinese New Year celebrations. This year it’s the Year of the Monkey.

I’ll start off by making clear what connection it has to Liverpool City Council (as this blog is about public bodies) and first state the role that Liverpool City Council played in the 2016 Chinese New Year celebrations.

Firstly, there are a series of road closures that they have to get right as a lot of Chinatown in Liverpool and the surrounding roads around it are closed to traffic. There are also extra litter pickers going round.

As you can see from what’s in the background photos below of Great George Square, there are banners up about the City of Liverpool and the Mayor.

There are large crowds that attend, so Merseyside Police have police officers patrolling the crowds.

Transport wise major events like these require a lot of planning too.

The public sector has a huge role in making sure major events like these run smoothly.

I took 133 photos of the 2016 Chinese New Year festivities in Liverpool which you can view below. The photos below have been resized to 500 pixels wide so they display properly on this blog, but you can view the original high-resolution photos in this Flickr album.

Chinese New Year Liverpool 2016 Black-E 7th February 2016 photo 1
Chinese New Year Liverpool 2016 Black-E 7th February 2016 photo 1

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Liverpool City Region Combined Authority decides to freeze Mersey Tunnels cash tolls for 2016/17 at 2015/16 levels, reduce Fast Tag tolls in 2016/17, not charge tolls on Christmas Day 2016 and no tolls for emergency vehicles

Liverpool City Region Combined Authority decides to freeze Mersey Tunnels cash tolls for 2016/17 at 2015/16 levels, reduce Fast Tag tolls in 2016/17, not charge tolls on Christmas Day 2016 and no tolls for emergency vehicles

                                                              

Councillors on the Merseytravel Committee met on Thursday afternoon to decide on a recommendation on Mersey Tunnel tolls for 2016/17. Their recommendation was accepted at a meeting of the Liverpool City Region Combined Authority that met the following day on Friday morning.

You can view video of the Merseytravel Committee meeting on Youtube below (starting at agenda item 6 (Mersey Tunnel tolls).

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Merseytravel Committee meeting 4th February 2016 starting at agenda item 6 (Mersey Tunnel tolls) (1m45s)

You can view video of the Liverpool City Region Combined Authority meeting on Youtube below (starting at agenda item 10 (Mersey Tunnel tolls 2016/17) below.

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The decision made was that cash tolls would be kept the same for 2016/17 as they were in 2015/16. The cash toll levels decided for 2016/17 are shown below.






Vehicle Class2016/17 Cash toll
1£1.70
2£3.40
3£5.10
4£6.80

The price for Fast Tag tolls was reduced for 2016/17. Below is a table of 2016/17 Fast Tag tolls compared to 2015/16.






Vehicle Class2016/17 Fast Tag toll2015/16 Fast Tag toll
1£1.20£1.40
2£2.40£2.80
3£3.60£4.20
4£4.80£5.60

There were also other changes agreed for 2016/17. Tunnel tolls will be waived for all classes of traffic between 10 pm on Christmas Eve (24th December 2016) to 6 am on Boxing Day (26th December 2016). All designated emergency vehicles will no longer have to pay tolls in 2016/17.

These were the votes on the Mersey Tunnel tolls decision at the Liverpool City Region Combined Authority meeting.

FOR THE PROPOSAL (4)
Mayor Joe Anderson (Liverpool City Council) FOR
Cllr Phil Davies (Wirral Metropolitan Borough Council) FOR
Cllr Andy Moorhead (Knowsley Council) FOR
Cllr John Fairclough (Sefton Council) deputy for Cllr Ian Maher (Sefton Council) FOR

ABSTENTION (1)
Cllr Rob Polhill (Halton) ABSTAIN

Reacting to the decision, John McGoldrick representing the Mersey Tunnels Users Association stated that “the [Liverpool City Region Combined] Authority would still be making a massive profit from the Tunnels and that most users of the Tunnels would not be seeing the reductions in tolls promised last year.”;

During the meeting of the Liverpool City Region Combined Authority Cllr Phil Davies (pictured below) said,

Cllr Phil Davies speaking about Mersey Tunnel tolls for 2016 17 at the Liverpool City Region Combined Authority meeting on the 5th February 2016
Cllr Phil Davies speaking about Mersey Tunnel tolls for 2016 17 at the Liverpool City Region Combined Authority meeting on the 5th February 2016
“Yeah, I’d just like to say a few things about this. I welcome the recommendations of Merseytravel yesterday and the recommendations in this report.

Errm, I think I just need to record the fact that I’ve been involved in the errm the Task Group that’s been looking at this so, this issue errm, but I clearly wanted to, to hear what the outcome of the meeting is today was and I do endorse the approach.

I mean from each err, errm, we did make a commitment in the devolution deal that we gain control of the finances of the Mersey, Mersey Tunnels, errm and certainly you know, wearing my Wirral hat, I think this is definitely a big move forward, errm.

You know, the id.., the fact that the errm the cash toll has been frozen for a further year is great news but even more importantly the Fast Tag, which is effectively a local discount, is being reduced by 20p. So that would mean that errm, there’ll be a 50%, 50p discount per a journey, using the Fast Tag which if you’re travelling, if you’re travelling each day, it could be a saving of £5 a week.

So I think this is err, you know if I can use the expression, I think this is the kind of devolution dividend deal if you like, the deal that was signed with government, I think it will help local people who use the Fast Tag and local businesses. Errm and I really think this is a good demonstration of the value we’re getting already from the devolution deal but finally Chair I’d like to say I’m hoping in future err years we can go even further.

I think we need to do err more work, err more, I know there are more discussions errm err going on with government about us gaining even greater control over the finances of the Tunnels. Certainly from a personal point of view, I’d like to see us continue to drive down the costs of the err tunnel tolls for residents particularly local users, but I do welcome the recommendations in the report. Thanks Chair.”

 

Just for clarity, the discount for Fast Tag users (compared to cash tolls) for 2016/17 is not 50% as stated by Cllr Phil Davies. It’s (to the nearest percent) 29% for class 1, 29% for class 2, 29% for class 3 and 29% for class 4.

The new tolls for 2016/17 will come into effect on Sunday 3rd April 2016. If you wish you can apply for a Fast Tag on the Mersey Tunnels website here.

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Would you like to see what 19 pages of invoices paid by Merseytravel looks like for Smartcare, project management, police community support officer costs, the Stop Hate Line service, temporary closure of a bus interchange, bus subsidy, a temporary traffic regulation order, EPI sign licence, scanning and flexible hours annual hours consultancy?

Would you like to see what 19 pages of invoices paid by Merseytravel looks like for Smartcare, project management, police community support officer costs, the Stop Hate Line service, temporary closure of a bus interchange, bus subsidy, a temporary traffic regulation order, EPI sign licence, scanning and flexible hours annual hours consultancy?

                                                                

Below is an index page for month one and some of the invoices I requested to inspect at Merseytravel last year (financial year 2014/15) during the period each year when citizens can inspect matters such as invoices. The legal right to do this is outlined in s.15 Audit Commission Act. Each invoice is connected to a payment made by Merseytravel (or to give it its formal name the Merseyside Passenger Transport Executive).

The thumbnails below are invoices for payments to ECEBS Ltd (£1,500), Weston-Projects Limited (£4,504.92), British Transport Police (£13,698.87), Police and Crime Commissioner for Merseyside (£39,213.72), Stop Hate UK (£3,500), Sefton Metropolitan Borough Council (£650), Your Travel Borough Wide Ltd (£3,538.46), Wirral Metropolitan Borough Council (£903), Trapeze Group (UK) Limited (£6,100), Service Point UK Ltd (£3,500) and Crown Computing Limited (£1,000 + £1,125.40 + £1,500). All figures are exclusive of VAT.

These invoices relate to the first 13 lines on the index page.

Due to small text size on some of the invoices, it means that the text on some of the thumbnails will be difficult to read or not readable. However the thumbnail images of the invoice below are each linked to a high-resolution image. If you want to view at the original resolution just click on the image.

The invoice from Wirral Council is for £903 for "COSTS IN RESPECT OF TEMPORARY TRAFFIC REGULATION ORDER. WOODSIDE BUS STATION, BIRKENHEAD. ORDER NUMBER 88003977. REF: JESSICA".

JESSICA is an acronym which stands for Joint European Support for Sustainable Investment in City Areas. Merseytravel run Woodside Bus Station which is outside Woodside Ferry Terminal.

Merseytravel 2014 2015 audit Month 1 index page ECEBS Ltd to MERSEYRAIL ELECTRICS 2002 thumbnail
Merseytravel 2014 2015 audit Month 1 index page ECEBS Ltd to MERSEYRAIL ELECTRICS 2002 thumbnail

Invoices
Month 1
Name
ECEBS LTD
WESTON-PROJECTS LIMITED
BRITISH TRANSPORT POLICE
POLICE AND CRIME COMMISSIONER FOR MERSEYSIDE
STOP HATE UK
SEFTON M B C
YOUR TRAVEL BOROUGH WIDE LTD
WIRRAL BOROUGH COUNCIL
TRAPEZE GROUP (UK) LTD
SERVICE POINT UK LTD
CROWN COMPUTING LIMITED
CROWN COMPUTING LIMITED
CROWN COMPUTING LIMITED
LOCAL SOLUTIONS
FOURPOINT MAPPING
OPTEVIA LIMITED
OPTEVIA LIMITED
BIKERIGHT
BIKERIGHT
FOURPOINT MAPPING
FOURPOINT MAPPING
OEFICEXPRESS
TRUEFORM ENGINEERING LTD
KENYON FRASER
KENYON FRASER
NATIONAL QUALITY ASSURANCE LTD
MOTT MACDONALD LTD
MOTT MACDONALD LTD
OFFICEXPRESS
APPIUS INTERNATIONAL LTD
ARTOPIA
LIVERPOOL CITY COUNCIL
VOCUS UK LTD
MOTT MACDONALD LTD
SEFTON M B C
BIRCHAM DYSON BELL
FACELIFT (GB) LTD
FACELIFT (GB) LTD
QA LTD
QA LTD
QA LTD
COUNSELLING SOLUTIONS NORTHWEST
WEIGHTMANS LLP
BIRCHAM DYSON BELL
ALLAN PILCH & CO
DAVIES WALLIS FOYSTER
XEROX UK LTD
HAYS INFORMATION TECHNOLOGY
HAYS INFORMATION TECHNOLOGY
HAYS INFORMATION TECHNOLOGY
HAYS INFORMATION TECHNOLOGY
VEALE WASBROUGH VIZARDS
RSTCS LTD
BIRCHAM DYSON BELL
NEXUS
DLA PIPER UK LLP
MERSEYRAIL ELECTRICS 2002 LTD

Continue reading “Would you like to see what 19 pages of invoices paid by Merseytravel looks like for Smartcare, project management, police community support officer costs, the Stop Hate Line service, temporary closure of a bus interchange, bus subsidy, a temporary traffic regulation order, EPI sign licence, scanning and flexible hours annual hours consultancy?”

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?

                                                                            

ICO Information Commissioner's Office logo
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:

1



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.

2



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.

3



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

4



Reference: FS50596346

sets of minutes relates to important matters affecting elected Members, which requires consideration and deliberation. Matters debated include: elected Members