Why was I "gagged" from writing about a £1.2 billion contract?

Why was I “gagged” from writing about a £1.2 billion contract?

Why was I “gagged” from writing about a £1.2 billion contract?

                                                               

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Photo from Youtube video about £1.2 billion contract
Photo from Youtube video about £1.2 billion contract

Below is a transcript of the above Youtube video (which at the time of writing is uploading but should be available by about 6.20pm on the 28/7/2015).

Hello viewers, I’m John Brace. Normally I’m behind the camera not in front of it, but today I wanted to talk about a £1.2 billion contract that councillors have signed between Merseyside Waste Disposal Authority now called Merseyside Recycling and Waste Authority and SITA Sembcorp UK Limited.

A few weeks ago as part of the public’s rights under the audit when the public can inspect various invoices and contracts for three weeks each year I requested this particular contract, although as there weren’t any payments made on this contract under the last financial year, they first of all classed it as a freedom of information request, then they got back to me and said now it’s an Environmental Information Regulations request.

They did give me a copy of the contract but all the pricing information was blacked out. However the strange thing now after making Freedom of Information and Environmental Information Regulations requests for years and years is I came across something new in that when they sent me an email back saying this is the result of the public interest test as to why we’ve redacted certain bits, they referred to the Re-Use of Public Sector Information Regulations 2005 and basically said at the bottom that if I wanted to republish it or reuse it, I’d have to ask them for a licence!

Anyway I looked up the Re-Use of Public Sector Information Regulations 2005 and yes they do apply to information that’s been given out for freedom of information requests or Environmental Information Regulations requests.

Anyway I found out that the Re-Use of Public Sector Information Regulations 2005 were in fact repealed before the date of their letter.

They were repealed on the 18th July. So they don’t apply any more, but the Re-Use of Public Sector Information Regulations 2015 do apply and they contain some changes which is why I’m making this video.

You see in, let’s see if I can get it up in Regulation I think it’s 5, yep Regulation 5 of the of the Re-Use of Public Sector Information Regulations 2015 state these regulations do not apply to documents held by public service broadcasters and their subsidiaries, and other bodies and their subsidiaries for the purposes of the provision of programme services.

Now if you look up what these definitions actually mean in the Communications Act 2003, right, body means any body or association of persons, whether corporate or unincorporate, including a firm; so that could just mean me and Leonora, now the definition of programme services is a bit more complicated but the definition of programme services means a television programme service, the public teletext service, an additional television service, a digital additional television service, a radio programme service or a sound service provided by the BBC and then it goes on to define “television programme” means any programme (with or without sounds) which is produced wholly or partly to be seen on television and consists of moving or still images or of legible text or of a combination of those things.

Now I’ve checked whether videos on this Youtube channel are being watched on TVs and I’ll just have a quick look on my laptop and see. Yes, over the last year there have been 189 views on smart TVs and set top boxes for TV. So therefore strangely enough I come under the definition of, this comes under the definition of television programme and therefore the regulations do not apply to this particular document so I don’t have to ask their permission to publish it because it’s to do with this programme service and that’s why I’m recording this.

However on a final note I’d like to point out that the, shall we say the principle that every time somebody in the media makes a freedom of information request or an environmental information regulations request, before they use that information they’ve got to ask for permission from the public body to reuse it and state what purpose it’s for is well for anybody in the media who makes a freedom of information request and then writes stories on them is not the way it’s done.

Err, I don’t know if anybody else has heard of these regulations or whether they’re going to crop up in future FOI requests even though I think Wirral Council would quite like to send a boilerplate text at the end of each reply they send to me saying that I can’t use them unless I get their permission under the Re-Use of Public Sector Information Regulations 2015 in which case I’ll just make another video like this and then it doesn’t apply.

Anyway going back to the £1.2 billion contract between Merseyside Waste Disposal Authority or now Merseyside Recycling and Waste Authority and SITA Sembcorp UK Limited. This is an 864 page contract that over the lifetime of the contract they will pay out £1.2 billion for and relates to for years and years and years basically putting Merseyside’s rubbish on a train, sending it up to somewhere in the North-East of England, burning it and generating electricity from the rubbish.

I’m not sure what happens to the rubbish after they’ve burnt it but perhaps I need to read the contract better but I will be publishing the contract along with this video on my website so you can have a look for yourself. On the subject of the information that is blacked out, I’ll be looking into whether I’ll make a whatever the, I think it’s a reconsideration under the Environmental Information Regulations request for that information to be revealed but I’ll have to look into the detail and unfortunately basically the way the contract is worded it’s very unlikely that I’ll get access to the financial information in it but I’ll publish the rest of it on my blog, so you can have a read to see what your money will be spent on from 2017.

The only other thing, well two other things to say about this contract are firstly, this contract was signed back in 2013 and at that time the government were making various financial incentives to do this kind of thing so that the rubbish didn’t go to landfill but this was one of three projects where the government decided that there were already enough energy from waste contracts to supply our needs for years and years in the future and they withdrew the £90 million PFI credits for this particular contract.

Now the two other places that were affected by this decision decided to take the government to judicial review, I don’t know what happened as a result of that and finally the only other thing to point out about this contract is that there were, in the end two bidders for this contract one of whom was obviously the successful contractor SITA Sembcorp UK Limited.

Now the unsuccessful bidder sued Merseyside Waste Disposal Authority because they alleged things had happened during the tendering process that shouldn’t have and in fact they even got the court to basically set aside the contract or set aside basically implementing the contract until the court case was settled.

Now the court case was eventually settled out of court, the second placed contractor basically asked for Merseyside Waste Disposal Authority to pay all the profit they would have got if they’d been awarded the contract and of course Merseyside Waste Disposal Authority doesn’t have that kind of money because it would be over £100 million. I can’t remember what the estimate was, I think it was something between £100 million and £200 million. So anyway that’s the last thing I wanted to say about this and I hope you enjoyed this video and the contract is on my blog.

OK? Bye.


If someone could explain the meaning of Regulation 5(2) of The Re-use of Public Sector Information Regulations 2015:

“(2) These Regulations do not apply to a document unless it—

(a) has been identified by the public sector body as being available for re-use;
(b) has been provided to the applicant; or
(c) is accessible by means other than by making a request for it within the meaning of the 1998 Act, the 2000 Act (or where appropriate the 2002 Act) or the 2004 Regulations (or where appropriate the 2004 Scottish Regulations).”

and whether this means:

(a) the regulations don’t apply to FOI requests, EIR requests or data protection act requests or
(b) the regulations apply to everything but FOI requests, EIR requests or data protection act requests

and leave a comment it would be appreciated.

UPDATED 17:45 28/7/15 Merseyside Waste and Recycling Authority have today stated "the Authority is aware of its obligations in relation to transparency, and the publication of public sector information. We are more than happy that members of the public can access this material, and are free to question, query and publish aspects of the Authority’s work."

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Why after 2 years, 3 months and 19 days have Wirral Council U-turned on refusing a FOI request for minutes of a public meeting that they claimed was vexatious?

Why after 2 years, 3 months and 19 days have Wirral Council U-turned on refusing a FOI request for minutes of a public meeting that they claimed was vexatious?

Why after 2 years, 3 months and 19 days have Wirral Council U-turned on refusing a FOI request for minutes of a public meeting that they claimed was vexatious?

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

Wirral Council have over the years discussed the issue of Freedom of Information at many public meetings. I wanted to write about my experience of one request where it took 2 years and 3 and a half months for Wirral Council to release some of the information I requested.

Way back on the 29th March 2013 I made a FOI request to Wirral Council for minutes of various panels, statutory committees, advisory committees and working parties that councillors are on.

I asked merely for the minutes of the meeting held before making the request. One of these (numbered 5 on my list) was the minutes of the Standing Advisory Committee on Religious Education (SACRE).

This is what happened next.

20 working days went past and Wirral Council didn’t respond to the request, so on the 29th April 2013 I requested an internal review of Wirral Council’s lack of response.

On the 30th April 2013 Wirral Council replied refusing the request based on section 12 and claimed it would take longer than the 18.5 hours allowed to respond to the request.

I clarified what appeared to be a misunderstanding in the way I had phrased the original request and requested an internal review of this decision disputing that it would take over the 18.5 hour limit.

The internal review came back on the 30th July 2013, it changed the decision from refusing this part of the request on cost grounds (section 12) to refusing it on section 14 grounds (vexatious or repeated requests).

On the 14th August 2013 I appealed this decision to the Information Commissioners Office (ICO).

On the 19th June 2014 Wirral Council amended its response. It still refused this part of the request but now decided to amend its reason for withholding the information. It was no longer withheld relying on section 14 (vexatious or repeated requests) but back to section 12 (exemption where cost of compliance exceeds appropriate limit). The parts of the request that could be described as environmental information were refused using Regulation 12(4)(b) of the Environmental Information Regulations 2004 as being “manifestly unreasonable”. This is the EIR equivalent of the Freedom of Information Act’s vexatious exemption.

On the 8th September 2014 the Information Commissioner’s Office issued a decision notice for this request (FS50509081).

The 9 page decision notice said that Wirral Council had breached section 10(1) of the Freedom of Information Act 2000 and regulation 5(2) of the Environmental Information Regulations 2004 by not responding to this request within the first 20 working days of making it.

In addition to this it had breached s.16(1) of the Freedom of Information Act 2000 and regulation 9(1) of the Environmental Information Regulations 2004 which require Wirral Council to provide advice and assistance to those making requests.

Finally the decision notice required Wirral Council to issue a fresh response to this request within 35 calendar days of the 8th September 2014 that did not rely upon the exemption in section 12 of the Freedom of Information Act 2000 (cost grounds) or Regulation 12(4)(b) of the Environmental Information Regulations 2004 (that the environmental part of the request was “manifestly unreasonable”.

On the 4th November 2014 Wirral Council released redacted minutes of the Special Advisory Committee on Religious Education’s meeting of the 7th February 2013. Apart from the councillors on the committee anybody else on the committee had their name replaced by “name redacted”.

The minutes now looked like this:

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.

Their response stated why the names had been removed, relying on a section 40 exemption for personal information.

I consider that part of the requested information is exempt information under Section 40 (2) of the Freedom of Information Act 2000, in that the Complainant is asking for information which is personal data, in respect of which he is not the data subject. I consider that the disclosure of the requested information would contravene the second data protection principle that personal data shall be obtained only for one or more specified and lawful purposes and shall not be further processed in any manner incompatible with that purpose or those purposes. Certain individuals named in the Minutes dated 7 February 2013 (not including Councillors) would have a legitimate expectation that their personal data would not be further processed in a manner incompatible with the specified and lawful purposes of the Standing Advisory Council for Religious Education. I consider that the Complainant’s request for information can be met by giving him a redacted copy of the minutes dated 7 February 2013, which redacts the names of certain individuals and these are attached.

On the 12th November 2014 I requested an internal review of this (also challenging other information they had withheld). This is what I stated about this part of the request:

“5. Standing Advisory Committee on Religious Education (SACRE)

This relates to the minutes of the meeting held on 7th February 2013.

By statute this meeting meets in public. Another part of statute allows me to request the names and personal addresses of those on the committee. Other local authorities routinely publish the minutes of these SACRE public meetings. They do not redact the information you have.

My internal review on the redactions is then on the basis that:

a) the minutes relate to a meeting held in public
b) because of the above there is no legitimate expectation of privacy

You state “would have a legitimate expectation that their personal data would not be further processed in a manner incompatible with the specified and lawful purposes of the Standing Advisory Council for Religious Education.”

I will give more detail as to the lawful purposes of the SACRE referred to in relation to meeting minutes.

Regulation 7 of The Religious Education (Meetings of Local Conferences and Councils) Regulations 1994

“7. (1) After a meeting the following documents shall be available for inspection by members of the public at the offices of the authority until the expiration of six years beginning with the date of the meeting, namely,—

(a) a copy of the agenda for the meeting;
(b) a copy of so much of any report for the meeting as relates to any item during which the meeting was open to members of the public; and
(c) a copy of so much of the minutes of the meeting as relates to any such item.”

The minutes of the meeting have been held in the last 6 years. Therefore I have an existing right of inspection to a copy of the minutes in unredacted form. Therefore the names of people in the minutes cannot have the private and personal nature that you ascribe to this information.

Secondly in addition to the names, the Group (ranging from A to C) of the individuals present has also been removed. Unless there’s only one representative from that group, merely the group letter
cannot be used to identify an individual.

Therefore I am asking for an internal review based of the information that has been withheld not being provided.”

No response was received in response to the internal review request, so I complained to ICO again.

On the 30th April 2015 (nearly 6 months after the internal review request that are supposed to take a maximum of 40 days) Wirral Council responded.

They stated it would take 32 hours to do a proper internal review, so just classed the request for an internal review as “vexatious” (see section 14 of the Freedom of Information Act 2000).

Understandably I complained to ICO again.

Today (over 8 months since the last internal review request that they claimed was “vexatious”) Wirral Council got back in touch.

They now want to “amend their response”. Apparently the bit about the SACRE meeting minutes was not vexatious. They no longer seek to rely on the exemption contained in section 40 of the Freedom of Information Act 2000.

The minutes of the SACRE meeting of the Standing Advisory Council for Religious Education held on the 7th February 2013 were provided including names.

So for a request made on the 29th March 2013, the information was finally given out on the 17th July 2015 whereas FOI requests are required to be answered within 20 working days.

However, this change of heart of Wirral Council wasn’t just about the part of the request for a meeting of the Special Advisory Council on Religious Education. Their response to the part of the request for minutes of a meeting of the Hilbre Island Nature Reserve Management Committee was modified as follows:

Environmental Information Regulations 2004

Part 21

Hilbre Island Nature Reserve Management Committee

I enclose an extract from an email provided to the Information Management Team which was as follows:-

“There are no minutes from 2013 the Hilbre Island Nature Reserve Management Committee as the present Committee was formed in March 2014.”

This is the reason that the council responded to your original request that it did not hold any information

I asked a councillor on Twitter about whether the Hilbre Island Nature Reserve Management Committee existed prior to 2014.

Two councillors were kind enough to reply to my question. Cllr Chris Carubia stated “From the discussions today I know it has been in existence for over 5 years at least”.

Cllr Pat Williams replied, “Yes I was a proud member for a number of years.”

I include copies of the tweets below.

https://twitter.com/cllrccarubia/status/622150465715859456

Personally I believe the two Lib Dem councillors (one of whom was on the Hilbre Island Nature Reserve Management Committee) rather than Wirral Council’s officially stated position and I think I should draw to the attention of the Information Commissioner’s Office how their view differs from what Wirral Council states.

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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?

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?

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?

                                                                   

Merseyside Fire and Rescue Authority 30th June 2015 L to R Kieran Timmins (Deputy Chief Executive), Phil Garrigan (Deputy Chief Fire Officer), Dan Stephens (Chief Fire Officer), Cllr Byrom (Vice-Chair), Janet Henshaw (Monitoring Officer)
Merseyside Fire and Rescue Authority 30th June 2015 L to R Kieran Timmins (Deputy Chief Executive), Phil Garrigan (Deputy Chief Fire Officer), Dan Stephens (Chief Fire Officer), Cllr Byrom (Vice-Chair), Janet Henshaw (Monitoring Officer)

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)

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, 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


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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Incredible: Why did ICO find Wirral Council twice broke the law by taking too long to reply to 2 requests?

Incredible: Why did ICO find Wirral Council twice broke the law by taking too long to reply to 2 requests?

Incredible: Why did ICO find Wirral Council twice broke the law by taking too long to reply to 2 requests?

                                                                  

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

A bit like the experience I had recently of waiting ages for a bus in Liverpool recently, only for four buses back to back to turn up, the Information Commissioner’s Office have in the last fortnight issued two decision notices involving FOI requests to Wirral Council.

There is a small delay in decision notices being published on ICO’s website, but the first (FS50576394) involving a request I made that was considered under the Environmental Information Regulations can be viewed here. I previously wrote about Wirral Council’s U-turn about disclosing information in response to this request back in May.

The decision notice states “As the information was disclosed outside the 20 working day timescale the Commissioner has concluded that the Council breached the requirements of regulation 5(2). ”

I made the request on the 26th January 2015. Wirral Council ignored my request, so on the 24th February 2015 I requested an internal review. Wirral Council responded to the internal review on the 23rd March 2015 stating it had the information but was withholding it based on a regulation 12(5)(e) exemption.

For those who don’t know what a regulation 12(5)(e) exemption is it’s:

(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

(e) the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest;

I appealed this to the Information Commissioner’s Office on the 25th March 2015 and on the 11th May 2015 Wirral Council did a U-turn stating (you can view the exchanges between myself and Wirral Council on the whatdotheyknow website):

“Following your complaint to the Information Commissioner’s Office, the Council has decided to reverse its position, having previously relied on the exception contained in Regulation 12 (5) (e) of the Environmental Information Regulations 2004. I do not consider that releasing the information would now adversely affect the legitimate economic interest of a third party. The address of the property, which you have requested is 13 Thorneycroft Street, Birkenhead. I have copied this response to the Information Commissioner’s Office.”


As mentioned in my opening sentence, I’m also aware of a decision notice involving a Freedom of Information request that’s been issued recently that hasn’t yet been published on ICO’s website.

This decision notice (FS50568736) (which is not about a FOI request I’ve made) relates to the lack of response by Wirral Council to this FOI request made by Paul Cardin here.

This decision notice states:

“2. The Commissioner’s decision is that the Council has breached section 10(1) of FOIA by failing to respond to the request.

3. The Commissioner requires the public authority to take the following steps to ensure compliance with the legislation.

  • The Council should inform the complainant whether the requested information is held. If the information is held it should provide it to the complainant or else issue a refusal notice in accordance with section 17 of FOIA.
4. The public authority 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 this fact to the High Court (or the Court of Session in Scotland) pursuant to section 54 of the Act and may be dealt with as a contempt of court.”

and

“9. On receipt of the complaint the Commissioner contacted the Council to remind it of its duty to respond to requests for information within 20 working days and to ask that it respond to the complainant. Neither the complainant nor the Commissioner received a response.”

as well as

“11. The complainant made his request for information to the Council on 6 May 2014 but has failed to receive a response. The Council has clearly exceeded the 20 working day limit very significantly and therefore the Commissioner has found that the Council breached section 10(1) in its handling of the request.”

Certainly the common theme running through the two decision notices is Wirral Council exceeding the time limits in the legislation on responding to requests.

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Wirral Council U-turn on refusal of request for information after complaint to the Information Commissioner's Office

Wirral Council U-turn on refusal of request for information after complaint to the Information Commissioner’s Office

Wirral Council U-turn on refusal of request for information after complaint to the Information Commissioner’s Office

                                               

Last year, during the 2013/14 audit I requested various information on various payments Wirral Council has made to legal firms. One of these was an invoice for £700 for conveyancing done by DLA Piper UK LLP (a copy of which is below).

Wirral Council invoice DLA Piper UK LLP conveyance £700 7th August 2013
Wirral Council invoice DLA Piper UK LLP conveyance £700 7th August 2013

As you can see above it’s for a BACS payment (although the payments over £500 list this as a CHAPS payment) for £700, split into £200 for a contribution towards sewers (although the rest of what the £200 is for can’t be made out due to bad handwriting) and £500 to do with the purchase of the freehold title.

If you look at the image above you’ll find the address of the property is blacked out. Section 15 of the Audit Commission Act 1998 allow Wirral Council to redact information if it relates to a member of their staff (or payments or other benefits made to their staff connected with their employment) or to withhold personal information if the external auditor agrees to it.

However their auditor has confirmed that there were no such requests. Wirral Council also rely on the decision in Veolia ES Nottinghamshire Ltd v Nottinghamshire County Council & Ors [2010] EWCA Civ 1214 in blacking out information that falls into the meaning of “commercial confidentiality”.

So going back to the PR1 form above I wanted to know what the address that this £700 for conveyancing spent by Wirral Council was, so back on the 26th January 2015 I asked using the Freedom of Information Act for the address.

By the 24th February 2015, having received no reply to my request of the 26th January 2015 within the 20 days Wirral Council have to respond to FOI requests, I requested an internal review because of the lack of response.

On the 23rd March 2015, a Rosemary Lyon who is a solicitor working at Wirral Council replied to my request for an internal review. She regarded the request as one that fell within the Environmental Information Regulations 2004, so considered it as a representation under regulation 11.

She then went on to refuse the request using an exception in Regulation 12(5)(e) which states:

“the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest;”

The reasons she gave for refusing the request were:                                    

“in that a public authority may refuse to disclose information to the extent that its disclosure would adversely affect the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest. I have had regard to the guidance issued by the Information Commissioner’s Office, “Confidentiality of commercial or industrial information (regulation 12 (5) (e) Version 1.2. I consider that the following applies to the requested information in the context of the other information included in the payment requisition fund:-

  • The information is commercial or industrial in nature
  • Confidentiality is provided by law
  • The confidentiality is protecting a legitimate economic interest
  • The confidentiality would be adversely affected by disclosure.

I consider that the information relates to the commercial activity of a third party. I also consider that confidentiality is provided by law in that it is imposed on the Council as a public authority by the common law of confidence and contractual obligation. I consider that the confidentiality is protecting a legitimate economic interest. The First Tier Tribunal (Information Rights) confirmed in Elmbridge Borough Council v. Information Commissioner and Gladedale Group Ltd (EA/2010/0106, 4 January 2011) that to satisfy this element of the test, disclosure of the confidential information would have to adversely affect a legitimate economic interest of the person the confidentiality is designed to protect. I consider that disclosure of the requested information would adversely affect the legitimate economic interest of the third party and also that of the Council.

This exception is subject to the public interest test.

Public interest factors in favour of disclosure

  • Promotion of transparency and accountability of public authorities

Public interest factors in maintaining the exception

  • Disclosure would adversely affect the legitimate economic interest of a third party and interfere with commercial bargaining in the context of existing or future negotiations
  • Disclosure of the requested information would also affect the bargaining position of the Council with third parties.

I consider that in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information. I am therefore refusing your request for information on the basis that the exception contained in Regulation 12 (5) (e) of the EIR applies.”

On the 25th March 2015 I appealed Wirral Council’s refusal to the Information Commissioner’s Office.

Today Wirral Council reversed their position and stated:

“Following your complaint to the Information Commissioner’s Office, the Council has decided to reverse its position, having previously relied on the exception contained in Regulation 12 (5) (e) of the Environmental Information Regulations 2004. I do not consider that releasing the information would now adversely affect the legitimate economic interest of a third party. The address of the property, which you have requested is 13 Thorneycroft Street, Birkenhead. I have copied this response to the Information Commissioner’s Office.”

Now I know the address is 13 Thorneycroft Street, Birkenhead, I know what this payment for conveyancing is for. The properties in this road as far as I remember had been demolished by the date that this payment to DLA Piper UK LLP for conveyancing happened in August 2013.

In August 2013, Keepmoat were granted planning permission for 125 new houses here and have since built them and sold them on. In fact 13 Thorneycroft Street, Birkenhead doesn’t exist any more, it’s either part of the public open space at the back of the Laird Street Baptist Church or an off-street car parking space for one of the new properties.

So what was the “legitimate interest of a third party” that Wirral Council claimed it was protecting by not supplying the address? How on earth does giving this address interfere with Wirral Council’s “commercial bargaining in the context of existing or future negotiations”?

Unlike the Freedom of Information legislation, regulation 12(2) of the Environmental Information Regulations 2004 state:

A public authority shall apply a presumption in favour of disclosure.
Wirral Council invoice DLA Piper UK LLP conveyance 7th August 2013 address added
Wirral Council invoice DLA Piper UK LLP conveyance 7th August 2013 address added

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