Wirral Council U-turns on refusal of FOI request for values and culture presentation

Wirral Council U-turns on refusal of FOI request for values and culture presentation

Wirral Council U-turns on refusal of FOI request for values and culture presentation

                                                

Over a year ago (3rd July 2014) I made a Freedom of Information Act request to Wirral Council using the excellent whatdotheyknow.com website for an email (and an attached Powerpoint presentation to the email) sent by Surjit Tour on Thursday 24th April 2014 with the subject of L&MS – Values and Culture Presentation. L&MS stands for Legal and Member Services (Member meaning councillor in local government jargon).

On the last day of July (31st July 2014) I got a reply. Mr Tour had considered the FOI request and refused it. His response referred to section 36 (prejudice to effective conduct of public affairs) of the Freedom of Information 2000. For those familiar with this part of the Freedom of Information Act this is one of the parts that is subject to a public interest test.

Surjit Tour (left) at a recent meeting of Wirral Council's Standards and Constitutional Oversight Committee
Surjit Tour (left) at a recent meeting of Wirral Council’s Standards and Constitutional Oversight Committee

Mr. Tour (who made the first decision on this request) claimed in refusing the request that releasing his email (and attachment) would:

(b) inhibit the free and frank provision of advice or exchange of views;
or
(c) otherwise prejudice the effective conduct of public affairs.

 

Further detail was given about why this request was refused “The information requested was used as an integral part of a management meeting where a corporative initiative was openly discussed and debated” and “The Council has held/is holding a series of management meetings where there must be a safe space to share corporate initiatives and openly discuss and debate any issues arising in these meetings. It is also my reasonable opinion that if the requested information were to be disclosed, it would likely have a “chilling effect” that would inhibit the free and frank discussion and debate on matters of importance to the Council and its workforce. Any disclosure is likely to undermine the ability of officers to express themselves in a frank and open manner.”

It was further claimed that “disclosure would restrict the free and frank exchanges of views”, “disclosure would stifle debate at such meetings and could lead to poorer decision making” and “disclosure would have a potential detrimental effect on future management meetings” although “transparency in disclosure of the content of the management meeting” was given as a factor in favour of disclosure. Also stated in the response was “I consider it is crucial that officers are able to engage in discussion and exchange views in an open and frank manner.

At the time I got this response I didn’t request an internal review. I’d requested internal reviews before when Mr. Tour had claimed section 36 applied to the information requested. You can see an example of a request here for minutes of the Standards Working Group meeting of the 17th December 2013 where Mr. Tour refuses it based on section 36 and at internal review the former Chief Executive of Wirral Council Graham Burgess agrees with Mr. Tour.

At the time I probably thought it pointless to request an internal review as I thought the Chief Executive would just agree with Mr. Tour.

In February 2015 councillors at Wirral Council appointed a new Chief Executive Eric Robinson. So I submitted an internal review request on the 25th March 2015.

The new Chief Executive Eric Robinson on the 21st April 2015 agreed with Mr. Tour.

His responses were as follows, first to my point about whether it was a conflict of interest for Mr. Tour to decide on whether to release his own email:

I do not agree that Mr. Tour would have been conflicted when he gave careful consideration to and applied the Section 36 exemption.

 

In response to the point that the email and attachment was sent before the meeting, didn’t detail what was debated at the meeting therefore how could it “stifle debate at such meetings”?

The contents of the attachments still remain current and topical to the Council. Officers who took part in this management meeting and those who will be present at further meetings, must be afforded a safe space in which they can openly discuss and debate these corporate initiatives.

 

Finally responding to my point “well surely if Wirral Council is “open and transparent” then being “open and transparent” here about a very important aspect of the organisation (values and culture) would demonstrate to the public that Wirral Council has changed?” he replied:

The Council is committed to openness and transparency and communicates this to the public in many ways. As well as the consultation exercises the Council has been involved in with members of the public; we also publish information and communications via our web pages.

 

He included various links to the Council’s website to the Corporate Plan, a page on the Transparency Code and a page on the Freedom of Information Act 2000 & the Data Protection 1998.

Finally he stated:

To summarise, as the Reviewing Officer, I have carefully considered the original response provided by the Monitoring Officer and my reasonable opinion is that I fully concur with his initial response. I am of the opinion that the exemption contained within Section 36 of The Freedom of Information Act 2000 has been correctly and appropriately applied. As the Reviewing Officer, I believe I have considered all relevant and material factors and issues.”

 

and

After taking all factors into account, it is my reasonable and considered opinion that the reasons and rationale provided by Mr. Tour are valid and robust in nature. I do not consider I need to add anything more in this regard and I am satisfied that the public interest test in maintaining the exemption outweighs the public interest for disclosure.”

 

So on the 19th May 2015 I appealed this decision to the Information Commissioner’s Office. On the 11th August 2015 Wirral Council supplied the attached Powerpoint presentation but stated that the email had since been deleted.

Shortly after I received an email from the Information Commissioner’s Office stating that the case was now closed, although I have emailed them this morning asking them to clear up that the Chief Executive at internal review stated “The contents of the attachments still remain current and topical to the Council.” which would suggest more than one attachment to the email, yet only one attachment was supplied.

So what is in this eighteen slide Powerpoint presentation that Mr. Tour and Mr. Robinson seemed so keen to prevent being released?

Ironically (considering what I’ve just written above) slide 10 on integrity states

We communicate & are open and honest in what we do.

 

However that point aside, the slides are about “organisational vision”, “values” and “culture”.

Slide 7 states that Wirral Council’s vision is:

“Wirral should be a place where the vulnerable are safe and protected, where employers want to invest and local businesses thrive and an excellent quality of life is within the reach of everyone who lives here.”

 

Slide 9 introduces Wirral Council’s values which are:

integrity, efficiency, confidence and ambition”.

 

Slides 10 to 13 define each of these values.

Integrity

  • We treat everyone with respect
  • We are accountable and take responsibility for our actions & decisions
  • We communicate & are open and honest in what we do

Efficiency

  • We seek innovative & creative solutions
  • We work effectively together to make the most of our resources
  • We proactively look for ways to improve

Confidence

  • We fully use the skills, talents & assets of our partners, communities and organisation
  • We take decisions and deliver
  • We learn from & share knowledge and expertise with others

Ambition

  • We deliver with energy and pace
  • We are risk aware, not risk averse
  • We have pride in our place and our people striving to be the best we can for Wirral”

The last slide refers to “support & change agents to be allocated”. If anyone would like to explain to me what a “support & change agent” is please leave a comment!

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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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Government consults on introducing £100 (papers) and £500 (hearing) fees for appeals to ICO decision notices

Government consults on introducing £100 (papers) and £500 (hearing) fees for appeals to ICO decision notices

Government consults on introducing £100 (papers) and £500 (hearing) fees for appeals to ICO decision notices

                                                 

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

Four days ago the Ministry of Justice started consulting on increasing fees for various civil courts and tribunals. The consultation closes on the 15th September 2015.

This is what one of their consultation documents states:

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.

The Information Commissioner’s Office then look into the matter (which can take months as ICO have a backlog of cases) and issue a decision notice (sometimes even if the public body changes their mind and releases the information requested during this time). You can see an example of a decision notice ICO issued for a request I made to Wirral Council on ICO’s website here.

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.

The Panopticon blog has also written about this consultation (far more eloquently and in a more entertaining way than I could manage) in a piece headlined Circle the Wagons: They are Coming for the Information Tribunal.

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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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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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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