Why did Wirral Council spend an incredible £1,872 on a London barrister to prevent openness and transparency?

Treasury Building (Wirral Council), Hamilton Square, Birkenhead, 19th August 2014 (you can click on the photo for a more high-resolution version)

Yesterday on a sunny afternoon, I went to the Wirral Council building pictured above known as the Treasury Building to inspect various Wirral Council invoices. I was exercising an obscure right under s.15 of the Audit Commission Act 1998 c.18. This right means that for a few weeks each year, as an “interested person” you can inspect the accounts for the previous financial year that in the process of being audited by Grant Thornton. You can also inspect all books, deeds, contracts, bills, vouchers and receipts that relate to these accounting records and make copies of all or any part of the accounts and those other documents. This year (for Wirral Council) that period ran from 21st July to the 15th August, so sadly if you’re thinking of exercising this right you’ll now have to wait till next year to do so!

However I had put in my request during that brief time period for five areas I was interested in. I’ve briefly describe what those four areas were, the first was invoices from SCC PLC (which is a large IT company), the second and third batches were invoices for legal matters (solicitors, barristers, expert witnesses, court fees etc), the fourth were some general invoices and the fifth were various contracts (two of which were the Schools PFI contract and the Birkenhead Market lease).

The contracts aren’t ready yet, but the invoices were available for inspection yesterday and I also exercised my s.15(1)(b) right to copies. Just the copies of invoices comes to hundreds of pages of documents (which may take me a while to scan in). Some pages are more heavily redacted than others. However this blog post is going to concentrate on just one which is document 117 in one of the two legal bundles. The document (in the form I received it from Wirral Council) is below (you can click on the photo for a more readable version).

11KBW Invoice for appeal of an ICO decision notice (October 2013) Metropolitan Borough of Wirral (£1872) redacted

A bit of context is probably needed about this invoice first. 11KBW is a London-based chamber of barristers that specialise in employment, public and commercial law. You can find out more about them on their website. This particular invoice for £1,872 (including VAT) was for “perusing and considering papers, advising by email, telephone and writing and drafting grounds of appeal to an ICO decision notice”. Whereas the first bit of that is understandable, if you don’t know what an ICO decision notice is then I’d better explain.

If a person makes a Freedom of Information request to Wirral Council, then is not happy with the response, requests an internal review, then they’re not happy with the internal review they can appeal the decision to the Information Commissioner’s Office (known as ICO). The ICO prefer to deal with things informally, but if they can’t they will issue a “decision notice”. A decision notice is an independent view of ICO’s one way or the other on the FOI request and as to whether the body to whom it has been made has complied with the Freedom of Information legislation and sometimes also the Environmental Information Regulations.

Unless the body to whom the FOI request is made or the person making the request appeals the decision notice within 28 days, the body to whom the FOI request is made has to comply with the decision notice within 35 calendar days. Sometimes ICO agree with the body the FOI request is made to so no further action is required. Other times the decision notice compels the body (unless they appeal) to disclose the information. If the public body doesn’t comply with the decision notice within 35 calendar days then ICO can tell the High Court about this failure and it would be dealt with as a “contempt of court” issue.

Helpfully (unlike a lot of other court matters), ICO have a search function on their website for decision notices. As the invoice is for drafting grounds of an appeal (which has to happen within 28 days of the notice) a search for decision notices from the 27th September 2013 to the 25th October 2013 brings up three decision notices FS50496446, FS50491264 and FS50474741.

The first of those three (FS50496446) states in the summary “As the council has now provided a response, the Commissioner requires no steps to be taken.” so it’s not that one. The last sentence of the summary on FS50474741 states “This decision notice is currently under appeal to the Tribunal” (which is a little out of date as by now the tribunal has already reached its decision on that matter). Therefore this invoice is (by process of elimination) about the eight page decision notice FS50474741.

The decision notice goes into the detail about what the original FOI request (which you can read for yourself on the whatdotheyknow website) was about (made on the 4th February 2012), which is for correspondence between Wirral Council and DLA Piper UK LLP. Much of the correspondence is between DLA Piper Solicitors and Anna Klonowski Associates Limited and includes an amendment to the contract between AKA Limited and Wirral Council. The information also included Bill Norman (Borough Solicitor)’s advice to councillors on publication of Anna Klonowski Associate’s report which was previously published as an exclusive on this blog on December 12th 2011.

When the AKA report was published, the issue made the regional TV news (you can view a video clip of that below this paragraph) and a no confidence vote which removed both Cllr Steve Foulkes as Leader of the Council and the minority Labour administration. The Labour administration was replaced by a short-lived (~3 month) Conservative/Lib Dem one in the February of 2012. The whole matter was a very sensitive (and somewhat embarrassing) period in Wirral Council’s history (even more than the public inquiry into library closures was) and it’s probably somewhat understandable as to why Wirral Council didn’t want information as to what happened “behind the scenes” being released into the public domain. As far as I remember (and it was some years ago so I hope my memory is correct on this point), Wirral Council was paying DLA Piper to give legal advice to itself and AKA Limited. This was in relation to the inquiry of AKA Ltd started by Cllr Jeff Green into Martin Morton’s whistleblowing concerns (in the brief period when as a Conservative councillor he was Leader of the Council).

However, in addition to the details of the decision notice, other information has been blacked out. The part at the top right where it states “professional fees of”, I think relates to a junior barrister called Mr Robin Hopkins who is also on Twitter. The reason behind this is that at the bottom of the invoice it states “PLEASE MAKE CHEQUES PAYABLE TO Mr Robin Hopkins” and his name also appears as the organisation name on the list of invoices Wirral Council publish of over £500 for October. On Wirral Council’s systems although a small number of invoices from barristers chambers come under the name of the barrister’s chambers, most appear using the barrister’s name as the organisation.

As to the name of the Wirral Council officer that the pro forma invoice is addressed to, it would seem most likely that this is Surjit Tour. Not only does his short name fit what is blacked out, but he’s also the Head of Service for this service area within Wirral Council. I don’t know whether he’d actually be the solicitor at Wirral Council giving instructions to the barrister on this issue (as there are over a dozen solicitors employed at Wirral Council). I’ve no idea whose signature it is on this invoice and there are three other places on the invoice where officers’ initials or names have also been blacked out.

When the appeal to ICO’s decision notice was heard at the First-Tier Information Tribunal you can read this post about it on Paul Cardin’s blog, there’s another write-up about it in Local Government Lawyer and a copy of the 16 page unanimous decision of the tribunal can be read here.

The invoice (partly revealed) with my educated guesses in green as to what’s behind the redactions is below. However it begs the question, why did Wirral Council redact this information and what have they got to hide? Or is it just a case of they’d prefer the press and public to forget about the entire Martin Morton/AKA issues which were compared to “Watergate” by Cllr Stuart Kelly? If they’d chosen not to appeal this decision wouldn’t that meant a saving of £1,872 that Wirral Council could have instead spent on education or social services? I thought that a Labour councillor (was it Cllr Phil Davies?) stated that the current Labour administration was “open and transparent”? Only as recently as June of this year wasn’t the Cabinet Member Cllr Ann McLachlan stating “the key problem here that we have a high volume of FOIs from a small number of people”? So do Wirral Council see the people making FOI requests as the problem rather than their own cultural attitudes towards openness and transparency?

Partially unredacted invoice relating to an appeal to ICO Decision Notice FS50474741 (Robin Hopkins of 11KBW) Metropolitan Borough of Wirral for £1872 (invoice 117)

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