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.
Merseyside’s Fire and Rescue Authority’s costs application of £1,212 has been rejected by the Tribunal. Although the decision also refers confusingly to a total amount of their costs application of £1192.23.
Two out of the three Tribunal Members (although it doesn’t specify which two) don’t think I acted unreasonably in the period 4th August 2016 to 22nd August 2016. This means £224.66 of MFRA’s costs application is rejected by a majority decision of the Tribunal of 2:1.
Of the remaining £967.57, a further £467.57 is rejected.
This leaves £500.
Basically the argument about the £500 is this.
In late August 2016 following a request from the Tribunal, I stated to MFRA that if they were to provide me with the 4 A4 pages requested, I would be happy for the case to be ended by consent order.
MFRA chose not to end the case this way (although I did receive the 4 A4 pages from ICO on the 14th October 2016). I was sent an altered version of the 4 pages from Merseyside Fire and Rescue Authority about 48 hours before the hearing.
Therefore because MFRA had legal costs from 22nd August 2016 to 23rd September 2016 this is what the application is about.
However in the decision the Panel admit that they agreed to MFRA’s costs application at the hearing before they had actually read the bundle for the hearing.
Indeed the fact they hadn’t read the bundle for the hearing before making decisions on costs is recorded in the reasons for the decision itself. Is it reasonable to expect the judiciary to read the papers before reaching a decision?
In fact the wording of the decision implies the panel members were put to great inconvenience by having to read the bundle and travel to the hearing itself!
There are legal arguments I could make as to why this £500 costs award shouldn’t have been made in the first place, but I will not reveal those until the matter is settled.
I feel pretty confident that the £500 will be overturned on appeal and I intend to appeal it within the time limit for doing so. Certainly the majority (£761.50) of Merseyside Fire and Rescue Authority’s costs application has already been rejected.
I notice that somebody has put the wrong case number on the decision which shows the Tribunal’s ongoing flair for accuracy!
It’s managed to achieve that now with a costs order for £500, although estimates of the legal costs for First-tier Tribunal cases are usually at around £10,000 for the public body involved.
The bit in the decision about a decision being made on the papers, I don’t remember being made at the hearing (although I will check my notes). In my view a hearing might have avoided some of the misunderstandings that have obviously arisen.
I’ve asked the Tribunal to reissue the costs decision with the correct case number (EA⁄2016⁄0054 rather than EA⁄2016⁄0117).
Does anyone wish me to include a copy of the decision in this blog post?
There are matters that came out during the Tribunal which I will publish on this blog that as they relate to the expenditure of a total of £8.4 million of public money I’m staggered that the Tribunal would write in its decision, that the First-tier Tribunal case “has involved costs to the public quite disproportionate to its significance or the matters in issue.”
Clearly the significance of the issue (in my eyes) is that MFRA told untruths to the public during its consultation to get the answers it wanted and refused to tell the public it had put aside £300,000 to pay Wirral Council for the land at first Greasby, then Saughall Massie.
Those untruths in the consultation have now formed part of Merseyside Fire and Rescue Authority’s planning application.
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.
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?
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.
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.
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’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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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).
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?
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?
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!
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.
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?