Merseytravel and the LCRCA again refuse to show how your money is spent and claim it is vexatious to even ask!

Merseytravel and the LCRCA again refuse to show how your money is spent and claim it is vexatious to even ask!

Merseytravel and the LCRCA again refuse to show how your money is spent and claim it is vexatious to even ask!

                                           

Cllr Steve Foulkes (Lead Member for Finance and Organisational Development) front (right) answering a question at a public meeting of the Transport Committee (Liverpool City Region Combined Authority) 9th August 2018
Cllr Steve Foulkes (Lead Member for Finance and Organisational Development) front (right) answering a question at a public meeting of the Transport Committee (Liverpool City Region Combined Authority) 9th August 2018

The ongoing saga of trying to persuade Merseytravel and the Liverpool City Region Combined Authority to release details of a small number of invoices has now entered a new phase.

Last year I asked to inspect these invoices during the 30 day inspection period and was told this was unreasonable. I was asked to submit a FOI/EIR request (which I did). Now having submitted a FOI/EIR I am told Merseytravel estimate it would take 11 hours (within the 18.5 hour FOI cost limit). Merseytravel estimate that the activities of consulting and redacting (which don’t count towards the 18.5 hour limit) would take an estimated further roughly 24 hours that Merseytravel wish to class the request as vexatious instead.

Merseytravel acknowledge that part of the request could be an EIR request (which has no time limits) but have decided to base their estimates of time without excluding the EIR elements of it.
Continue reading “Merseytravel and the LCRCA again refuse to show how your money is spent and claim it is vexatious to even ask!”

WIRRAL COUNCIL goes to the dentist: a short play about FOI and local government

WIRRAL COUNCIL goes to the dentist: a short play about FOI and local government

The below is written in memory of my late Great-Uncle Joe who before he retired taught dentistry. I am currently writing an e-book about freedom of information of which the below is an excerpt.

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

WIRRAL COUNCIL, a "most improved" Council is in the dentists’ chair looking worried.

Hovering above the patient in the dentists’ chair is MR BRACE, the dentist. Every tooth of WIRRAL COUNCIL he has taken out before is displayed proudly in a cabinet in the waiting area and visitors leave comments about them.

WIRRAL COUNCIL (mumbling and looking worried): You want to take my teeth out, again!? So the public can look at my teeth!?

MR BRACE: Only some of them, don’t worry you’ll grow new ones! Or I could take X-rays of them instead?

WIRRAL COUNCIL (mumbling): I’ll have to think about this and get back to you in twenty working days.

Twenty working days pass. Nothing happens. MR BRACE phones WIRRAL COUNCIL.

MR BRACE: You said you’d get back to me!

WIRRAL COUNCIL (alarmed): Sorry, it will all cost too much and end up taking over 18 and a half hours of my time! (slams the phone down)

MR BRACE rings WIRRAL COUNCIL again.

WIRRAL COUNCIL (even more alarmed): Sorry now you’re just being… vexatious! (slams the phone down again)

MR BRACE rings ICO and tells them what happened.

A year later WIRRAL COUNCIL rings the dentist.

WIRRAL COUNCIL: Sorry I’ve changed my mind you’re not being vexatious, but it’ll still cost too much!

ICO after a year of scratching their head tell WIRRAL COUNCIL it won’t cost too much.

WIRRAL COUNCIL takes some of its teeth out (reluctantly) and hands them to the dentist. It claims despite conducting a thorough search of its own mouth, that the teeth it thought it had, and claimed it had and had been telling everyone it used for chewing food for two years, aren’t actually there.

It tells MR BRACE and ICO that he cannot have the other teeth because they contain "personal data" and after consulting its solicitor that to hand over some teeth would be "prejudicial to the effective conduct of public affairs".

MR BRACE asks WIRRAL COUNCIL to think again. WIRRAL COUNCIL says no, so he asks ICO.

WIRRAL COUNCIL (after trying to ignore MR BRACE) tells him and ICO that MR. BRACE is being vexatious and he can have no more of its teeth.

Then WIRRAL COUNCIL changes its mind and over two years after this saga started, hands over one more of its teeth (but with bits blacked out). Eventually it removes the blacked out bits.

ICO tell WIRRAL COUNCIL it is being very naughty with MR BRACE, feels sorry for Wirral Council so it let’s it keep one tooth, but also says to stop calling MR BRACE vexatious. ICO asks WIRRAL COUNCIL to provide a fresh response.

WIRRAL COUNCIL doesn’t like this!

WIRRAL COUNCIL just refers MR BRACE and ICO to its earlier decisions.

MR BRACE contacts ICO again. However ICO conveniently lose what most of what MR BRACE told them.

ICO tell WIRRAL COUNCIL once again it is wrong, ICO tell WIRRAL COUNCIL to hand over two more of its teeth.

MR BRACE thinks the whole thing (now lasting over 3 years) is getting very silly indeed!

So he asks for a meeting, where independent people at a "Tribunal" can decide whether WIRRAL COUNCIL should have to hand over its teeth (whether blacked out or not).

WIRRAL COUNCIL hands over two more of its teeth, again with bits blacked out.

WIRRAL COUNCIL hires a barrister to plead with the Tribunal to help keep its teeth.

ICO says its not going to come to such a meeting about WIRRAL COUNCIL‘s teeth but sends a written response.

A hearing date is set (16th June 2016 starting at 10:00am at The Employment Tribunal, 3rd Floor, Civil & Family Court, 35 Vernon Street, Liverpool, L2 2BX) and the rest is yet to be decided!

But why is making a simple FOI request like pulling teeth?

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What was the government’s response to the Independent Commission on Freedom of Information report?

What was the government’s response to the Independent Commission on Freedom of Information report?

                                                       

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

I will start this by declaring some interests in the area of freedom of information. I am the appellant in case EA/2016/0033 (which is a case with the First Tier Tribunal (Information Rights) involving decision notice FS50596346). A further case involving an appeal to the First Tier Tribunal (Information Rights) involving decision notice FER0592270 was put in the post on Monday, but is yet to be received by the Tribunal. There are also numerous ICO decision notices that have been issued about FOI requests I have made.

Yesterday the government published the final report of the Independent Commission on Freedom of Information and there is a ministerial written statement here about it.

Introducing new fees for FOI requests (above those that can be already charged) has been ruled out partly because this would lead to a reduction in FOI requests from the media and others.

The ministerial statement also refers to updated codes of practice published. Interestingly one of the requirements of this new code of practice will be for public authorities with a hundred or more full-time equivalent employees to publish detailed statistics on how they deal with FOI/EIR requests.

I presume this will be something similar to the quarterly reports issued by central government which give a detailed account of how FOI and EIR requests have been dealt with over that timescale.

As the ministerial statement states “The publication of such data not only provides accountability to the public, but allows the Information Commissioner to identify and target poorly performing public authorities more effectively.”

Certainly once the new code of practice is published, a new requirement on local government bodies to publish this detailed information will provide an insight into how FOI/EIR requests are dealt with.

There is also going to be revised guidance on the application of section 14(1) (vexatious or repeated requests). The ministerial statement states that they expect this only to be used in “rare cases” and that “the ‘vexatious’ designation is not an excuse to save public officials embarrassment from poor decisions or inappropriate spending of taxpayers’ money”.

There is also going to be consideration by the government of whether to include a requirement to publish expenses and benefits in kind received by senior public sector executives. It seems FOI requests have been made for these, but turned down on data protection grounds.

As I’m the Appellant in the Tribunal case EA/2016/0033 (which isn’t classed as “active” yet (as “active” in such cases is defined as from the point when a hearing date is set), I can reveal that the only major development in that case is that Wirral Metropolitan Borough Council has been added as a party to the appeal as second respondent (originally the case was just between myself and the Information Commissioner).

I’m still awaiting the Information Commissioner’s response (due by the 17th March 2016) and Wirral Council’s response is due not more than 21 days after they receive the Information Commissioner’s response.

Once the Information Commissioner responds and Wirral Metropolitan Borough Council responds to the Information Commissioner’s response, I have up to 14 days to respond to their responses.

The Tribunal have asked all parties to notify them of any dates they are not available between 6th June 2016 and 29th July 2016, so I presume a hearing date will be set on some day between those two dates.

I’ve also been sent a copy of the practice note on closed material in information rights cases.

I’m sure there are those that could comment better than me about a practice direction that leads to hearings discussing the secret information while one of the parties to the appeal is excluded (secret hearings) and a guide to keeping information secret from one of the parties to the case.

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

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

                                                                 

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

Wirral Leaks has awarded me Director of the Year in their 500th post. Although to be clear that’s really for this Youtube channel rather than this blog.

To be honest I shouldn’t really say the award is to myself as it isn’t entirely my work. I need to thank my long-suffering helper, my wife Leonora who supplies me with batteries when politicians waffle on for a long time.

Unlike Wirral Leaks who have just reached a mere 500 posts, this will be the 1,509th post on this blog. However unlike Wirral Leaks I’m not going to indulge any further in blowing my own trumpet, I might not go in for fancy graphics like they do, I just plod on. So on with the story.

This is a story with a number of options to it. Remember those books in the Choose Your Own Adventure series, which gave you options and depending on the option you turned to a different page? Well this is your chance. You have an option of five different versions depending on your choice. Just click on the relevant link (or read all five if you like).

Are you a:

a) Conservative supporter
b) Labour supporter
c) Lib Dem supporter
d) UKIP supporter
e) None of the above

Conservative supporter

Hi. Congratulations on winning the 2015 General Election. However now you’re in charge you’ve got to accept responsibility. Once of your MPs, a Mr. James Wharton MP (Parliamentary Under Secretary of State, Minister for Local Growth and the Northern Powerhouse) has decided to cover up a FOI request involving Labour-run Wirral Council. No I didn’t make the request, someone else did.

Not only have ICO found (decision notice FS50594521) that DCLG (Department for Communities and Local Government) broke the law in responding to this request, but Mr. James Wharton MP refused to release an audit report about business grants at Wirral Council because it would cause "prejudice to the effective conduct of public affairs".

Unlike one of his predecessors The Rt Hon Sir Eric Pickles MP (who was never short of a few things to say about local government), he’s chosen to cover things up instead. Really, what were you (and Mr. Wharton) thinking?

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Labour supporter

Hi. Congratulations on keeping control of Wirral Council in 2015. One of the more embarrassing episodes that’s been rumbling on for a while has been the BIG/ISUS issues, but this next bit will make you laugh. Someone made a FOI request to DCLG (Department for Communities and Local Government) for the Government Internal Audit Agency report about Wirral Council.

And guess what, the Conservative Minister, Mr. James Wharton MP (Parliamentary Under Secretary of State, Minister for Local Growth and the Northern Powerhouse (or Northern Poorhouse as some of the witty people in your party have renamed it)) decided to keep it a secret!

Yes doesn’t it make you laugh when the Conservatives are helping you?

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Lib Dem supporter

Hi. Didn’t know there were many of you left to be honest. Former Cllr Stuart Kelly sniffed a scandal over the whole BIG/ISUS issue at Wirral Council when he was a councillor. However Graham Burgess and Kevin Adderley denied there was anything wrong.

Probably the Europeans will ask for their money back so central government will ask Wirral Council for money back. Either way it’ll be embarrassing, but not for you!

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UKIP supporter

Yes, we all know you want to get out of Europe. This is another scandal involving European money, that was mismanaged. Seriously though you have no councillors on Wirral Council and despite 3.8 million votes only one MP. Life’s not fair eh? But look on the bright side the British National Party have been struck off the register of UK political parties! Plus if the Conservatives stick to their word there’ll be an IN/OUT (but no shake it all about) referendum on Europe.

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None of the above

You are the vast majority of people. Wirral Council mismanaged a business grants program involving European money. The Europeans are asking national government for it back. National government are asking Wirral Council for it back. Oh and everyone’s trying to cover it all up as it’s embarrassing.

I’d love to tell you all the details, but they’re in a report the government minister is desperately trying to keep a lid on. Covers ups never work or do they?

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What was in Merseyside Fire and Rescue Authority’s 2 page response to the FOI consultation?

What was in Merseyside Fire and Rescue Authority’s 2 page response to the FOI consultation?

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

Next is the response to the FOI consultation from the Merseyside Fire and Rescue Authority.

Again I’ll declare an interest as I’m alluded to in their response (in fact my profession is named) and my appeal to the Information Commissioners Office last year is explicitly referred to in a report going to councillors next week.

Now by their own figures, responding to all the FOI requests over the whole of last year (2015) used up the equivalent of ~0.375 of a full-time employee.

From what I remember, this means that they allocate more resources to their press office than FOI.

Staff wide Merseyside Fire and Rescue Service had last year an estimated 700 firefighters and I’d estimate 300 staff that aren’t firefighters (of course this is directly employed staff, not staff employed by contractors).

So 0.0375% of its staff budget (approx) is spent on answering FOI requests, the equivalent of around a third of a job of a full-time employee.

Personally if I was on the Merseyside Fire and Rescue Authority I’d be more worried about the other ~999.625 jobs, but there you go! It’s nice to see that they have some nice things to say about journalists in their response though and a report on FOI request will be considered by councillors on the Merseyside Fire and Rescue Authority next Tuesday afternoon. The agenda for that meeting is here and the Wirral Council councillors on it are Cllr Lesley Rennie and Cllr Jean Stapleton.

Below is the MFRA [Merseyside Fire and Rescue Authority] response to the FOI consultation, which you can compare to Liverpool City Council’s response.

Although it states it’s from the MFRA [Merseyside Fire and Rescue Authority] by the way it’s written “The Service considers” one assumes that as with LCC’s response it’s been drafted by officers. Unlike the attitude taken by Liverpool City Council Merseyside Fire and Rescue Service state they are "supportive of the Freedom of Information (FoI) Act".


Merseyside Fire and Rescue Authority

Freedom of Information Call for Evidence

Merseyside Fire and Rescue Authority (MFRA) would like to make the following comments in relation to questions 3 and 6 of the Independent Commission on Freedom of Information Call for Evidence:

Question 3:What protection should there be for information which involves candid assessment of risk? For how long does such information remain sensitive?

The Service considers that there should be some protection for public authorities in relation to the release of risk registers. High level information about risks and mitigation is appropriate for release and many authorities will publish this as a matter of course. When a request is made for detailed risk registers relating to on-going projects or activities, this is much more difficult for this Service to deal with. It is vital when ensuring that public services are being delivered effectively, that all risk are considered and that staff feel able to “think the unthinkable”. Often these risks are mitigated, but they still remain in risk registers and are open to misinterpretation or being sensationalised. The Service would request that consideration be given to risk registers of this type only being release after the project is completed.
Equally releasing risk mitigation measures prior to the completion of the project may compromise the
measures themselves exposing services to additional risk.

Question 6: Is the burden imposed on public authorities under the Act justified by the public interest in the public’s right to know? Or are controls needed to reduce the burden of FoI on public authorities? If controls are justified, should these be targeted at the kinds of requests which impose a disproportionate burden on public authorities? What kinds of requests do impose a disproportionate burden?

The Service is supportive of the Freedom of Information (FoI) Act, and values its role in allowing people access to information and giving them the right to find out about matters and decisions that affect them. However, use of the Act has become increasingly popular and the volume of FoI requests has increased over the years. For example, the table below shows the increase in requests to MFRS since 2011:

Year

FoI Requests received

FoI requests believed to be for commercial purposes (as far as can be established with the information available)

2011 72 Not recorded
2012 82 Not recorded
2013 101 Not recorded
2014 138 13
2015 131 17
 
 
 

Dealing with this increase in requests has had an impact on the Service which for Merseyside Fire Authority undoubtedly places increased pressure on relatively small teams. Over the last four years, the Fire and Rescue Authority has had to make savings of £20 million as a result of Government spending cuts. The Authority is required to make a further £6.3 million savings in 2015/16. It is also clear that the Authority will also face further significant cuts over the course of the next Parliament. The Authority has already made significant reductions in its support services and staffing, which means there are fewer staff available to service FoI requests. To save £6.3 million in 2015/16, the Authority has identified another £2.9 million to be cut from support services, further reducing capacity.

Whilst the Service respects the rights of citizens to ask for information that may affect their lives and communities and recognises the role that journalists may play in seeking out inefficiencies or poor practices in the public sector, there is a cost associated with that. The staff collecting, collating, checking, redacting and authorising release of the requested information all have other work to do. As a result, dealing with a FoI request is likely to take staff away from core business.

What the Service believes is particularly difficult to justify is the extent to which commercial organisations use FoI to request information to develop new business leads or seek a commercial advantage. The private sector is effectively using the diminishing resources of the public sector for free, when those resources could be put to better use and there is no return on that investment for the public sector.

What we would ask the Commission to consider is either, levying a charge for such requests, or the ability for an organisation to refuse the request where the applicant is not able to demonstrate that the request is in the public interest.
Even when requests could be considered to be in the public interest, for example in relation to a public consultation on the Service’s plans, the enthusiasm of some members of the public to seek more and more detailed information can place significant pressure on a small authority. Five requests from one person for similar but subtly different complex information in the space of one or two months does result in disproportionate effort. This is despite the fact that individually, the cost of meeting the requests would not be sufficient to justify refusal and the subtle differences between requests rule out treating them as vexatious. It is the cumulative effect that has the impact.

It is also difficult to treat requests as vexatious or indeed classify the work required as excessive without it being perceived by the requestor or indeed the public or press as defensive – so in effect services provide the information for fear of being perceived as less than transparent.

Merseyside Fire & Rescue Service has been recording the time spent by all officers involved in processing all FoI requests since July 2015 (32 completed requests). Given it was already keen to understand and share the impact of such requests with the Authority and Government departments.

As such the total time spent since recording began has totalled 153 hours spread across a range of staff from administrators to the Chief Fire Officer. This equates to an average of 4.8 hours per request. If this was applied to the total number of requests received so far this year it would total 629 hours or 90 working days. With the lost time costs in the thousands.

This is resource that can be ill afforded during these times of austerity, so it is vital that the FoI requests processed are of valid public interest and not to further the profits of a commercial organisation.

The Service has welcomed the opportunity to contribute to this call for evidence and looks forward to the publication of the outcomes.


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