Category: Merseyside Fire and Rescue Authority

What links FOI, ICO decision notice FS50591795, audit, a class A drug, barristers and Liverpool City Council?

What links FOI, ICO decision notice FS50591795, audit, a class A drug, barristers and Liverpool City Council?                                             There is a form of direct accountability during the audit of local councils when for a short period each year local government electors can inspect information about that financial year such as invoices and contracts. Here is … Continue reading “What links FOI, ICO decision notice FS50591795, audit, a class A drug, barristers and Liverpool City Council?”

What links FOI, ICO decision notice FS50591795, audit, a class A drug, barristers and Liverpool City Council?

                                           

There is a form of direct accountability during the audit of local councils when for a short period each year local government electors can inspect information about that financial year such as invoices and contracts.

Here is a legal reference to that right (Audit Commission Act 1998, s.15) which has been a direct form of democratic accountability that in one form or another has been around since Victorian times.

It’s tied in to rights of local government electors to ask questions of the external auditor (which for Wirral Council is Grant Thornton), to make objections to the accounts, to request public interest reports. After all how can you do all that without seeing the information in the first place?

It’s a form of direct democratic accountability.

Unlike making a freedom of information request (time limit of 18.5 hours) there is strictly very little legal limits on what can be requested (well apart from on the insular peninsula at Wirral Council where they have a habit of deliberately shifting the goalposts and coming up with bizarre interpretations of legislation to suit themselves). Last year I made requests under this audit legislation to Wirral Council, Liverpool City Council, Merseyside Waste Disposal Authority, Merseytravel and the Merseyside Fire and Rescue Authority.

The Liverpool City Council request was connected to an earlier FOI request and there’s been a recent decision notice issued in that matter on the 1st February 2016 which hasn’t been published yet by ICO.

Ironically ICO seemed to have met a stumbling block with Liverpool City Council on that one as they asked me for the information that I’d been refused under FOI (happy to oblige). This implies Liverpool City Council weren’t being entirely cooperative with ICO.

I’ve been sent a paper copy of the decision notice through the post, but it’s not published on ICO’s website yet. The reference is FS50591795. It’s a mercifully short eight pages and requires both Liverpool City Council to issue a fresh response with 35 days of 1st February 2016 (or appeal to the Tribunal) and states that Liverpool City Council breached s.10(1) of the Freedom of Information Act 2000. If anybody wants me to I can scan a copy in and publish it here.

Basically LCC’s arguments are that I’m being unfair to barristers by requesting invoices they’ve submitted to LCC. Because as we all know, the purpose of a self proclaimed "socialist" Council like Liverpool City Council is to stick up for downtrodden, oppressed groups on the margins of society like barristers!

Cllr Paul Brant (left) speaking at a recent public meeting of Liverpool City Council (11th November 2015)
Cllr Paul Brant (left) speaking at a recent public meeting of Liverpool City Council (11th November 2015)

Let’s take the example of one barrister (pictured above on the left), a barrister I might point out who is not the subject of the invoices I requested, but who is in addition to being a barrister, a Labour Liverpool City Council councillor called Cllr Paul Brant. He resigned as a councillor in 2013 (although has since been re-elected) after receiving a police caution for possession of a class A drug. He was also the subject of a The Bar Tribunals & Adjudication Service disciplinary tribunal.

Below are the details.

Defendant Paul Brant (Lincoln’s Inn)

Type of hearing 3 Person Disciplinary Tribunal

Panel members
Mr William Rhodri Davies QC (Chair)
Ms Pamela Mansell
Mr Mark West

Finding and sentence Reprimand.

Section of the code 301(a)(i)/901.7

Status Final
Date Friday 12 September 2014

This Tribunal was held in Private.

Here is a link to the outcome of the Paul Brant disciplinary hearing from which I quote,

"Details of Offence

Paul Brant engaged in conduct which was discreditable to a barrister contrary to paragraph 301(a)(i) of the Code of Conduct in that on a day between the 1st January 2013 and the 21st September 2013 he committed the criminal offence of being in possession of a controlled drug of class A contrary to The Misuse of Drugs Act 1971, for which offence on the 20th September 2013 he receive a simple caution."

It would be a conflict of interest for Cllr Paul Brant to do work for Liverpool City Council but according to his Chamber’s website he has been instructed to represent Wirral Council in the past (yes Wirral Leaks I can get trees into a story too!):

“Jayne Spencer v Wirral Metropolitan Borough Council (2008); LTL 1/10/2008 (Highway liability claim, tree root in Port Sunlight conservation area causing personal injury – whether breach of duty. Mr Brant appeared successfully at first instance and on appeal).”

This is an aside but I do remember one year during the audit, Wirral Council weren’t happy with me requesting the invoices for their legal invoices for these sorts of liability claims. “

However there should be some transparency as to who Liverpool City Council are paying! All Liverpool City Council councillors are responsible for budget matters including Cllr Paul Brant.

One of my arguments rejected by ICO was that there are laws regulating who can give legal advice. You can check whether a barrister has a current practising certificate here.

To give the example of Paul Brant above, it shows he works at Oriel Chambers and was subject to a disciplinary tribunal in September 2014 (the outcome of which is detailed above).

One of my other arguments to the regulator was that Liverpool City Council is under a legal obligation to publish the names of its suppliers for invoices over £500. In fact the guidance they’re required by law to follow specifically states that being self-employed (which is their argument surrounding barristers) doesn’t mean they can keep the suppliers’ name out of the public domain (but Liverpool City Council do).

The page on his Chambers’ website states he is "in a senior position in a large local authority" (meaning Liverpool City Council).

However the above legislation (surrounding rights of inspection, objection etc) during the audit was scrapped by the government. You can’t use it any more to do this after the 2014/15 financial year.

Instead for 2015/16 financial year onwards it’s been completely watered down.

Previously (apart from information about its own staff) local councils during the audit had to get permission from their external auditor if they wanted to withhold from inspection in the category of "personal information" (which was very narrowly defined). This was a safeguard to prevent public bodies abusing their powers.

Bear in mind however that each time the public body contacts their external auditor it increases what they’re charged.

This was a check and balance introduced by the last Labour government.

However this check and balance on misuses of power in local government was repealed (scrapped) by the last Coalition government (Conservative/Lib Dem).

Oh but there’s more!

There’s a rather infamous recent case (well infamous in those familiar with "citizen audit") where a local government elector called Shlomo Dowen requested (during this period each year during the audit) a waste management contract between Nottinghamshire County Council and Veolia ES Nottinghamshire Ltd.

The case reference is [2009] EWHC 2382 (Admin), [2010] PTSR 797, [2010] Env LR 12. Anyway interestingly at that stage a High Court Judge said Mr. Shlomo Dowen should be allowed to inspect and receive a copy of the contract (despite Veolia bringing a judicial review about it).

However Veolia weren’t happy at all by this (in fact if you read through the judgements in both cases you’ll find that even if Mr. Dowen was given the contract they wanted restrictions on him sharing it with other people) and brought an appeal in the Court of Appeal ([2010] EWCA Civ 1214, [2012] PTSR 185, [2010] UKHRR 1317, [2011] Eu LR 172). Veolia claimed that allowing Mr. Dowen to inspect/receive a copy of the contract would infringe that companies’ human rights.

I quote from part of that judgement, “I am not entirely convinced that English common law has always regarded the preservation of confidential information as a fundamental human right”.

Rix LJ, Etherton LJ, Jackson LJ upheld the appeal however.

The irony of all that was that Shlomo Dowen already had access to the information as Veolia’s lawyers did not seek a stay following the earlier judgment.

However the above is why an extra category of "commercial confidentiality" has now been added to s. 26(5) of the Local Audit and Accountability Act 2014.

Interestingly withholding information on grounds of commercial confidentiality, this is a quote from the legislation,

“(5) Information is protected on the grounds of commercial confidentiality if—

(a) its disclosure would prejudice commercial confidentiality, and

(b) there is no overriding public interest in favour of its disclosure.”

is subject to a public interest test.

However there are other changes on the horizon too. Previously the inspection period was 15 days (3 weeks assuming there are no holidays).

When that inspection period was published in a public notice in at least one newspaper in the area and on the public body’s website.

I only have until the end of the 2015/16 local government financial year to get up to speed on these changes as being the Editor here I’ll have to schedule time for responding to the public notices, arranging appointments to inspect, as well as spare capacity for dealing with the moaning of the public sector (example moan last year being, it’s been 7/8 years since someone did this!).

As Wirral Council was somewhat uncooperative last year over the size of my request (only responding to the 10% of it they didn’t deem to be particularly sensitive), I will be having internal discussions here on avenues that can be explored to either embarrass Wirral Council into legal compliance (by censure (not to say that always works) or take more formal action.

Weirdly some of the politician’s expenses that they refused me under the audit legislation and Cllr Adrian Jones refused to make an appointment for me to see, they released in response to a later FOI request.

Which just goes to show that if you ask for the same information three times from Wirral Council (audit rights, a politician, then FOI), you might finally get it! Obviously by the third time, it starts to get embarrassing and seems like they have something to hide. I really don’t like having to ask three times when once should be enough though!

Anyway what was going to be only a short article about local government, barristers, ICO, FOI and audit is now rather on the long side so I’ll draw this to a close and give you an opportunity to comment.

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What were the 9 most viewed stories on this blog over the last week?

What were the 9 most viewed stories on this blog over the last week?

                                                      

ICO Information Commissioner's Office logo
As nearly half of the stories this week are about freedom of information requests the logo above is of ICO (Information Commissioner’s Office) who are the regulator

It’s time again to look back at the 9 most viewed stories of the last week (with a few comments on each of them).

1. 5 different versions of one political cover up but which one will you choose?

The BIG/ISUS issues rumble on with a government minister making sure an audit report isn’t provided in response to a FOI request.

2. Isle of Man company cancels plans for ICT College in Birkenhead

Wirral Council is forced to go back to the drawing board on plans to lease the Conway Building and Hamilton Building in Birkenhead as Isle of Man based International Centre for Technology Ltd pulls the plug on the project.

3. Incredible: FOI reveals “the Council are seeking to draw a line under matters in relation to Mr Morton”

A FOI request reveals a behind the scenes email about how to manage Martin Morton.

4. Why after 2 years, 9 months and 13 days have Wirral Council U-turned on refusing a FOI request for minutes of the Safeguarding Reference Group?

Another story about a FOI request and a long running battle to persuade Wirral Council to produce minutes of a meeting about safeguarding.

5. Does fire safety construction flaw at PFI school affect Wirral schools?

A story about how a flaw at one of Merseyside’s school built using PFI led to fire safety problems, are any of the PFI schools on Wirral affected?

6. Is this what an “open and transparent” Council looks like?

A question answered by a number of blacked out pages from the BAM Nuttall Highway Services contract.

7. Deputy Chief Fire Officer Phil Garrigan tells councillors “90 working days” are lost each year in responding to FOI requests

Continuing a theme running through a number of these stories about freedom of information requests, Merseyside Fire and Rescue Service’s Deputy Chief Fire Officer Phil Garrigan gives his view on freedom of information.

8. Cllr Foulkes on Mersey Ferries “we cherish that service and want to maintain it”

Cllr Foulkes responds to the campaign to save Woodside ferry terminal.

9. Why is Merseytravel spending £57,000 + VAT to monitor this blog?

The top story in last week’s round up details how much Merseytravel spend on media monitoring.

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Deputy Chief Fire Officer Phil Garrigan tells councillors “90 working days” are lost each year in responding to FOI requests

Deputy Chief Fire Officer Phil Garrigan tells councillors “90 working days” are lost each year in responding to FOI requests

                                                           

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Councillors on the Performance and Scrutiny Committee (Merseyside Fire and Rescue Authority) discuss Freedom of Information requests (starts at 15m 35s) (12th January 2016)

Phil Garrigan (Deputy Chief Fire Officer) speaks about freedom of information requests to a meeting of Merseyside Fire and Rescue Authority's Performance and Scrutiny Committee (12th January 2015)
Phil Garrigan (Deputy Chief Fire Officer) speaks about freedom of information requests to a meeting of Merseyside Fire and Rescue Authority’s Performance and Scrutiny Committee (12th January 2015)

Although I am not referred to by name (but my profession is in the report), I have made Freedom of Information requests to Merseyside Fire and Rescue Service/Merseyside Fire and Rescue Authority during the period covered by that report. An appeal of a refusal of one of those Freedom of Information requests to the Information Commissioner’s Office is referred to in the report in section 16. I am therefore declaring this as an interest at the start of this piece.

I have previously written about Merseyside Fire and Rescue Authority’s response to the consultation on changes to Freedom of Information legislation.

Yesterday councillors on Merseyside Fire and Rescue Authority’s Performance and Scrutiny Committee discussed a report on Freedom of Information requests.

The report was introduced by Deputy Chief Fire Officer Phil Garrigan, who said “Thanks Chair, again this report relates to our response to a request from Members to better understand the implications of the Freedom of Information requests on the Authority and the report proposes to, it requests that Members review the information in relation to Freedom of Information requests and particularly the Freedom of Information Act 2000.

What I would say from the outset is that Merseyside Fire and Rescue Authority adheres to and is supportive of the Freedom of Information Act and values its role in allowing people to access information, giving them the right to find out about matters and decisions that affect them. I’d like to be absolutely crystal clear around that.

However, use of the Act is becoming increasingly popular and the volumes of freedom of information requests have increased over the recent years. The table on page 58 exemplifies that. We received, we saw freedom of information requests in 2011 at 72, 2014 at 138 and up until November 9th 2015 at 131.

So it’s clear evidence that the freedom of information requests coming through to Merseyside Fire and Rescue Authority has increased significantly over that period and you know Members will also be aware that we’ve been receiving those freedom of information requests it’s a requirement on us to turn around that information within twenty days unless we are able to provide you know a legitimate reason as to why we wouldn’t provide that information and even then we’d have to evidence that and reply to the particular individual who’s requested the information.

What we also recognise is that there are different courses of action that we could take. You know a) providing the information, redacting the information, refusing to supply the information by applying an exemption or determining that the work required to pull the information together is disproportionate and then notifying the application that it’s available by other means or by determining the request is vexatious and certainly the Information Commissioner has said you know when challenged around freedom of information and the number of requests it is always available for an authority or an organisation to reject it on the basis that it’s a vexatious request, but equally Members will appreciate the fact that that is quite challenging in that regard because it seems very protectionist, it seems as though we would be withholding information from a public member or an organisation on that basis and it’s very difficult to legitimise that in my view and more often than not the individuals, the staff who are seeking to provide that information will go way beyond what’s expected to provide that information as accurately as they are able to.

But it does place demands on our organisation, particularly as our organisation continues to reduce in size and when we look at the, our attempts to protect our front line operational response and we look at, it’s incumbent on us that we look at the support services that maintain the Service outside of our operational firefighters. So our non uniformed colleagues and uniformed colleagues are spending a significant amount of time dealing with freedom of information requests. So the organisation is shrinking but the demand around freedom of information is increasing.

So what the report does is it recognises that fact, it appreciates the fact that you know we will get a multitude of different requests in, some from you know members of the public, but some extended to journalists and so on and so forth and representative bodies who are utilising the information not in my view for how it was necessarily meant to be utilised in the first instance and also we have requests coming from organisations and companies where they are seeking to achieve you know some competitive advantage and I’m not sure again that was the basis of what the Freedom of Information Act was all about, but drawing all that in then and you know certainly it’s already been recognised as there’s been an independent Commission that has been invoked to review the Freedom of Information Act and we have provided a response to that saying that we are certainly for legitimate and less vexatious requests and maybe a levy or a charge may be applicable to kind of ensure that they are genuine and not repeated and that would maybe prevent some of the prolific you know press requirements being met when such a charge is applicable.

However the Information Commissioner has published a response in relation to that consultation which says, which argues against the introduction of fees and as I say you know starts to suggest that authorities should use section 14 which is around vexatious requests to avoid responding to the ones that were deemed to be you know vexatious in their very nature.

However you know in regards to that as I’ve previously stated, paragraph 12 describes the challenges around describing something as vexatious and that’s not something we would want to be perceived to be defensive over the policies and procedures that we’ve adopted as an Authority. I’m not sure we would want to be, or I certainly know we would want to be as transparent and open as possible but nevertheless what does that mean in reality?

In reality it means that since July 2015 through November, 32 complete requests have been responded to and the total of hours that have been attributed to that to deal with those requests 153 hours, which equates to 4.8 hours per a request for information. When you extrapolate that over the twelve month period it equates to 629 hours which again would be in effect is about 90 days of a person who is being responded to and obviously that’s a collective person because that’s an hour of one department, two hours of another, three hours of another and so on and so forth, but in totality it’s about 90 working days that’s lost from this Authority in responding to freedom of information requests at a time when we would be better focussed on our attentions on the delivery of the service and as I say protecting the front line.

However that is the kind of realities and again this is not about us, you know, challenging the utilisation of freedom of information but certainly it questions its actual usage in its broader sense and who actually uses it for what reasons.

When you then as part and parcel of our response to the consultation we asked staff members about what they felt the implications were for themselves and they are detailed in paragraph 19.

But what I would say in kind of closing and given that the kind of clarity of 90 working days lost to responding to freedom of information requests, I’ll just bring you back to the legal implications. Merseyside Fire and Rescue Authority has a duty under the Freedom of Information Act to deal with requests promptly and in the event no later than 20 working days after receipt of the requests.

Merseyside Fire and Rescue Authority can exercise its rights under the Act if an exemption has been correctly applied and in most cases the public interest test is then applied to ensure any exemptions are correctly applied under those circumstances.

So there are ways in which we can deal with them, but again just to reiterate the point, our intent is to be as open and transparent as possible. We are you know responding to each and every one and it does incur a significant cost associated with them of 90 days across the whole 12 months of the organisation irrespective of who necessarily deals with them but certainly there are members of certain teams who spend an inordinate amount of time dealing with requests. I’m happy to take any questions on that Chair.”

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Does fire safety construction flaw at PFI school affect Wirral schools?

Does fire safety construction flaw at PFI school affect Wirral schools?

                                                        

Cllr Lesley Rennie speaking at a public meeting of Merseyside Fire and Rescue Authority 29th January 2015
Cllr Lesley Rennie speaking at a public meeting of Merseyside Fire and Rescue Authority 29th January 2015

11/1/16 08:19 Edited to change University Academy Birkenhead to Birkenhead Park School as it changed its name last year.

A report to be considered by councillors on the Merseyside Fire and Rescue Authority‘s Performance and Scrutiny Committee on Tuesday afternoon warns, during a fire at a PFI school on Merseyside, that smoke spread from a ground floor kitchen to a protected staircase.

Further investigation found the same problem at eleven additional PFI sites.

Wirral has a number of schools constructed using PFI that are managed by Wirral Schools Services Limited. It is not known if any of the schools on the Wirral are affected by this. Here is the information from the report.

“Case Study 2: Fire Separation in Major Construction projects

24. A site visit to a local school on 9th January 2015 following a fire on 7th January 2015 (incident no 32304) identified serious fire separation concerns due to smoke spread from the ground floor kitchen to the 1st floor protected staircase.

25. The school was built as part of a Private Finance Initiative (PFI) initiative. The investigation led to 11 additional PFI sites where the same issues were detected. As the issues potentially had national implications Protection Officers utilised the CFOA [Chief Fire Officer Association] Community of Practice to share the risk information. It was subsequently established that the same issue had been found in other major new-build / refurbishment projects across England with estimated repair bills totalling in excess of £100m.

26. Officers escalated the issue to the CFOA Fire Engineering Technical Standards Group due to the national potential in order that the risk information can be effectively shared with other Fire and Rescue Services and that national guidance is produced to ensure that these issues are dealt with consistently and effectively.”

 

Will either of the two Wirral councillors (Cllr Lesley Rennie and Cllr Jean Stapleton) on MFRA’s Performance and Scrutiny Committee ask if any of the Wirral PFI Schools (Leasowe Primary, Bebington High, Birkenhead Park School (previously University Academy Birkenhead and before that Park High), South Wirral High, Weatherhead High, Hilbre High, Prenton High, Wallasey High and Wirral Grammar Girls) or the two Wirral PFI City Learning Centres (Wallasey City Learning Centre and Hilbre City Learning Centre) are affected by this?

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What were the 9 most viewed stories on this blog over the last week?

What were the 9 most viewed stories on this blog over the last week?

                                                  

Sherlock Holmes and Dr Watson on a train
Sherlock Holmes and Dr Watson on a train

There are many stories I plan to publish on this blog soon. There’s one involving Hoylake Golf Resort, a story involving a cover-up at Wirral Council sanctioned by a Conservative Minister and of course the steady stream of news that is local politics. I also plan to look back at what were the most viewed news stories in 2015.

However it’s time to look back at the 9 most viewed stories of the last week (with a few comments on each of them).

1. Why is Merseytravel spending £57,000 + VAT to monitor this blog?

This is a look at what Merseytravel spend on media monitoring (which covers not just this blog, but newspapers and broadcast media too). It formed part of my citizen audit over the summer (but with tales of councillors’ salmon dinners and stays at gentleman’s clubs by Merseyside Fire and Rescue Authority councillors) only was published now.

2. Will the 20 councillors on Merseytravel mothball the Mersey Ferry terminal at Woodside?

The big news story of the week was about whether the Mersey Ferries had a future at Woodside. Councillors disagreed with the consultants and asked for an option that kept the three terminals (Woodside, Seacombe and Liverpool Pier Head).

3. A look back to a fictional Birkenhead in 1894 and how things hardly change!

Inspired by the Sherlock Christmas special, this went back in time to 1894 to a fictional conversation around the Brace breakfast table. Yes Wirral is still in Cheshire, blogs don’t yet exist and the first Mersey Tunnel for the railway has recently been opened.

4. Wirral Council’s Cabinet agrees to consultation on £2.498 million of cuts

The consultation started by Cabinet before Christmas on cuts at Wirral Council continues.

5. Incredible: FOI reveals “the Council are seeking to draw a line under matters in relation to Mr Morton”

A FOI request Wirral Council would rather I hadn’t published surfaces to show what senior management thinks of whistleblowers.

6. What was Liverpool City Council’s incredible 6 page response to the FOI consultation?

Number five leads in to Liverpool City Council’s views on Freedom of Information. They suggest a series of radical moves. They want the 18 hour rule changed to 6 or 7 hours, for those making Freedom of Information requests to be charged for the time it takes Liverpool City Council to black out information, more opportunity to deem requests vexatious and to abolish internal reviews.

7. Wirral Council receives extra £725,000 of education funding (but Lyndale is still closing)

A story about how merely doing things differently at Wirral Council led to more money.

8. How much a mile do taxis for Wirral’s councillors cost (between £1.33 and £6.40/mile)?

Continuing a long-running series of articles on councillors’ expenses, the price list for councillors’ taxi journeys.

9. What was Cllr Samantha Dixon (Chester West and Chester Leader)’s response to criticism over disabled parking problems in Chester?

A story about the possible unlawful expenditure of ~£650,000 and the welcome disabled drivers receive in Chester. I’ll be providing updates on this story soon and what The Local Authorities’ Traffic Orders (Exemptions for Disabled Persons) (England) Regulations 2000 has to do with it all.

So that’s it, the top nine stories read in the past week and a teaser for a few to come.

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