ICO requires Wirral Council to supply internal audit report within 35 days
ICO requires Wirral Council to supply internal audit report within 35 days
ICO Information Commissioner’s Office logo
The Information Commissioner’s Office (which I will refer to as ICO) have issued a decision notice about a Freedom of Information Act request made by Nigel Hobro to Wirral Council. The unique number for this decision notice is FS50559883. It’s not yet on ICO’s website but should be in the near future. ED: Updated 04/09/2015 I looked on ICO’s website and it has been published since this article was written and decision notice FS50559883 can be viewed on ICO’s website.
The Freedom of Information Act request is for an “incomplete internal audit investigation report” and was originally made on the 20th August 2014.
The reasons given by both Surjit Tour and Eric Robinson for not supplying the information requested (both times an apology was given for taking too long to reach a decision) were two-fold:
section 36(2)(c) Prejudice to effective conduct of public affairs
Interestingly the Information Commissioner’s Office agreed with Wirral Council that applying section 36(2)(c) was reasonable but disagreed with the public interest test element.
ICO requires Wirral Council to take the action below within 35 calendar days of the date of the decision notice dated the 24th August 2015. This is assuming that Wirral Council do not appeal the decision:
"Disclose the withheld information with redactions made under section 40(2) for the names of individuals within the report"
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Wirral Council U-turns on refusal of FOI request for values and culture presentation
Wirral Council U-turns on refusal of FOI request for values and culture presentation
Over a year ago (3rd July 2014) I made a Freedom of Information Act request to Wirral Council using the excellent whatdotheyknow.com website for an email (and an attached Powerpoint presentation to the email) sent by Surjit Tour on Thursday 24th April 2014 with the subject of L&MS – Values and Culture Presentation. L&MS stands for Legal and Member Services (Member meaning councillor in local government jargon).
On the last day of July (31st July 2014) I got a reply. Mr Tour had considered the FOI request and refused it. His response referred to section 36 (prejudice to effective conduct of public affairs) of the Freedom of Information 2000. For those familiar with this part of the Freedom of Information Act this is one of the parts that is subject to a public interest test.
Surjit Tour (left) at a recent meeting of Wirral Council’s Standards and Constitutional Oversight Committee
Mr. Tour (who made the first decision on this request) claimed in refusing the request that releasing his email (and attachment) would:
(b) inhibit the free and frank provision of advice or exchange of views;
or (c) otherwise prejudice the effective conduct of public affairs.
Further detail was given about why this request was refused “The information requested was used as an integral part of a management meeting where a corporative initiative was openly discussed and debated” and “The Council has held/is holding a series of management meetings where there must be a safe space to share corporate initiatives and openly discuss and debate any issues arising in these meetings. It is also my reasonable opinion that if the requested information were to be disclosed, it would likely have a “chilling effect” that would inhibit the free and frank discussion and debate on matters of importance to the Council and its workforce. Any disclosure is likely to undermine the ability of officers to express themselves in a frank and open manner.”
It was further claimed that “disclosure would restrict the free and frank exchanges of views”, “disclosure would stifle debate at such meetings and could lead to poorer decision making” and “disclosure would have a potential detrimental effect on future management meetings” although “transparency in disclosure of the content of the management meeting” was given as a factor in favour of disclosure. Also stated in the response was “I consider it is crucial that officers are able to engage in discussion and exchange views in an open and frank manner.”
At the time I got this response I didn’t request an internal review. I’d requested internal reviews before when Mr. Tour had claimed section 36 applied to the information requested. You can see an example of a request here for minutes of the Standards Working Group meeting of the 17th December 2013 where Mr. Tour refuses it based on section 36 and at internal review the former Chief Executive of Wirral Council Graham Burgess agrees with Mr. Tour.
At the time I probably thought it pointless to request an internal review as I thought the Chief Executive would just agree with Mr. Tour.
The new Chief Executive Eric Robinson on the 21st April 2015 agreed with Mr. Tour.
His responses were as follows, first to my point about whether it was a conflict of interest for Mr. Tour to decide on whether to release his own email:
“I do not agree that Mr. Tour would have been conflicted when he gave careful consideration to and applied the Section 36 exemption.”
In response to the point that the email and attachment was sent before the meeting, didn’t detail what was debated at the meeting therefore how could it “stifle debate at such meetings”?
“The contents of the attachments still remain current and topical to the Council. Officers who took part in this management meeting and those who will be present at further meetings, must be afforded a safe space in which they can openly discuss and debate these corporate initiatives.”
Finally responding to my point “well surely if Wirral Council is “open and transparent” then being “open and transparent” here about a very important aspect of the organisation (values and culture) would demonstrate to the public that Wirral Council has changed?” he replied:
“The Council is committed to openness and transparency and communicates this to the public in many ways. As well as the consultation exercises the Council has been involved in with members of the public; we also publish information and communications via our web pages.”
He included various links to the Council’s website to the Corporate Plan, a page on the Transparency Code and a page on the Freedom of Information Act 2000 & the Data Protection 1998.
Finally he stated:
“To summarise, as the Reviewing Officer, I have carefully considered the original response provided by the Monitoring Officer and my reasonable opinion is that I fully concur with his initial response. I am of the opinion that the exemption contained within Section 36 of The Freedom of Information Act 2000 has been correctly and appropriately applied. As the Reviewing Officer, I believe I have considered all relevant and material factors and issues.”
and
“After taking all factors into account, it is my reasonable and considered opinion that the reasons and rationale provided by Mr. Tour are valid and robust in nature. I do not consider I need to add anything more in this regard and I am satisfied that the public interest test in maintaining the exemption outweighs the public interest for disclosure.”
So on the 19th May 2015 I appealed this decision to the Information Commissioner’s Office. On the 11th August 2015 Wirral Council supplied the attached Powerpoint presentation but stated that the email had since been deleted.
Shortly after I received an email from the Information Commissioner’s Office stating that the case was now closed, although I have emailed them this morning asking them to clear up that the Chief Executive at internal review stated “The contents of the attachments still remain current and topical to the Council.” which would suggest more than one attachment to the email, yet only one attachment was supplied.
Ironically (considering what I’ve just written above) slide 10 on integrity states
“We communicate & are open and honest in what we do.”
However that point aside, the slides are about “organisational vision”, “values” and “culture”.
Slide 7 states that Wirral Council’s vision is:
“Wirral should be a place where the vulnerable are safe and protected, where employers want to invest and local businesses thrive and an excellent quality of life is within the reach of everyone who lives here.”
Slide 9 introduces Wirral Council’s values which are:
“integrity, efficiency, confidence and ambition”.
Slides 10 to 13 define each of these values.
“Integrity
We treat everyone with respect
We are accountable and take responsibility for our actions & decisions
We communicate & are open and honest in what we do
Efficiency
We seek innovative & creative solutions
We work effectively together to make the most of our resources
We proactively look for ways to improve
Confidence
We fully use the skills, talents & assets of our partners, communities and organisation
We take decisions and deliver
We learn from & share knowledge and expertise with others
Ambition
We deliver with energy and pace
We are risk aware, not risk averse
We have pride in our place and our people striving to be the best we can for Wirral”
The last slide refers to “support & change agents to be allocated”. If anyone would like to explain to me what a “support & change agent” is please leave a comment!
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Why weren’t Merseyside Fire and Rescue Service “open and transparent” about the estimated £0.5 million they could receive from the sale of Upton and West Kirby fire stations?
Why weren’t Merseyside Fire and Rescue Service “open and transparent” about the estimated £0.5 million they could receive from the sale of Upton and West Kirby fire stations?
Merseyside Fire and Rescue Authority 30th June 2015 L to R Kieran Timmins (Deputy Chief Executive), Phil Garrigan (Deputy Chief Fire Officer), Dan Stephens (Chief Fire Officer), Cllr Byrom (Vice-Chair), Janet Henshaw (Monitoring Officer)
So surprised was Cllr Byrom (above) by heckling that he forgot to propose a resolution keeping details out of the public domain about how much they’d receive for Upton and West Kirby fire stations if they sold them.
On the 14th June 2015 I made a Freedom of Information Act request to the Merseyside Fire and Rescue Service for two unpublished reports to the Merseyside Fire and Rescue Authority on “the costs of any new build station, together with an estimate of the potential income from the sale of the buildings and land at Upton and West Kirby.” You can read my original request on the whatdotheyknow website.
On the 15th June 2015 I received an acknowledgement of my request stating that the request would be responded to either under the Freedom of Information legislation or the Environmental Information Regulations 2004 within 20 working days.
On the 8th July 2015 Merseyside Fire and Rescue Service refused the request referring to two regulations in the Environmental Information Regulations 2004 as justification:
Regulation 12 (5) (d) Confidentiality of public authority proceedings when covered by law.
Regulation 12 (5) (e) Confidentiality of commercial or industrial information, when protected by law to cover legitimate economic interest.
Below is my (admittedly rather cross) response seeking the Environmental Information Regulations 2004 equivalent of an internal review which is referred to in the legislation as a representation and reconsideration.
Dear Merseyside Fire and Rescue Service,
Please pass this on to the person who conducts Freedom of Information reviews.
I am writing to request an internal review of Merseyside Fire and Rescue Service’s handling of my FOI request ‘Reports on Upton & West Kirby fire stations’.
Thank you for your response (dated 8th July 2015) to my request dated 14th June 2015.
Firstly I wish to contest the sentences which state “As the information you have requested does not contain environmental information we have processed your request under Freedom of Information legislation. In accordance with the Freedom of Information Act 2004 this letter acts as a Public Interest Refusal Notice. “
As stated in my request the information requested contains “the costs of any new build station, together with an estimate of the potential income from the sale of the buildings and land at Upton
and West Kirby”.
“the same meaning as in Article 2(1) of the Directive, namely any information in written, visual, aural, electronic or any other material form on—
(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements;
(b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a);
(c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in (a) and (b) as well as measures or activities designed to protect those elements;
(d) reports on the implementation of environmental legislation;
(e) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in (c); and
(f) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are or may be affected by the state of the elements of the environment referred to in (a) or, through those elements, by any of the matters referred to in (b) and (c);”
As you can see from the above, the information requested would fall under (c) and (e) above.
There is no such thing as the Freedom of Information Act 2004.
If you are referring to the Freedom of Information Act 2000, then your refusal notice does not contain the information required by law. Section 17 of the Freedom of Information Act 2000 c.36 requires a refusal notice to specify the exemption (or exemptions) in question and why they apply.
However, considering that you wrote “Freedom of Information Act 2004” when you meant to write “Environmental Information Regulations 2004” and when you wrote “does not contain environmental information” must have meant “does contain environmental information” (otherwise why quote reasons for refusal referring to regulations that are part of the Environmental Information Regulations 2004, please class this as a representation (see regulation 11 of the Environmental Information Regulations 2004) for reconsideration.
“(5) For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that its disclosure would adversely affect—
….
(d)the confidentiality of the proceedings of that or any other public authority where such confidentiality is provided by law;”
I am aware that at the public meetings of the Merseyside Fire and Rescue Authority held on the 2nd October 2014 and 29th January 2015 that a resolution at each meeting (based on the recommendation of
officer/s) was agreed by councillors.
Although a recommendation was made by officers that councillors at that meeting pass a resolution excluding this information from the public domain, no such resolution was agreed at that meeting.
Such matters are dealt with as the first item on the agenda which the agenda of the meeting of the 30th June 2015 specified thus:
“1. Preliminary Matters
The Authority is requested to consider the identification of:
a) declarations of interest by individual Members in relation to any item of business on the Agenda
b) any additional items of business which the Chair has determined should be considered as matters of urgency; and
c) items of business which may require the exclusion of the press and public during consideration thereof because of the possibility of the disclosure of exempt information.”
You can watch a video recording of this part of the meeting here (see below)
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, but for the purposes of this reconsideration I include a transcript of that items 1 & 2 of that meeting below:
“Cllr Leslie T Byrom (Vice-Chair of the Merseyside Fire and Rescue Authority): You may start recording from this moment if you like. Moving to preliminary matters, we have two minutes of the previous meetings.
Member of public: Excuse me, could you introduce yourselves so we know who you are?
Cllr Leslie T Byrom (Vice-Chair of the Merseyside Fire and Rescue Authority): We don’t normally do that. We don’t normally do that, everybody has their…
Member of public: Well I can’t see who you are from here!
Cllr Leslie T Byrom (Vice-Chair of the Merseyside Fire and Rescue Authority): I’m going to press on with the meeting and if I may say you know I’m assuming that everybody is going to be respectful and follow the normal procedures for meetings. I don’t think like Barack Obama we’re going to have to sing to bring order back again.
We will proceed with the meeting, I’m chairing the meeting and we’ll carry on if you don’t mind. So we move on to minutes of the previous meeting, those are on pages seven to twenty. Are they agreed?
Councillors: Agreed.
Cllr Leslie T Byrom (Vice-Chair of the Merseyside Fire and Rescue Authority): There is an issue about declarations of interest, do Members have any declarations of interest?
Is there any suggestions about the changes in the agenda and the items of business? Councillor Rennie?
Cllr Lesley Rennie (Lead Member for Operational Preparedness): Chair, could I ask because there are so many members of the public and obviously ward councillors for the items on the agenda 7 and 8 in relation to Saughall Massie, would you errm be willing to perhaps rearrange the order of business in order to facilitate them for an early getaway or is there a reason perhaps why that may not be possible?
Cllr Leslie T Byrom (Vice-Chair of the Merseyside Fire and Rescue Authority): We have had some discussions about this. There are a number of items and they won’t be long I don’t think that relate to the financial background to the Authority which I think would be helpful to the members of the public to understand the context against which we’re making some discussions.
There are also proposals for changes and amalgamations in err St Helens, and I think again I don’t think it’ll be a long item, but I think for the public who are here to look at decisions further down the agenda it would be useful and interesting to see, you know that it’s not just in isolation, there are other items on the agenda as well.
So if you don’t mind, I think we could, we will…
Member of the public: You can’t do that.
Cllr Leslie T Byrom (Vice-Chair of the Merseyside Fire and Rescue Authority): Would you give order please? Errm, we will proceed with the agenda as it’s printed if that’s alright, but if it gets lengthy, if it get’s lengthy we’ll look at that because I’ll know the public have got some distance to travel, but we’ll sit with the agenda as printed if you don’t mind. So we’ll move on to item 3 on the agenda, that’s pages 21-30 and that is the petition concerning the merger of Upton and West Kirby fire stations.”
As you can see from the above no resolution was agreed by councillors at that meeting keeping the report on capital costs out of the public domain. That decision (made on the 30th June 2015) was made before your decision on my request (made on the 8th July 2015).
Section 100C of the Local Government Act 1972 states (please note in the definitions in 100J(1)(f)“principal council” also refers to fire and rescue authorities such as the Merseyside Fire and Rescue Authority, therefore this report is open to public inspection as no resolution was passed:
“(1) After a meeting of a principal council the following documents shall be open to inspection by members of the public at the offices of the council until the expiration of the period of six years beginning with the date of the meeting, namely—
(a) the minutes, or a copy of the minutes, of the meeting, excluding so much of the minutes of proceedings during which the meeting was not open to the public as discloses exempt information;
(b) where applicable, a summary under subsection (2) below;
(c) a copy of the agenda for the meeting; and
(d) a copy of so much of any report for the meeting as relates to any item during which the meeting was open to the public.
(2) Where, in consequence of the exclusion of parts of the minutes which disclose exempt information, the document open to inspection under subsection (1)(a) above does not provide members of the public with a reasonably fair and coherent record of the whole or part of the proceedings, the proper officer shall make a written summary of the proceedings or the part, as the case may be, which provides such a record without disclosing the exempt information.”
Decisions and background papers to be made available to the public
“8.—(1) The written record, together with any background papers, must as soon as reasonably practicable after the record is made, be made available for inspection by members of the public—
(a) at all reasonable hours, at the offices of the relevant local government body;
(b) on the website of the relevant local government body, if it has one; and,
(c) by such other means that the relevant local government body considers appropriate.
(2) On request and on receipt of payment of postage, copying or other necessary charge for transmission, the relevant local government body must provide to the person who has made the request and paid the appropriate charges—
(a) a copy of the written record;
(b) a copy of any background papers.
(3) The written record must be retained by the relevant local government body and made available for inspection by the public for a period of six years beginning with the date on which the decision, to which the record relates, was made.
(4) Any background papers must be retained by the relevant local government body and made available for inspection by the public for a period of four years beginning with the date on which the decision, to which the background papers relate, was made.
(5) In this regulation “written record” means the record required to be made by regulation 7(1) or the record referred to in regulation 7(4), as the case may be.”
Offences
10.—(1) A person who has custody of a document which is required by regulation 8 to be available for inspection by members of the public commits an offence if, without reasonable excuse, that person—
(a) intentionally obstructs any person exercising a right conferred under this Part in relation to inspecting written records and background papers; or
(b) refuses any request under this Part to provide written records or background papers.
(2) A person who commits an offence under paragraph (1) is liable on summary conviction to a fine not exceeding level 1 on the standard scale.”
As no resolution was passed at the Merseyside Fire and Rescue Authority’s meeting of the 30th June 2015 to exclude this information from the public domain, the above regulations required it to be published “as soon as practicable” on your website (which hasn’t happened).
As this request was refused after the decision made by councillors on the 30th June 2015 that this information should be in the public domain, the fact it’s not been published on your website since is arguably a breach of regulation 8(1)(b) of the Openness of Local Government Bodies Regulations 2014 and refusal of this request could be interpreted as a criminal offence (see regulation 10).
Dealing with your refusal under Regulation 12(5)(e)“Confidentiality of commercial or industrial information, when protected by law to cover legitimate economic interest”, obviously if you agree with me on the above points refusal on this ground is a moot point.
Earlier this year I made a request to Wirral Council for the address of land they had purchased. Like yourselves, the request was refused with reference to regulation 12(5)(e) at internal review.
In your response you state “The reason why the public interest favours withholding the information is because the information contained within these documents is deemed to be commercially sensitive and the disclosure of such information is not deemed to be in the public interest as it may jeopardise the Authority’s position with regards to any future negotiations concerning the sites in question. As a Public Authority Merseyside Fire & Rescue Authority have a duty to negotiate the best possible financial deal to protect the public purse which in course enable’s the authority to provide the best possible service.”
At the moment, Merseyside Fire and Rescue Authority have not got planning permission for a new fire station on the Saughall Massie site. This is a process that could take as long as six months (or longer if permission is refused then appealed to the Planning Inspectorate). During that time it is highly likely that land & property prices in the areas of Saughall Massie, Upton and West Kirby will change, it is also possible that planning permission for the Saughall Massie site will be refused. Therefore if Merseyside Fire and Rescue Authority make a decision in the future to sell those sites, a further up to date valuation would have to be done to prove considerations of best value to its auditors and taxpayers on Merseyside.
There is a presumption in favour of disclosure in the Environmental Information Regulations 2004. I consider that the arguments I have made here in representations in favour of disclosure in relation to your refusal on grounds in Regulation 12(5)(d), including pointing out why following the meeting of the 30th June 2015 this information (seemingly in breach of regulation 8 of the Openness of Local Government Bodies Regulations 2014) hasn’t been published on your website and the issue of whether refusal of this request constitutes a criminal offence (regulations 8/10 of the Local
Government Bodies Regulations 2014) means that this information should be disclosed as a matter of urgency.
As pointed out in the decision notice I refer to (FS50576394), you have a legal duty to provide such information within a 20 working day timescale of the original request (made on the 14th June 2015).
I hope having considered this representation carefully you will reconsider your decision and provide the requested information.
Finally (although I didn’t mention this in the request above) Dan Stephens the Chief Fire Officer/Chief Executive of Merseyside Fire and Rescue Service stated in an email recently to me:
“I would hope you recognise that we have been open and transparent throughout the Greasby and Saughall Massie consultation processes and that it is very important to us that this is maintained throughout.”
So does anyone think that the Merseyside Fire and Rescue Service & Merseyside Fire and Rescue Authority are being “open and transparent” about the matter referred to above?
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FOI request reveals Wirral Council issued 168 Fixed Penalty Notices (mainly for alleyway dumping)
FOI request reveals Wirral Council issued 168 Fixed Penalty Notices (mainly for alleyway dumping)
Yesterday, Wirral Council responded to a Freedom of Information Act request I made last month for minutes of the meetings of the Partnering Board (which comprises of Wirral Council and Biffa Waste Services Limited) for the last year.
The minutes of the Partnering Board meetings of the 10th March 2015, 18th December 2014, 21st October 2014 and 14th July 2014 contain some interesting information.
Below are extracts from the minutes that hopefully will be of wider public/political interest starting with the meeting held on the 14th July 2014. I have submitted an internal review request to Wirral Council for the minutes without the names of Wirral Council employees redacted. RE stands for Roger Edwards, FPN stands for fixed penalty notices, MS stands for Mark Smith, Cllr BM for Councillor Bernie Mooney and VO stands for variation order.
2. ANNUAL REVIEW
….
Noted garden waste has now exceeded last year’s figure and hope to get to 40,000 properties. RE queried about incentives for signing up however XX noted we have to be very careful as the £5 reduction online has raised objections by some residents and opposition members and that XX is exploring alternative cost effective payment mechanisms. However, XX advised we can market to people who signed up last year who have not signed up this year and there are around 3,000 who have not re-signed.
Street Cleansing
….
The Entry Investigation Team has been introduced and 28 FPNs have been issued as a result of this.
7. AOB
Possible Industrial Action Update
RE updated that Biffa offered pay settlement to the workforce of 1.8% in line with RPI – the request from the workforce was 6%. RE advised the workforce have decided to ballot for industrial action before any decision made. RE is working hard to resolve this situation. The industrial action is planned for Fri 18 July.
There are parts of the minutes of the meeting held on the 21st October 2014 that will be of wider interest too:
Managing Down Demand – Missed Collections
XX have been looking at all the missed bin calls we had in for 2010-14 and the breakdown of unjustified (which was about half) to give an idea of the proportion of calls coming in. The 3 main reasons for unjustified bins are: bin not out, entry work and access issues. Disputes occur where resident is told the PDA said bin not out and they disagree. XX wants to look at the dispute figures and drill down i.e. is it the resident at fault, is it the crew not using the PDA properly etc. When a resident does not agree with PDA data this causes a lot of work in the back office. There could be an education issue here reminding residents that 7am is the time rounds start and the crews can come to roads at different times each week.
If we do some re-training around contamination to show the importance of the PDA and show the impact of not using the PDA correctly that should be beneficial. RE noted if we do not have confidence in the PDA data then everything else becomes difficult.”
… Alleyway Dumping
XX advised had over 600 referrals for the Waste Investigate Unit (WIU) and issued 168 FPNs to mainly the Seacombe/Birkenhead areas. XX noted we need to do some work around where issuing the FPNs. 5 court cases regarding litter have gone well with the offenders being fined and this information is on the Council website. XX hoping to do full leaflet drop to relevant properties to say what we are doing and what success we have had. Currently drafting up a second leaflet to get out before Christmas to all terraced properties to highlight the good work we have been doing.
XX noted some new anti-social behaviour laws which are coming out and she is looking if we can go down this route with landlords. XX going to be looking at the licensing scheme and if we can make that work for us by adding in further conditions (Selective Licensing scheme). MS noted when speak to Senior Members of the Council enforcement is now an issue they are behind it. Noted 260 good neighbourhood packs have gone out to a variety of areas.”
From the meeting held on the 18th December 2014:
“Alleyway Dumping
XX advised the Waste Investigation Unit are doing a fantastic job. XX noted an incident where a disgruntled member of the public, because of his threatening behavior, was issued with an ASBO. Main issue is the Courts are only letting us take 5 cases a week. Legal services need to approach the courts to get more time to hear more cases. XX plans to do another leaflet drop after Christmas to highlight to the public the financial costs of failing to manage their waste responsibly, or through ignoring fixed penalty charges. XX next steps are to meet the selective licensing team. Birkenhead and Seacombe have been identified as a selective licensing areas which means we can prescribe to landlords what they must do re bins and as Birkenhead and Seacombe are where the most is, it is hoped this will have a significant impact over time.”
Transparency Code
The code is about being more transparent about what we publish for the public to see and waste collection is one of the things requiring more details including publishing a version of the contract. XX are going to look at refreshing the contract, redacting certain bits and then send to Biffa to consider. Agreed a good idea would be a half day session with both parties to look at updating and modernizing the contract.”
Finally from the meeting held on the 10th March 2015.
Action Log
50 Street Cleansing Transitional Money
MS advised there is £116,000 available. XX is currently working on a briefing note recommending how that money could be used. MS has the authority to spend this money however he would get endorsement from Cllr BM first.
64 Benchmarking Data
XX advised some of the information required is deemed as commercially sensitive and there is a strong reluctance to share this information at the moment. MS felt we do need to be getting to a stage where we have the mechanism in place to demonstrate value for money from this contract. XX also safeguard the financial position of Biffa. XX to send through further details to XX & SC showing exactly what it is we are looking for.
67. Contract under the Transparency Code
XX has started this piece of work. By the end of April we have to publish the contract on Council website. XX noted his intention to incorporate the VOs and XX send to Biffa to redact the finance. XX commented that there are inaccuracies in the contract in relation to execution on the ground but nothing of serious concern. MS noted as we are signing off a significant VO if there are any anomalies we need to resolve them before we publish.
CONTRACT PERFORMANCE OVERVIEW
SC queried whether there had been any thought about the garden waste service passing to Biffa? MS advised if Biffa want to put an offer to the Council formally they were welcome to.
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Wirral Council U-turn on refusal of request for information after complaint to the Information Commissioner’s Office
Wirral Council U-turn on refusal of request for information after complaint to the Information Commissioner’s Office
Last year, during the 2013/14 audit I requested various information on various payments Wirral Council has made to legal firms. One of these was an invoice for £700 for conveyancing done by DLA Piper UK LLP (a copy of which is below).
Wirral Council invoice DLA Piper UK LLP conveyance £700 7th August 2013
As you can see above it’s for a BACS payment (although the payments over £500 list this as a CHAPS payment) for £700, split into £200 for a contribution towards sewers (although the rest of what the £200 is for can’t be made out due to bad handwriting) and £500 to do with the purchase of the freehold title.
If you look at the image above you’ll find the address of the property is blacked out. Section 15 of the Audit Commission Act 1998 allow Wirral Council to redact information if it relates to a member of their staff (or payments or other benefits made to their staff connected with their employment) or to withhold personal information if the external auditor agrees to it.
So going back to the PR1 form above I wanted to know what the address that this £700 for conveyancing spent by Wirral Council was, so back on the 26th January 2015 I asked using the Freedom of Information Act for the address.
By the 24th February 2015, having received no reply to my request of the 26th January 2015 within the 20 days Wirral Council have to respond to FOI requests, I requested an internal review because of the lack of response.
She then went on to refuse the request using an exception in Regulation 12(5)(e) which states:
“the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest;”
The reasons she gave for refusing the request were:
“in that a public authority may refuse to disclose information to the extent that its disclosure would adversely affect the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest. I have had regard to the guidance issued by the Information Commissioner’s Office, “Confidentiality of commercial or industrial information (regulation 12 (5) (e) Version 1.2. I consider that the following applies to the requested information in the context of the other information included in the payment requisition fund:-
The information is commercial or industrial in nature
Confidentiality is provided by law
The confidentiality is protecting a legitimate economic interest
The confidentiality would be adversely affected by disclosure.
I consider that the information relates to the commercial activity of a third party. I also consider that confidentiality is provided by law in that it is imposed on the Council as a public authority by the common law of confidence and contractual obligation. I consider that the confidentiality is protecting a legitimate economic interest. The First Tier Tribunal (Information Rights) confirmed in Elmbridge Borough Council v. Information Commissioner and Gladedale Group Ltd (EA/2010/0106, 4 January 2011) that to satisfy this element of the test, disclosure of the confidential information would have to adversely affect a legitimate economic interest of the person the confidentiality is designed to protect. I consider that disclosure of the requested information would adversely affect the legitimate economic interest of the third party and also that of the Council.
This exception is subject to the public interest test.
Public interest factors in favour of disclosure
Promotion of transparency and accountability of public authorities
Public interest factors in maintaining the exception
Disclosure would adversely affect the legitimate economic interest of a third party and interfere with commercial bargaining in the context of existing or future negotiations
Disclosure of the requested information would also affect the bargaining position of the Council with third parties.
I consider that in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information. I am therefore refusing your request for information on the basis that the exception contained in Regulation 12 (5) (e) of the EIR applies.”
On the 25th March 2015 I appealed Wirral Council’s refusal to the Information Commissioner’s Office.
Today Wirral Council reversed their position and stated:
“Following your complaint to the Information Commissioner’s Office, the Council has decided to reverse its position, having previously relied on the exception contained in Regulation 12 (5) (e) of the Environmental Information Regulations 2004. I do not consider that releasing the information would now adversely affect the legitimate economic interest of a third party. The address of the property, which you have requested is 13 Thorneycroft Street, Birkenhead. I have copied this response to the Information Commissioner’s Office.”
Now I know the address is 13 Thorneycroft Street, Birkenhead, I know what this payment for conveyancing is for. The properties in this road as far as I remember had been demolished by the date that this payment to DLA Piper UK LLP for conveyancing happened in August 2013.
In August 2013, Keepmoat were granted planning permission for 125 new houses here and have since built them and sold them on. In fact 13 Thorneycroft Street, Birkenhead doesn’t exist any more, it’s either part of the public open space at the back of the Laird Street Baptist Church or an off-street car parking space for one of the new properties.
So what was the “legitimate interest of a third party” that Wirral Council claimed it was protecting by not supplying the address? How on earth does giving this address interfere with Wirral Council’s “commercial bargaining in the context of existing or future negotiations”?
