Category: Information Commissioner’s Office

EXCLUSIVE: Wirral Council admit disclosure of NI numbers, dates of birth & names of nearly 200 staff was a mistake

EXCLUSIVE: Wirral Council admit disclosure of NI numbers, dates of birth & names of nearly 200 staff was a mistake

EXCLUSIVE: Wirral Council admit disclosure of NI numbers, dates of birth & names of nearly 200 staff was a mistake

                                                                          

Surjit Tour (left) at a recent meeting of Wirral Council's Standards and Constitutional Oversight Committee
Surjit Tour (left) at a recent meeting of Wirral Council’s Standards and Constitutional Oversight Committee

The background to this story is that last year Wirral Council accidentally divulged to me around two hundred people’s names, dates of birth, national insurance numbers, job titles and whether they were in the Merseyside Pension Fund (that Wirral Council administers) or not.

This is my response to Wirral Council (and ICO on this matter).

Dear Surjit Tour, Caroline Flint (ICO) and others,

Thank you Mr. Tour for your letter of 28th April 2015 (your reference ST/CG) and the email from ICO’s Caroline Flint dated 30th April 2015 (ICO case reference number RFA0568370). As both communications cover the same topic I am writing this joint response in reply.

I will deal first with an error in the response in the email from ICO. The first sentence in that email states “Thank you for raising your concern with us about Wirral Metropolitan Borough Council’s (Wirral MBC’s) handling of your personal data.”

None of the personal data that this matter relates to is about myself.

Moving to Mr. Tour’s letter of the 28th April 2015, paragraph 2 correctly states that I requested “eight lengthy contracts/leases” (one of which is the PFI contract with Wirral Schools Services Limited that this matter relates to).

Although not implicitly stated, it is implied that I was provided with eight lengthy contracts/leases and that this request “did impose a considerable strain on the officers”.

However four were not provided (the BAM Nuttall contract came into effect during the 2014/15 financial year, the development agreement (dated 9/1/2008) and bond (dated 6/10/2008) with Pochin Land and Development Limited (relating to the Birkenhead ASDA Compulsory Purchase Order) was refused and so was Wirral Council’s agreement with Neptune Developments with regards to the Birkenhead Masterplan proposals).

Two leases were provided (I would estimate each at being around 200 pages long). Two contracts were also provided (including the PFI contract) which are each around 500-1000 pages long. In the case of one of the leases (the New Brighton Marine Point lease) two entire copies of the lease were provided (when I only asked for one). As one of the two copies provided of that lease has a Land Registry official copy stamp on it (so presumably the copying was done by Land Registry) I would respectfully point out that the “considerable strain on the officers” referred to in your letter in making a second copy of that lease (then providing a second copy of that lease to myself with the Land Registry copy) was unnecessary.

In the last sentence of your letter you refer to Regulation 9 of the Accounts and Audit (England) Regulations 2011 which requires the documents to be made available for public inspection twenty working days before the date appointed by the auditor for local government electors to exercise their rights to either ask questions or make an objection.

For the 2013/14 audit, this date was the 18th August 2014. Therefore in order to comply with the regulations the documents should have been made available in the twenty working days leading up to the 18th August 2014 (which was the 21st July 2014 to the 15th August 2014).

As specified in your letter the PFI contract was available for inspection by myself on the 12th September 2014 (a month later than the timescale in the legislation you refer to). The copy of the PFI contract I was given on the 12th September 2014 was incomplete and it was the following month before I received the missing pages of the contract (which was after the accounts for that year had been closed by the auditor).

There were similar problems with the member expense forms as those given to me in September 2014 were also incomplete (or related to the wrong financial year) with the rest given to me in October 2014.

Therefore as the information was provided a month (or in some cases two months) later than the legislation specified I dispute your assertion that “The difficulties were compounded by the short timescales permitted by Regulation 9 of the Accounts and Audit (England) 2011 to produce the documents you had requested that related to the accounts of the Council”.

Had the documents been open for inspection and I had received copies prior to the 18th August 2014 (in compliance with the regulation you refer to) I would agree with you, however they were not.

Moving to the points made in page three of your letter, I was unaware (until I read your letter) of the existing right of inspection to admission agreements under schedule 2 Part 3 paragraph 11 of the Local Government Pension Scheme Regulations 2013.

I refer you to one of the admission agreements in the PFI contract specifically Schedule 19, Part 3, page 4/5 of the PFI Contract:

“3 (i) The Administering Authority shall from the date referred to in paragraph (ii) of this clause admit to participate in the benefits of the Scheme every employee of the Transferee Admission Body –

(a) whose name appears in the List annexed to this Agreement where he is identified as being a member of the Scheme by virtue of being an employee of the Administering Authority (hereinafter referred to as “the List”) or

(b) whom, by notice in writing given to the Administering Authority, the Transferee Admission Body may from time to time nominate provided that any person so nominated must be eligible to become a member of the Scheme.”

The Administering Authority referred to is Wirral Council. Therefore the list of names, dates of birth, job descriptions, NI numbers is of former Wirral Council staff whose employer was changed from Wirral Council to that of the PFI contractor.

You state in the second paragraph on page 3 “The amount of any such deficit would be determined by such factors as salary and age of the employee”. However the list does not include salary details of employees. Therefore as this information does not form part of the admission agreement or annexed list I dispute your statement that “That information would therefore be relevant to any assessment of the financial risk to the Council brought about by the PFI Contract.”

I might also point out that the admission agreement refers to a bond or indemnity with an insurer (Schedule 18 Parts 3 pages 14-17) to cover this sort of situation which reduces the risk of such liabilities falling on Wirral Council. Unfortunately the name of the insurer is not provided on the copy of the contract I have but the admission agreement states this insurance is to a limit of £67,000 (for that admission agreement which is one of three in the contract).

As I am publishing this response to ICO and Mr. Tour, I am also publishing the email from ICO that it refers to and the letter from Mr. Tour.

I have made a determination as data controller (see s.32 of the Data Protection Act 1998) that having regard to the special importance of the public interest in freedom of expression, the fact that I’m publishing my response (which could lead to confusion unless the email from ICO and letter from Wirral Council is also published at the same time), ICO’s view that Wirral Council breached the Data Protection Act 1998 as well as other reasons, that it is in the public interest for these documents to be published.

Finally, although I appreciate your point about whether s.34 of the Data Protection Act 1998 applies to the list is a matter for Wirral Council and ICO to come to a view on, at the very least there appears (from my perspective) to have been maladministration on the part of Wirral Council.

Providing documents requested during the audit outside the timescales you referred to in your letter and indeed in some cases after the accounts were closed prevented me from exercising my right to object to the auditor or to ask questions of the auditor before the accounts were closed at the end of September 2014.

As you are Monitoring Officer for Wirral Council, I draw your attention to section 5A of the Local Government and Housing Act 1989 and the duty of a Monitoring Officer to write a report (circulated to all councillors, the Chief Executive and the Chief Financial Officer) and for this report to be considered at a future Cabinet meeting within a set time period if there has either been a contravention of any enactment or rule of law by the authority or maladministration. I therefore await your response as to whether you will be writing such a report.

Yours sincerely,

John Brace

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

from: casework@ico.org.uk
to: john.brace@gmail.com
date: 30 April 2015 at 15:42
subject: Data Protection Concern: RFA0568370[Ref. RFA0568370]

30 April 2015

Case Reference Number RFA0568370

Dear Mr Brace

Thank you for raising your concern with us about Wirral Metropolitan Borough Council’s (Wirral MBC’s) handling of your personal data.

We want to know how organisations are doing when they are handling information rights issues. We also want to improve the way they deal with the personal information they are responsible for. Reporting your concerns to us will help us do that.

Our role is not to investigate or adjudicate on individual concerns but we will consider whether there is an opportunity to improve the practice of the organisations we regulate. We do this by taking an overview of all concerns that are raised about an organisation with a view to improving their compliance with the Data Protection Act 1998 (DPA).

From the information provided to us it does appear that Wirral Council has breached the DPA as it has acknowledged disclosing third party data in error. Wirral MBC has stated they have recovered the information disclosed inappropriately. They have also specified that requests made under the Audit Act in the future should not include any personal information which would enable particular individuals to be identified unless the requester can demonstrate that the disclosure is in the public interest to the extent that it should override the individual’s right to privacy.

It is now Wirral Metropolitan Borough Council’s responsibility to explain to us how it intends to improve its information rights practices in relation to reducing the possibility of such inappropriate disclosures in the future. Although we do not intend to write to you again, we will keep the concerns raised on file. This will help us over time to build up a picture of Wirral MBC’s information rights practices.

Thank you for bringing this matter to our attention.

If you are dissatisfied with the service you have received, or would like to provide us with feedback of any kind, please let me know. Further information can also be found on our website by following the following link https://ico.org.uk/concerns/complaints-and-compliments-about-us/complain-about-us/

Yours sincerely

Caroline Flint
Case Officer
01625 545 258

The ICO’s mission is to uphold information rights in the public interest, promoting openness by public bodies and data privacy for individuals.

If you are not the intended recipient of this email (and any attachment), please inform the sender by return email and destroy all copies. Unauthorised access, use, disclosure, storage or copying is not permitted.
Communication by internet email is not secure as messages can be intercepted and read by someone else. Therefore we strongly advise you not to email any information, which if disclosed to unrelated third parties would be likely to cause you distress. If you have an enquiry of this nature please provide a postal address to allow us to communicate with you in a more secure way. If you want us to respond by email you must realise that there can be no guarantee of privacy.
Any email including its content may be monitored and used by the Information Commissioner’s Office for reasons of security and for monitoring internal compliance with the office policy on staff use. Email monitoring or blocking software may also be used. Please be aware that you have a responsibility to ensure that any email you write or forward is within the bounds of the law.
The Information Commissioner’s Office cannot guarantee that this message or any attachment is virus free or has not been intercepted and amended. You should perform your own virus checks.

Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF
Tel: 0303 123 1113 Fax: 01625 524 510 Web: www.ico.org.uk

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

Department of Transformation
 and Resources
Joe Blott
Strategic Director for Transformation
and Resources
Town Hall, Brighton Street
Wallasey, Wirral
Merseyside, CH44 8ED
DX 708630 Seacombe
Website: www.wirral.gov.uk

date 28 April 2015

to John Brace
Jenmaleo
134 Boundary Road
Bidston
Wirral
CH43 7PH
my ref ST/CG
service Legal and Member Services
tel 0151 691 8569
fax 0151 691 8482
email surjittour@wirral.gov.uk

Dear Mr Brace

DISCLOSURE OF PERSONAL INFORMATION IN ADMISSION AGREEMENT FORMING PART OF THE COUNCIL’S PFI CONTRACT

I refer to your letter of 19 January and to our subsequent meeting which culminated in your return of the personal information which was inadvertently disclosed to you when a copy of the PFI Contract was provided to you on 12 September 2014.

You will recall that in a written request dated 25 July 2014 you had exercised your right under Section 15 of the Audit Commission Act 1998 (“ACA”) to inspect and receive copies of over 300 invoices, eight lengthy contracts/leases and all member expense forms for 2013 and 2014. These documents related to the Council’s accounts for 2013/14.

The request for those documents did impose a considerable strain on the officers who were required to locate and copy those contracts after redacting commercially sensitive and personal information from those documents in accordance with the requirements of the Data Protection Act 1998 and Article 8 of the European Convention on Human Rights. Article 8, as you may know, requires a public authority to show respect for a persons private life and not to interfere with that right except as is in accordance with the law and is necessary (amongst other things) in the interests of the economic wellbeing of the country or for the protection of the rights and freedoms of others.

I should emphasise that the non-redaction of the personal pension information was not intentional. The information was overlooked amongst the thousands of pages of the documentation which you had requested under Section 15 of the ACA. The difficulties were compounded by the short timescales permitted by Regulation 9 of

www.wirral.gov.uk (LGC logo) Awards 2015 Winner Most Improved Council

the Accounts and Audit (England) 2011 to produce the documents you had requested that related to the accounts of the Council also by the sickness absence of one of the Council’s officers who was dealing with your request.

I have looked carefully into the legal consequences of the inadvertent disclosure of the personal information in the PFI Contract and have indeed taken Counsel’s advice on the matter. My conclusions are set out below.

Section 34 of the Data Protection Act 1998 contains an exemption from the requirement to comply with the non-disclosure provisions of the Act if any personal data consists of information which the Data Controller is obliged to make available to the public under any enactment.

The non-disclosure provisions are defined in Section 27 of the same Act and include the first data protection principle which requires Data Controllers to process personal data both fairly and lawfully.

If however the processing is necessary for compliance with any legal obligation to which the Data Controller is subject, then the requirement to process personal data fairly and lawfully does not apply.

The applicable legal obligation is Section 15 of the ACA which gives a right to any local government elector to inspect all contracts relating to the accounts which are to be audited. There is an exception for information which can identify a particular employee of the Council and also for personal information outside that description ie non-employees of the Council if the information enables a particular individual or individuals “to be identified and the Council’s Auditor considers that it should not be inspected or disclosed”.

In the particular circumstances of the PFI Contract the Auditor had not been requested to authorise non-disclosure. The volume of the documents running into several thousands of pages which you had requested rendered it simply impracticable within the short timescales to seek the Auditor’s opinion on whether the personal information should be disclosed. You must remember the context in which the personal information in the PFI Contract was inadvertently disclosed. It was one of many documents that had to be sifted for personal information and commercially sensitive information.

That however does not end the matter since there is a Judgment of the Court of Appeal in the case of Veolia ES Nottinghamshire Limited v Nottinghamshire County Council and Others 2010 EWCA CIV 1214 which decided that Section 15 of the ACA must be interpreted in a manner which is to ensure compliance by the Council with the rights conferred on individuals by the Human Rights Act 1998 and in particular the right to a private life contained in Article 8 of the European Convention on Human Rights to which I refer above.

The advice I have received is that Section 15 of the ACA should be interpreted in such a way that the Auditor’s prior consent to non-disclosure is not required where it would be impracticable to obtain that consent eg because of the volume of documents required to be submitted to him in the short period of time allowed by the Legislation for production of contracts which relate to the Council’s accounts.
It does not of course follow that the Council’s duty not to interfere with Article 8 Rights of the individuals named in the Admission Agreement of the PFI Contract automatically overrides your right as a local government elector to see that information if it formed part of the contract which you were entitled to inspect.

2
There is a public interest that is to be considered which is that the local government elector or indeed a member of the public should normally enjoy full disclosure of information which is relevant to the Council’s true financial position and which would enable them possibly to detect any wrong doing by the Council or its employees.

In this regard I would draw your attention to Schedule 2 Part 3 paragraph 11 of the Local Government Pension Scheme Regulations 2013 which imposes an obligation on the Council to make a copy of an Admission Agreement available for public inspection at its offices. Details of the employees of the PFI Contractor who had been transferred to the contractors employment from the Council under the Transfer of Undertakings (Protection of Employment) Regulations are relevant to an assessment of the Council’s financial position. Under the Local Government Pension Scheme Regulations 2013 if a contractor were to default in his obligations to make pension contributions in respect of those employees or were to become insolvent, the Council would have to meet any deficit in the Pension Fund that arose as a result. The amount of any such deficit would be determined by such factors as salary and age of the employee. That information would therefore be relevant to any assessment of the financial risk to the Council brought about by the PFI Contract.

Furthermore such employees of the PFI contractor are only entitled to remain in the Local Government Pension Scheme if they continue to be employed in connection with the provision of the services comprised in the PFI Contract. Members of the public would need to know the identities of the contractors employees who were admitted to the Pension Scheme under the Admission Agreement in order to check whether they were continuing to work on the PFI Contract and therefore still entitled to remain in the Local Government Pension Scheme with the attendant financial risk to the Council and thereby council tax payers if the PFI contractor were to default in payment of pension contributions or become insolvent.

If therefore that personal information had been drawn to my attention l would have had to weigh in the balance the public interest in disclosing information relating to the Council’s financial position and the identity of employees who were only entitled to remain in the Pension Scheme whilst they remain employed on the PFI Contract, against the invasion of those members privacy if their identities, dates of birth, and national insurance numbers were made known to you.

I have to say that if I had been called upon to make that decision I would have redacted the personal information and not disclosed it to you unless you had been able to satisfy me that you required that information in circumstances which related to those aspects of the public interest to which l have referred above.

It is evident from the contents of your letter of 19 January and our subsequent meeting that you yourself do not believe that the public interest in disclosure of the identities of the members of the Pension Scheme in the PFI Contract was more potent than the respect which the Council is required to show for their privacy under Article 8. Your reasons for seeking disclosure of the PFI Contract had nothing to do with your concern over the Council’s financial exposure to potential deficits of PFI contractors in the Local Government Pension Scheme or to any concerns that the PFI employees who had been allowed to retain membership of the Local Government Pension Scheme were abusing that Scheme by retaining their membership when they were no longer working on the PFI Contract. You have acted responsibly by returning that personal information to me because you recognise that it did not serve the purpose you had in inspecting the PFI Contract in relation to the Council’s accounts for 2013/2014.

3

In future I propose to ensure that future requests to inspect documents under the ACA should not include any personal information which would enable the identity of particular individuals to be ascertained unless you (or any person wishing to inspect the accounts) can demonstrate that the disclosure of that information is in the public interest to the extent that it should override the individuals right to privacy.

Finally I should add that as from 1 April 2015 Section 15 of the Audit Commission Act 1998 has been replaced by Section 26 of the Local Audit and Accountability Act 2014. Under that Act there is no longer a requirement for the Council to seek the prior consent of the Auditor before withholding any personal information in the documents relating to the Council’s accounts which a local government elector is entitled to inspect. It is a recognition by Parliament that the prior involvement of the Auditor is not workable having regard to the short timescale for inspection of the documents and the often voluminous nature of those documents. There are however transitional provisions which mean that the 1998 Act will continue to apply to the inspection of accounts for the year 2014/15.

I am sending a copy of this letter to the Information Commissioner so that he is made fully aware of the Council’s investigation into your complaint and the complicated legal framework within which the Council has to work particularly when it is confronted by a request from the public to inspect a large volume of documents.

Yours sincerely and signed on behalf of
Surjit Tour
Head of Legal and Member Services

(signature of Jane Corrin)

Jane Corrin
Information and Central Service Manager
Transformation and Resources

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Wirral Council take nearly 20 months to respond to a FOI request for SACRE meeting minutes that should only take 20 days

Wirral Council take nearly 20 months to respond to a FOI request for SACRE meeting minutes that should only take 20 days

Wirral Council take nearly 20 months to respond to a FOI request for SACRE meeting minutes that should only take 20 days

                                   

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

I wanted to write this piece to show how hard it is to get information out of Wirral Council, that is routinely published elsewhere.

On the 29th March 2013, I made this Freedom of Information Act request for the minutes of the previous meeting of Wirral Council’s Standing Advisory Committee on Religious Education (SACRE).

Just as a bit of background as to what the Standing Advisory Committee on Religious Education is. The Education Act 1996 c.56 has s.390 to s.397 on these committees and there are also regulations called the The Religious Education (Meetings of Local Conferences and Councils) Regulations 1994 which have the following regulations relevant to this:

Regulation 3 determines that the Standing Advisory Committee on Religious Education meets in public. Unusually the regulations also states that they can’t exclude the public or press except for disorderly conduct.

The public have a right to inspect a copy of the minutes of its meetings for up to 6 years after they’ve happened (also agendas and reports).

Wirral Council even has to give three days advance notice of SACRE meetings.

This document on Brent Council’s website on page 14 states “The main meetings of SACRE are public and open to all. Under the Freedom of Information Act 2000 all SACRE documents are required to be available for public scrutiny.”

Under Wirral Council’s internal rules this committee is not however administered by Legal and Member Services, but instead serviced by officers from the Children and Young People’s Department. It doesn’t for example appear in the list of public meetings on Wirral Council’s website.

So this is what happened when I tried to request the minutes of one meeting of SACRE.

29th March 2013 FOI request made using excellent whatdotheyknow website.
29th April 2013 Wirral Council exceeds 20 day limit for responding to request and is sent a reminder
30th April 2013 Request refused on s. 12(1) cost grounds (require >18.5 hours of work) due to:

“a great deal of Personal Data and Sensitive Data, which would have to be reviewed and redacted were applicable.”

30th April 2013 Internal review of decision of 30th April 2013 requested. It is pointed out to Wirral Council that redacting documents does not count towards the 18.5 hour limit.
30th July 2013 Internal review decision also refuses request, not on s.12(1) cost grounds but on s.14 (vexatious or repeated request) grounds.
14th August 2013 Internal review decision appealed to Information Commissioners Office
8th September 2014 ICO issue decision notice FS50509081

Decision notice states (in relation to this part of the FOI request) Wirral Council breached s.10 and incorrectly applied s.12 and s.16:
s.10 (time for compliance with request) due to failure to respond to FOI request within 20 working days
s.12 (exemption where cost of compliance exceeds appropriate limit) (failed to provide evidence)
s.16 (duty to provide advice and assistance) (breached requirement)

ICO require Wirral Council to take the following steps within 35 calendar days (deadline 13th October 2014) or alternatively appeal the decision notice within 28 days of the 8th September 2014:

Issue a response to the complainant’s request that does not rely upon section 12(1) of the FOIA or regulation 12(4)(b) of the EIR.
Provide advice and assistance to the complainant about which of the requested information is held by the council, and therefore falls under the terms of the FOIA or EIR.

14th October 2014 (36th calendar day after decision notice) no response received from Wirral Council (after which time it is considered contempt of court) so I tell ICO.
4th November 2014 Wirral Council supply the minutes of the SACRE meeting held on 7th February 2013 but remove all names (apart from councillors) on the basis of s.40 (personal information) of the Freedom of Information Act 2000.

So the minutes supplied (this is an extract of the first three agenda items) look like this (I’ve added annotations in italics with an asterisk):

MINUTES OF THE MEETING OF THE STANDING ADVISORY COUNCIL FOR RELIGIOUS EDUCATION HELD ON 7 FEBRUARY 2013

Present:
Names Redacted

* Groups A to D are as follows (who makes up SACRE is determined by s.390 of the Education Act 1996:
Group A “a group of persons to represent such Christian denominations and other religions and denominations of such religions as, in the opinion of the authority, will appropriately reflect the principal religious traditions in the area;”
Group B “except in the case of an area in Wales, a group of persons to represent the Church of England;”
Group C “a group of persons to represent such associations representing teachers as, in the opinion of the authority, ought to be represented, having regard to the circumstances of the area;”
Group D “a group of persons to represent the authority.” (see below)

Councillor W Clements
Group D

Councillor W Smith
Group D

Councillor P Kearney
Group D

Councillor B Mooney
Group D

In Attendance: Names redacted

Name redacted in the Chair

1.
WELCOME

Name redacted formally welcomed everyone to the meeting and introduced the first item on the agenda – the Election of a Wirral SACRE Chair for the year 2013/14. .

2.
ELECTION OF POSTS

Name redacted was proposed by Councillor Clements and seconded by Name redacted. By a unanimous show of hands Name redacted was duly elected to the post of Vice Chair.

Name redacted nominated Name redacted for the post of Vice Chair and this was seconded by Name redacted. By a unanimous show of hands Name redacted was duly elected to the post of Vice Chair.

3.
SACRE Business Matters

Apologies for absence were received from Names redacted, Councillor T Smith, Name redacted.

So advice anyone, should I request an internal review of the decision to redact the names? As these are public meetings, how are the public or press supposed to find out when they meet? If I requested further SACRE meeting minutes do you think they’d take 20 months (rather than the 20 days required under FOI) to supply them?

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ICO issues decision notice stating Wirral Council breached 4 laws in how it handled a FOI request

ICO issues decision notice stating Wirral Council breached 4 laws in how it handled a FOI request

ICO issues decision notice stating Wirral Council breached 4 laws in how it handled a FOI request

 

Ed – 19/9/14 – ICO have uploaded the decision notice (FS50509081) to their website.

Received through the post today from the Information Commissioner’s Office (ICO) was the result of an appeal to them of an internal review of Wirral Council’s dated 30th July 2013 which related to a request made by myself on the 29th March 2013.

The whole decision goes on for nine A4 pages (plus one page accompanying letter from ICO). It’s not been published yet on ICO’s website but will be in the near future. Wirral Council (and myself) have 28 days from the date of the decision made on the 8th September 2014 to make our minds up as to whether either or both parties wishes to appeal this decision notice to the First Tier Tribunal (Information Rights).

Below is the text of the decision notice (but not the accompanying one page letter).

Reference: FS50509081

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

Freedom of Information Act 2000 (FOIA)

Decision notice

Date: 8 September 2014
Public Authority: Wirral Metropolitan Borough Council
Address: Wallasey Town Hall
Brighton Street
Wallasey
Wirral
CH44 8ED
Complainant Mr John Brace
Address Jenmaleo
134 Boundary Road
Bidston
Wirral
CH43 7PH

Decision (including any steps ordered)

———————————————————————————————————————-
1. The complainant has requested information from Wirral Metropolitan Borough Council (“the council”) about the last minuted meetings that were held by 24 different committees. The council refused to comply with the requests on the basis that to do so would exceed the appropriate limit in costs set by section 12(1) Freedom of Information Act (“the FOIA”), and would be manifestly unreasonable under regulation 12(4)(b) of the Environmental Information Regulations (“the EIR”).

2. The Commissioner’s decision is that the council has failed to provide sufficient evidence for the application of section 12(1) of the FOIA and regulation 12(4)(b) of the EIR, and has breached the requirement of section 16(1) of the FOIA and regulation 9(1) of the EIR by failing to provide advice and assistance to the complainant. The council has further breached section 10(1) of the FOIA and regulation 5(2) of the EIR failing to respond to the request within 20 working days.

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

  • Issue a response to the complainant’s request that does not rely upon section 12(1) of the FOIA or regulation 12(4)(b) of the EIR.
  • Provide advice and assistance to the complainant about which of the requested information is held by the council, and therefore falls under the terms of the FOIA or EIR.

4. The council must take these steps within 35 calendar days of the date of this decision notice. Failure to comply may result in the Commissioner making written certification of that fact to the High Court pursuant to section 54 of the FOIA and may be dealt with as a contempt of court.

Request and response
———————————————————————————————————————-
5. On 29 March 2013, the complainant wrote to the council and requested the following:

“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”

6. The council responded on 30 April 2013 and refused the requests under section 12(1) of the FOIA, but advised the information sought by request 12 was available on the council’s webpages.

7. The council provided an internal review on 30 July 2013 in which it revised its position and refused the requests under section 14(1), and further advised that the information sought by request 13 was available on the council’s webpages.

Scope of the case
———————————————————————————————————————-
8. The complainant contacted the Commissioner on 14 August 2013 to contest the council’s response.

9. Following the Commissioner writing to the council on 10 February 2014, the council further revised its position on 19 June 2014 and refused the requests under section 12(1) of the FOIA and regulation 12(4)(b) of the EIR. The complainant subsequently advised the Commissioner that he wished to contest this new position.

10. The Commissioner has identified that the information sought by requests 12 and 13 is available on the council’s webpages. This was confirmed in the council’s initial response and subsequent internal review. The complainant has subsequently confirmed to the Commissioner that he accepts that this information is already publically available, and only wishes to contest the council’s response in respect of the remaining 24 requests.

11. The Commissioner therefore considers that the scope of this case is the determination of whether the council’s refusal under section 12(1) of the FOIA and regulation 12(4)(b) is correct.

Reasons for decision
———————————————————————————————————————-
Is part of the requested information environmental?

12. Information is “environmental” if it meets the definition set out in regulation 2 of the EIR. Environmental information must be considered for disclosure under the terms of the EIR. In the circumstances of this case, the Commissioner does not have sight of the requested information, but has identified that part of it derives from committees that are responsible for environmental matters, including climate change and local parkland. As such, the Commissioner considers it highly likely part of the requested information that derives from those committees would be environmental information as defined by regulation 2 of the EIR.

Section 12 (FOIA) and regulation 12(4)(b)(EIR) – Cost of compliance

13. Section 12(1) of the FOIA states that:

Section 1(1) does not oblige a public authority to comply with a request for information if the authority estimates that the cost of complying with the request would exceed the appropriate limit.

14. The Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 (“the Fees Regulations”) sets the appropriate limit at £450 for the public authority in question. Under the Fees Regulations, a public authority may charge a maximum of £25 per hour for work undertaken to comply with a request. This equates to 18 hours work in accordance with the appropriate limit set out above.

15. A public authority is only required to provide a reasonable estimate or breakdown of costs and in putting together its estimate it can take the following processes into consideration:

  • determining whether it holds the information;
  • locating the information, or a document which may contain the information;
  • retrieving the information, or a document which may contain the information; and
  • extracting the information from a document containing it.

16. The EIR do not have a provision where a request can be refused if the cost of complying with it would exceed a particular cost limit. Rather the EIR contain an exception, namely regulation 12(4)(b), which the public authority can rely on to refuse a request if they consider it to be ‘manifestly unreasonable’ on the basis that the cost of compliance with the request would be too great.

17. Although the Fees Regulations are not directly applicable to the EIR, in the Commissioner’s view they can provide a useful point of reference when public authorities argue that complying with a request would incur an unreasonable cost and therefore could be refused on the basis of regulation 12(4)(b).

18. However, there are additional factors that should always be considered in assessing whether the costs of complying with a request for environmental information are manifestly unreasonable, in particular the proportion of burden on the public authority’s workload (taking into consideration the size of the public authority), and the individual circumstances of the case (including the nature of the information requested and the importance of the issue at stake). In additional to these factors, regulation 12(4)(b) is also subject to a public interest test.

Can the requests be aggregated?

19. In cases were a single piece of correspondence contains multiple requests for information, the Commissioner’s position is that each request is separate. This was confirmed by the Information Tribunal in the case of Fitzsimmons v Information Commissioner and the Department for Culture, Media and Sport (EA/2007/0124).

20. Under the Fees Regulations, public authorities can aggregate the cost of complying with requests if they ‘relate, to any extent’, to the same or similar information’. The Commissioner interprets this phrase broadly, and considers that providing there is an overarching theme or subject matter that connects the requests, the cost of compliance with each request can be aggregated.

21. In the circumstances of this case the Commissioner has reviewed the correspondence in which the complainant requested information, and has identified that it contains 24 numbered requests for specific information. The complainant has advised the Commissioner that he has made these requests for the purpose of ensuring transparency on the part of councillors who have taken part in committees. The Commissioner is therefore satisfied that the requests are connected through an overarching theme, and that the cost of compliance can therefore be aggregated.

Can the requests spanning different access regimes be aggregated?

22. It is the Commissioner’s position that when considering the cost of compliance under section 12(1) of the FOIA or regulation 12(4)(b) of the EIR, requests that clearly fall under one access regime cannot be aggregated with those that fall under the other.

23. However, when an individual request is likely to span both access regimes, then the Commissioner recognises that the initial collation of the information will incur costs before the information can be subsequently assessed to decide which access regime applies. As such, the Commissioner considers it appropriate to consider the costs of such collation under the FOIA.

24. In the circumstances of this case, the Commissioner considers it highly likely that the information sought in requests 20, 21, and 22 will include environmental information (such as that relating to the environmental remit of the committee), and non-environmental information (such as that relating to the administration of the committee). The Commissioner is therefore satisfied that it is appropriate to consider the initial collation of any held information under the FOIA.

Does the aggregated cost of compliance exceed the appropriate limit?

25. The council’s position is that the combined costs of identifying whether the information is held in response to the 24 requests, in conjunction with any ensuing costs of locating and retrieving the information, would exceed the appropriate limit of 18 hours.

26. The council has explained to the Commissioner that the requests cover a broad range of committees, many of which are advisory in nature, and have minutes that are not electronically available through the information system that the council uses to manage its committees. The council has also suggested that due to many of the committees being advisory in nature, they may not subject to the terms of the FOIA or EIR.

27. The Commissioner, in reviewing the content of the council’s response, has identified that it has not provided the results of any sampling exercise, nor has it provided a detailed time or cost estimate to support its position that the cost of compliance would exceed the appropriate limit.

28. The Commissioner has further identified that whilst committee minutes may not be directly retrievable through the normal information system that the council uses to administrate committee minutes, he considers it reasonable to consider that the information would still be contained within a relevant filling system, either manual or electronic, which would allow the council to both identify whether the information was held, and take steps to collate it.

29. The Commissioner also considers that the council’s position that a proportion of the committees are not subject to the FOIA or EIR, further weakens the council’s grounds for refusal. Should specific committees not fall under the council’s responsibility, this would suggest to the Commissioner that the council’s compliance with the requests would only comprise meeting its duty to confirm or deny whether the information is held under section 1(1) of the FOIA or regulation 5(1) of the EIR.

30. Having considered the above factors, the Commissioner has concluded that the council has not provided sufficient evidence to support its refusal under section 12(1) of the FOIA and regulation 12(4)(b) of the EIR. As the Commissioner has concluded that regulation 12(4)(b) of the EIR is not engaged, he does not need to consider the required public interest test under regulation 12(1)(b).

Section 16 (FOIA) and regulation 9 (EIR) – Advice and assistance

31. Section 16(1) of the FOIA imposes an obligation on a public authority to provide advice and assistance to a person making a request, so far as it would be reasonable to do so. Section 16(2) states that a public authority is to be taken to have complied with the provisions in the Section 45 Code of Practice (“the Code of Practice”) in relation to the provision of advice and assistance.

32. Regulation 9(1) of the EIR likewise imposes an obligation on a public authority to advice and assistance to a person making a request, as far as it would be reasonable to do so.

33. In the circumstances of this case, the Commissioner has reviewed the council’s refusal dated 19 June 2014, does not consider that advice and assistance has taken place, despite the council refusing the request on the basis of cost. The Commissioner further considers that the council’s position that some of the relevant committees do not fall under the control of the council, suggests that advice and assistance about the extent of what information is held by the council could have been provided. Therefore, in respect of its revised position dated 19 June 2014, the council has breached section 16(1) of the FOIA and regulation 9(1) of the EIR.

Section 10(1) of the FOIA and regulations 5(2) of the EIR – Time for compliance

34. Section 10(1) of the FOIA and regulation 5(2) of the EIR requires that an information request should be responded to within 20 working days following the date of receipt. In this case a response was not provided until after that length of time. The council therefore breached section 10(1) of the FOIA and regulation 5(2) of the EIR.

35. Either party has the right of appeal against this decision notice to the First-tier Tribunal (Information Rights). Information about the appeals process may be obtained from:

First-tier Tribunal (Information Rights)
GRC & GRP Tribunals,
PO Box 9300,
LEICESTER,
LE1 8DJ

Tel: 0300 1234504
Fax: 0870 739 5836
Email: GRC@hmcts.gsi.gov.uk
Website: www.justice.gov.uk/tribunals/general-regulatory-chamber

36. If you wish to appeal against a decision notice, you can obtain information on how to appeal along with the relevant forms from the Information Tribunal website.

37. Any Notice of Appeal should be served on the Tribunal within 28 (calendar) days of the date on which this decision notice is sent.

Signed (signature of Andrew White)
Andrew White
Group Manager
Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF

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