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?

                                                                   

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On the 14th June 2015 I made a Freedom of Information Act request to the Merseyside Fire and Rescue Service for two unpublished reports to the Merseyside Fire and Rescue Authority on “the costs of any new build station, together with an estimate of the potential income from the sale of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”.

“Environmental information” is defined in Regulation 2 of the Environmental Information Regulations as:

“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.

The two you refer to (regulations 12(5)(d) and 12(5)(e)) are not part of the Freedom of Information Act 2000, but part of the Environmental Information Regulations 2004.

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.

I would also like to point out that regulation 11 of the Environmental Information Regulations requires a further decision to be made on this request following this representation within 40 working days.

I will first deal with Regulation 12(5)(d) which states:

“(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;”

You further state “These exemptions apply because the two documents you have requested are exempt items by virtue of Paragraph 3 of Part 1 of Schedule 12A of the Local Government Act 1972 and therefore cannot be disclosed. ”

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.

The same information that I requested in this request formed Appendix B to agenda item 8 (Operational Response Savings Option) of the Merseyside Fire and Rescue Authority’s meeting of the 30th June 2015.

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)

, 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.”

I would also like to draw your attention to Regulation 8 and Regulation 10 of the Openness of Local Government Bodies Regulations 2014, see http://www.legislation.gov.uk/uksi/2014/2095/contents/made .

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.

However when I appealed it to the Information Commissioner’s Office, the information was provided, see decision notice FS50576394 https://ico.org.uk/media/action-weve-taken/decision-notices/2015/1431882/fs_50576394.pdf.

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.

A full history of my FOI request and all correspondence is available on the Internet at this address:
https://www.whatdotheyknow.com/request/reports_on_upton_west_kirby_fire.

Yours faithfully,

John Brace

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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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