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.