ICO rule that Wirral Council’s refusal of FOI request based on "commercial interests" is incorrect (FS50585536)
ICO rule that Wirral Council’s refusal of FOI request based on "commercial interests" is incorrect (FS50585536)
ICO Information Commissioner’s Office logo
The Information Commissioner’s Office have issued another decision notice in favour of this blog. You can read it for yourself as I’ve uploaded it to the blog decision notice FS50585536 (although eventually it’ll be published on ICO’s website).
It’s five pages, so I’ll summarise what it states and go into the history.
As a local government elector during the 2013/14 audit I requested various invoices for legal work which I have a legal right to inspect and receive free copies of as a local government elector on the Wirral.
Sadly the invoices that this decision notice refer to were only the first page of a multi-page invoice. I made a FOI request for the rest of the invoices. One was for £48,384 and the other for £2,700 (both from Weightmans).
Wirral Council first refused the request on a quite baseless and ludicrous application of stating that they were covered by legal professional privilege.
Whoever dealt with it at internal review agreed with me that this was incorrect.
However then Wirral Council refused the request giving the reason of "Commercial interests".
The Information Commissioner’s Office was not convinced by Wirral Council’s arguments and has rejected Wirral’s application of withholding the information based on commercial interests.
I am pleased the decision notice doesn’t give Wirral Council the option to "pick another reason" to withhold the information. There’s one request I have to Wirral Council now on its third decision notice because Wirral Council has exploited that loophole in the past.
So Wirral Council have (well had from the date of the decision notice which was 2 days ago) 35 days to supply the information or 28 days to appeal the decision.
Let’s hope Wirral Council stop playing games over freedom of information and do the right thing?
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What’s in the 370 page whistleblowing report on Wirral Council’s grants to businesses?
What’s in the 370 page whistleblowing report on Wirral Council’s grants to businesses?
ICO Information Commissioner’s Office logo
The BIG/ISUS whistleblowing issues have been already covered in extensive detail by this blog over the past few years. However the latest twist in this story was yesterday’s release of a 370 page 2012 internal audit report into the matter following ICO decision notice FS50559883.
Wirral Council have finally released an internal audit report dated 13th January 2012 that went to Bill Norman (then Monitoring Officer/Director of Law, HR and Asset Management at Wirral Council). Those with long memories will remember that Bill Norman was suspended later that year over the Colas matter, then in September 2012 councillors agreed he should receive £146k plus £5k legal expenses to leave.
Back to the BIG/ISUS matters and let’s just quickly recap the blog posts I’ve written on the many aspects of this matter as they provide some background. I’m sure there are one or two I may have left out (I remember I republished some of my earlier blog posts which contained the agreements for BIG/ISUS in the lead up to the special meeting of the Audit and Risk Management Committee last October).
Million pound contract between Wirral Council and Enterprise Solutions (NW) Ltd for ISUS scheme was never signed (22/8/13) This blog post was about the contract between Wirral Council and Enterprise Solutions (NW) Ltd for the ISUS (Intensive Start Up Scheme) not having been signed. At the special meeting of the Audit and Risk Management Committee in October 2014 former Strategic Director for Regeneration and Environment Kevin Adderley did claim that a signed version had eventually been found and brought it to that meeting.
BIG/ISUS Reports: Wirral Council and Merseyside Police in “Alice in Wonderland” (4/10/13) Wirral Council and Merseyside Police respond to FOI requests for the reports for Grant Thornton’s (Wirral Council’s auditor) report into the ISUS matters. Wirral Council state they can’t release it because they’ve referred the matter to Merseyside Police, a Detective Chief Inspector for Merseyside Police states that "This matter is currently in the hands of Wirral Borough Council" and suggests that I make a FOI request to Wirral Council.
Or as I sum it up "Wirral Council won’t say anything because it’s in the hands of Merseyside Police, but Merseyside Police say it’s "currently in the hands of Wirral Borough Council".
So that’s a brief summary of developments so far? So what does the new information reveal? It’s a report by an auditor at Wirral Council which details the allegations the two whistleblowers made, the investigations into those allegations and the auditor’s opinion as to whether the whistleblowers were correct or not.
The executive summary runs from pages 9-16 and details the allegations made by the two whistleblowers and whether what was inspected during the investigation substantiated or refuted these claims. Pages 17-20 go through each of the allegations in detail as well as whether each allegation is correct or not and the implications that follow. Pages 21-45 are the main report which at the end contain 14 recommendations. Had some of these recommendations been implemented in 2012, some of the unanswered questions surrounding this matter would have been dealt with much earlier, such as the transfer of assets from Lockwood to Harbac.
At the special meeting of the Audit and Risk Management Committee in October 2014, councillors, officers and those speaking at the public meeting were warned not to refer to names of companies, yet the release of this 2012 audit report only removes the names of Wirral Council employees (and former employees). These matters are now out in the open (which should’ve happened before the Audit and Risk Management Committee met last year). Had this 2012 internal audit report been made available to councillors before that meeting the discussion may have been very different.
However it only came to light because of a FOI (Freedom of Information) request made by one of the whistleblowers and even then only after the Information Commissioner’s Office intervened with a decision notice. Certainly the whistleblowers must both feel vindicated by the conclusions reached in this detailed 2012 internal audit report.
The Liberal Democrat Group of councillors on Wirral Council plus the Green Party Councillor Pat Cleary have tabled the following Notice of Motion for the next Council meeting on the 12th October 2015 on the subject of FOI requests. It reads as follows:
OPEN GOVERNMENT ?
This Council recognises that the Information Commissioner’s Office, as the independent authority set up to uphold information rights in the public interest and to promote openness by public bodies, upheld 13 complaints against Wirral Council in the past year.
Of the 18 notices issued between 29 September 2014 and 24 August 2015, the majority (72%) of complaints were upheld.
Council believes that this is a matter for concern, requiring an explanation to its Members.
Council requests that lessons should be learned and applied from these decisions and questions whether Officers have been excessively cautious or defensive in their interpretation of the legislation.
Council, therefore, requests that the legislation is approached with greater regard to the ‘public interest test’ so that the risk of further reputational damage to Wirral can be reduced.
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However parts 15, 18, 19 and 26 of the request were refused by Wirral Council again.
All those four parts of the request have been withheld because Wirral Council decides that section 36 (prejudice to effective conduct of public affairs) is engaged. The minutes of the Safeguarding Reference Group (part 26) have an additional reason for refusal because of section 40 (personal information).
I of course plan to appeal this latest refusal to ICO again (which probably won’t come as a surprise to anyone). Essentially however the problem I face to do with this request (which may be familiar to those who make FOI requests and have more experience than I do).
Public body decides on a reason to refuse a FOI request initially and at internal review (this stage could take up to 60 days). ICO disagree with the reason and issue a decision notice requiring the public body not to use that reason for refusing that request and to either provide the information or another reason.
So the public body comes up with another reason. That reason is challenged at internal review (again adding another 60 days). That reason is then appealed to ICO who disagree with the reason and ICO issue another decision notice.
The public body picks another reason to refuse the request and eventually it becomes a merry-go-round. The public body clearly really doesn’t want to give up the information, yet ICO is giving the public body a loophole each time a decision notice is issued by giving them a chance to pick another reason.
The FOI request this relates to was made through the excellent whatdotheyknow.com website on the 29th March 2013. It’s for minutes of the meetings of 26 different panels, statutory committees, advisory committees and working parties that councillors are appointed to by Wirral Council.
In September 2014, the Information Commissioner’s Office issued 9 page decision notice FS50509081. In a nutshell that decision notice stated that by the 13th October 2014 Wirral Council had to:
b) advise whether it held the minutes of these meetings or not.
Wirral Council did not respond to the decision notice by the 13th October 2014. Instead it took a further three weeks than was allowed and Wirral Council responded on the 4th November 2014. Minutes of seven meetings were supplied (some minutes were supplied with some information blacked out). In response to other parts of the request it provided links to its website.
This left nine disputed parts of the request which were in relation to the bodies below (I’ll use the original numbering). JCC stands for Joint Consultative Committee and Members means councillors. I provide under each one what it’s remit was:
4 (School Appeals Panel)
To consider, as part of a statutory review process, appeals against decisions by the Local Authority (or the Governors of voluntary or aided schools) concerning the allocation of places in primary and secondary schools, and decisions by governing bodies concerning the exclusion of pupils.
The School Appeals Panel is drawn from a “pool” of lay members or members with experience in education. However, Councillors are ineligible to serve on Appeals Panels for schools under local authority control.
5 (Standing Advisory Committee on Religious Education (SACRE))
SACRE is responsible for advising the local authority on matters concerning the teaching of religious education and collective acts of worship; it decides on applications for determination of cases in which requirements for Christian collective worship are not to apply; and may require the local authority to review its agreed syllabus.
8 (Adoption / Fostering Panels)
As part of a wider membership, to determine applications for the adoption and for the fostering of children.
10 (Unified Waiting List Management Advisory Board)
To consider appeals from applicants who consider they have been unfairly treated or unfairly excluded from the waiting list, having exhausted the Steering Group appeals procedure.
11 (Discharge from Guardianship by Wirral Council under the Mental Health Act 1983 Panel)
To hear requests to discharge service users subject to guardianship upon the application of a professional responsible for their care.
15 (Headteachers and Teachers JCC)
To meet with headteachers’ and teachers’ representatives to discuss educational issues.
18 (Members’ Training Steering Group)
To advise on the preparation of the annual programme of training for Council members and on individual applications to attend courses.
19 (Members’ Equipment Steering Group)
To review IT equipment provision for members.
26 (Safeguarding Reference Group)
Established by Cabinet on 15 April 2010 for the purpose of ensuring that the most senior community leaders of the Council are enabled to carry out their responsibilities of safeguarding children and adults in Wirral.
Minutes of a Unified Waiting List Management Advisory Board meeting (part 10 of the request) Wirral Council merely stated “Officers are investigating if this Board has ever met/if there are any minutes available and we will answer this part of your enquiry as soon as possible.”
So I requested an internal review of the application of these exemptions on the 12th November 2014. On the 30th April 2015 Wirral Council responded to the internal review request. I’ll point out here that internal reviews are supposed to be completed within 40 days, but Wirral Council took 5 months.
Wirral Council also pointed out that since the Council’s housing stock was transferred out of Wirral Council’s control in 2009, that the Unified Waiting List Management Advisory Board (part 10 of the request) hadn’t met.
In relation to part 21 (Hilbre Island Nature Reserve Management Committee) Wirral Council stated “There are no minutes from 2013 the Hilbre Island Nature Reserve Management Committee as the present Committee was formed in March 2014.”
However Wirral Council still regarded the rest of the internal review request to be vexatious.
This decision notice found in relation to part 4 (School Appeals Panel) and part 11 (Discharge from Guardianship by Wirral Council under the Mental Health Act 1983 Panel) that Wirral Council does not hold information related to this part of the request.
This finding on the school appeals panels I find odd since the school appeals panel meets at Wallasey Town Hall. In response to a previous FOI request Wirral Council stated that it pays the taxi expenses for school appeals panel members and Wirral Council employees from the Legal & Member Services section of Wirral Council take the minutes of these meetings. Apparently Wirral Council states that there were School Appeal Panel meetings in 2012 but as they only keep the decision notices for 2 years that now it’s 2015 that Wirral Council don’t have them any more.
ICO also found that Wirral Council didn’t hold meetings of the Hilbre Island Nature Reserve Management Committee and believed Wirral Council when it stated “There are no minutes from 2013 the Hilbre Island Nature Reserve Management Committee as the present Committee was formed in March 2014.”
This is disputed by both Cllr Chris Carubia and Cllr Pat Williams as you can see by their response to a tweet below:
However, ICO stated that Wirral Council breached section 10 (time for compliance with request) of the Freedom of Information Act 2000 with regards to part 5 (Standing Advisory Committee on Religious Education (SACRE)) of the request and part 10 (Unified Waiting List Management Advisory Board) because “it did not disclose information or provide a response in relation to these parts within 20 working days”.
ICO also stated in its decision notice that Wirral Council had incorrectly applied section 14(1) (vexatious or repeated requests) to parts 15 (Headteachers and Teachers JCC), 18 (Members’ Training Steering Group), 19 (Members’ Equipment Steering Group) and 26 (Safeguarding Reference Group) of the request, because “these elements of the request are not vexatious”.
ICO did decide that Wirral Council had correctly applied section 14(1) to part 8 (Adoption/Fostering Panels) of the request because it deemed it to be vexatious (but is clarified in the decision notice as being a “disproportionate burden”). Wirral Council supplied the minutes of one adoption panel meeting and one fostering panel meeting to the Information Commissioners Office which came to a total of 95 pages. Wirral Council estimated it would take 23.5 hours of staff time (just over 15 minutes a page) to make the necessary redactions.
However the minutes of the Headteachers and Teachers JCC meeting, Members’ Training Steering Group meeting, Members’ Equipment Steering Group meeting and Safeguarding Reference Group came to less than 15 double-sided pages (30 sides of A4).
The decision notice also states “The complainant will not receive a response to some parts of his request until more than two years after he submitted it.”
Either Wirral Council or myself could appeal this ICO decision notice to the First-Tier Tribunal (Information Rights) within the next 28 days.
Here are some quotes from the decision notice (committee in the first quote refers to Hilbre Island Nature Reserve Management Committee).
“The Council, however, confirmed to the Commissioner on 20 July 2015 that, having undertaken a thorough search, it does not hold any Committee minutes from 2013 or earlier.
ICO believed Wirral Council so I suppose these published minutes of the Hilbre Island Nature Reserve Management Committee published on Wirral Council’s website from the 13th April 2007, 23rd November 2006, 13th July 2005 and even as far back as 6th April 2001 are just figments of my imagination. Perhaps I’m not “on message” enough!
Here’s another quote:
“The Council’s information manager had calculated that it took 70 hours and £1,750 to provide its response to the complainant dated 4 November. It argued that the amount of time the information management team had to spend on locating, retrieving and reading information falling within the scope of the request had a detrimental impact on the team.”
On the 4th November 2014 Wirral Council provided 22 A4 pages of information. The rest it either said it didn’t hold, was already on its website or that an exemption applied. That’s £79.54 per a page (or over 3 hours per an A4 page) of released information! How can it have had a “detrimental impact on the team” when Wirral Council took the 35 days the decision notice allowed plus an extra 22 days!
and another
“The Council says this work would cause a disproportionate burden because the request does not appear to have an inherent purpose or value.”
So knowing what and how councillors make important decisions on the public’s behalf doesn’t have an “inherent purpose or value”?
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First-tier Tribunal (General Regulatory Chamber)
124. The General Regulatory Chamber hears a wide range of appeals on regulatory matters, for example charities, consumer credit, transport and appeals from decisions of the Information Commissioner. We do not currently charge fees for proceedings in this chamber, with the exception of appeals in relation to gambling licences. In these cases, the fee charged is based on the value of the licences that are in dispute. We are not proposing to change the fees for these proceedings.
125. In 2013–14 the estimated cost of the General Regulatory Chamber (including Gambling) was £1.6m. The fee income generated from Gambling proceedings (the only fee charging tribunal within the General Regulatory Chamber) was £11,600.
126. In the remaining jurisdictions within the General Regulatory Chamber, we have proposed one fee for an appeal decision on the papers and one fee for an oral hearing. Our proposal is to charge a fee of £100 to issue proceedings, which would entitle the claimant to a decision based on a review of the papers. The claimant may alternatively elect for an oral hearing, in which case a further fee of £500 would be payable. Based on current volumes, we estimate that this proposal would generate a cost recovery percentage of around 17% after remissions.
127. The fees will also apply to “reference” cases where cases are started in the first-tier Tribunal but have to be referred directly to the Upper Tribunal for a first instance hearing.
Questions
Question 14: Do you agree with the proposed fees for all proceedings in the General Regulatory Chamber: specifically £100 to start proceedings with a determination on the papers; and a further fee of £500 for a hearing? Please give reasons.
Question 15: Are there any proceedings in the General Regulatory Chamber that should be exempt from fees? Please give reasons.
I’d better explain a bit better what the above is about by explaining the process to making a FOI request.
You make a Freedom of Information Act request to a public body and if is turned down (whether in part or in full) you can ask the same public body for an internal review.
If at the internal review there is still information withheld and you feel that they shouldn’t have withheld the information you can appeal the internal review decision to the Information Commissioner’s Office.
If either the public body or the person making the FOI request disagree with the decision notice, they have 28 days to appeal the decision to the First Tier Tribunal (Information Rights) which is part of the General Regulatory Chamber.
Appeals can then be made of decisions of the First Tier Tribunal (Information Rights) on a point of law only to the Upper Tribunal.
The consultation is proposing that if someone (whether the public body or the person making the request) wishes to challenge an ICO decision notice by appealing it to the First Tier Tribunal (Information Rights) that there will be a charge of £100 if the decision is made on the papers and £500 if a hearing is required.
So what do readers think about this proposed change? Most of the appeals to ICO decision notices to the First Tier Tribunal (Information Rights) are by litigants in person, who unless they fall into one of the categories of people who don’t have to pay fees a fee of £100 or £500 may make them think twice before appealing a decision.
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