What links FOI, ICO decision notice FS50591795, audit, a class A drug, barristers and Liverpool City Council?
There is a form of direct accountability during the audit of local councils when for a short period each year local government electors can inspect information about that financial year such as invoices and contracts.
Here is a legal reference to that right (Audit Commission Act 1998, s.15) which has been a direct form of democratic accountability that in one form or another has been around since Victorian times.
It’s tied in to rights of local government electors to ask questions of the external auditor (which for Wirral Council is Grant Thornton), to make objections to the accounts, to request public interest reports. After all how can you do all that without seeing the information in the first place?
It’s a form of direct democratic accountability.
Unlike making a freedom of information request (time limit of 18.5 hours) there is strictly very little legal limits on what can be requested (well apart from on the insular peninsula at Wirral Council where they have a habit of deliberately shifting the goalposts and coming up with bizarre interpretations of legislation to suit themselves). Last year I made requests under this audit legislation to Wirral Council, Liverpool City Council, Merseyside Waste Disposal Authority, Merseytravel and the Merseyside Fire and Rescue Authority.
The Liverpool City Council request was connected to an earlier FOI request and there’s been a recent decision notice issued in that matter on the 1st February 2016 which hasn’t been published yet by ICO.
Ironically ICO seemed to have met a stumbling block with Liverpool City Council on that one as they asked me for the information that I’d been refused under FOI (happy to oblige). This implies Liverpool City Council weren’t being entirely cooperative with ICO.
I’ve been sent a paper copy of the decision notice through the post, but it’s not published on ICO’s website yet. The reference is FS50591795. It’s a mercifully short eight pages and requires both Liverpool City Council to issue a fresh response with 35 days of 1st February 2016 (or appeal to the Tribunal) and states that Liverpool City Council breached s.10(1) of the Freedom of Information Act 2000. If anybody wants me to I can scan a copy in and publish it here.
Basically LCC’s arguments are that I’m being unfair to barristers by requesting invoices they’ve submitted to LCC. Because as we all know, the purpose of a self proclaimed "socialist" Council like Liverpool City Council is to stick up for downtrodden, oppressed groups on the margins of society like barristers!
Let’s take the example of one barrister (pictured above on the left), a barrister I might point out who is not the subject of the invoices I requested, but who is in addition to being a barrister, a Labour Liverpool City Council councillor called Cllr Paul Brant. He resigned as a councillor in 2013 (although has since been re-elected) after receiving a police caution for possession of a class A drug. He was also the subject of a The Bar Tribunals & Adjudication Service disciplinary tribunal.
Below are the details.
Defendant Paul Brant (Lincoln’s Inn)
Type of hearing 3 Person Disciplinary Tribunal
Panel members Mr William Rhodri Davies QC (Chair)
Ms Pamela Mansell
Mr Mark West
Paul Brant engaged in conduct which was discreditable to a barrister contrary to paragraph 301(a)(i) of the Code of Conduct in that on a day between the 1st January 2013 and the 21st September 2013 he committed the criminal offence of being in possession of a controlled drug of class A contrary to The Misuse of Drugs Act 1971, for which offence on the 20th September 2013 he receive a simple caution."
It would be a conflict of interest for Cllr Paul Brant to do work for Liverpool City Council but according to his Chamber’s website he has been instructed to represent Wirral Council in the past (yes Wirral Leaks I can get trees into a story too!):
“Jayne Spencer v Wirral Metropolitan Borough Council (2008); LTL 1/10/2008 (Highway liability claim, tree root in Port Sunlight conservation area causing personal injury – whether breach of duty. Mr Brant appeared successfully at first instance and on appeal).”
This is an aside but I do remember one year during the audit, Wirral Council weren’t happy with me requesting the invoices for their legal invoices for these sorts of liability claims. “
However there should be some transparency as to who Liverpool City Council are paying! All Liverpool City Council councillors are responsible for budget matters including Cllr Paul Brant.
To give the example of Paul Brant above, it shows he works at Oriel Chambers and was subject to a disciplinary tribunal in September 2014 (the outcome of which is detailed above).
One of my other arguments to the regulator was that Liverpool City Council is under a legal obligation to publish the names of its suppliers for invoices over £500. In fact the guidance they’re required by law to follow specifically states that being self-employed (which is their argument surrounding barristers) doesn’t mean they can keep the suppliers’ name out of the public domain (but Liverpool City Council do).
However the above legislation (surrounding rights of inspection, objection etc) during the audit was scrapped by the government. You can’t use it any more to do this after the 2014/15 financial year.
Instead for 2015/16 financial year onwards it’s been completely watered down.
Previously (apart from information about its own staff) local councils during the audit had to get permission from their external auditor if they wanted to withhold from inspection in the category of "personal information" (which was very narrowly defined). This was a safeguard to prevent public bodies abusing their powers.
Bear in mind however that each time the public body contacts their external auditor it increases what they’re charged.
However this check and balance on misuses of power in local government was repealed (scrapped) by the last Coalition government (Conservative/Lib Dem).
Oh but there’s more!
There’s a rather infamous recent case (well infamous in those familiar with "citizen audit") where a local government elector called Shlomo Dowen requested (during this period each year during the audit) a waste management contract between Nottinghamshire County Council and Veolia ES Nottinghamshire Ltd.
However Veolia weren’t happy at all by this (in fact if you read through the judgements in both cases you’ll find that even if Mr. Dowen was given the contract they wanted restrictions on him sharing it with other people) and brought an appeal in the Court of Appeal ( EWCA Civ 1214,  PTSR 185,  UKHRR 1317,  Eu LR 172). Veolia claimed that allowing Mr. Dowen to inspect/receive a copy of the contract would infringe that companies’ human rights.
I quote from part of that judgement, “I am not entirely convinced that English common law has always regarded the preservation of confidential information as a fundamental human right”.
Rix LJ, Etherton LJ, Jackson LJ upheld the appeal however.
The irony of all that was that Shlomo Dowen already had access to the information as Veolia’s lawyers did not seek a stay following the earlier judgment.
Interestingly withholding information on grounds of commercial confidentiality, this is a quote from the legislation,
“(5) Information is protected on the grounds of commercial confidentiality if—
(a) its disclosure would prejudice commercial confidentiality, and
(b) there is no overriding public interest in favour of its disclosure.”
is subject to a public interest test.
However there are other changes on the horizon too. Previously the inspection period was 15 days (3 weeks assuming there are no holidays).
When that inspection period was published in a public notice in at least one newspaper in the area and on the public body’s website.
I only have until the end of the 2015/16 local government financial year to get up to speed on these changes as being the Editor here I’ll have to schedule time for responding to the public notices, arranging appointments to inspect, as well as spare capacity for dealing with the moaning of the public sector (example moan last year being, it’s been 7/8 years since someone did this!).
As Wirral Council was somewhat uncooperative last year over the size of my request (only responding to the 10% of it they didn’t deem to be particularly sensitive), I will be having internal discussions here on avenues that can be explored to either embarrass Wirral Council into legal compliance (by censure (not to say that always works) or take more formal action.
Weirdly some of the politician’s expenses that they refused me under the audit legislation and Cllr Adrian Jones refused to make an appointment for me to see, they released in response to a later FOI request.
Which just goes to show that if you ask for the same information three times from Wirral Council (audit rights, a politician, then FOI), you might finally get it! Obviously by the third time, it starts to get embarrassing and seems like they have something to hide. I really don’t like having to ask three times when once should be enough though!
Anyway what was going to be only a short article about local government, barristers, ICO, FOI and audit is now rather on the long side so I’ll draw this to a close and give you an opportunity to comment.
If you click on any of the buttons below, you’ll be doing me a favour by sharing this article with other people.
Frankly, after two years and ten months of arguing over this request I doubt (although this is just my opinion) that either Wirral Council will want to appeal the decision to the First-tier Tribunal (Information Rights). Although one can never quite tell with Wirral Council.
So the decision notice relates to minutes of a meeting of the Headteachers and Teachers Joint Consultative Committee, minutes of a meeting of the Members’ (Members’ means councillors) Training Steering Group and minutes of a meeting of the Members’ Equipment Steering Group.
All these committees met behind closed doors and had councillors appointed to them.
The information in the minutes of the meetings of the last two groups are about training of councillors, use of electronic equipment, developing the Council of the Future, spending, service delivery models and proposals for improvement and potential change.
Surjit Tour made the decisions that releasing this information would be "prejudicial to the effective conduct of public affairs". There’s a long bit of the decision notice that goes into ICO’s assessment of the public interest test. ICO disagrees with Surjit Tour with regards to two out of the three sets of minutes requested. ICO’s view is that the public interest test weighs in favour of disclosure of the minutes of the Members’ Training Steering Group and minutes of the meeting of the Members’ Equipment Steering Group.
They do however agree with Surjit Tour over the minutes of the Headteachers’ and Teacher’s Joint Consultative Committee, although I’ll point out I find their arguments over a "chilling effect" over what was said at a meeting three years ago rather strange!
Below I include a copy of the decision notice (above is a summary). Although it states I didn’t submit public interest arguments, I did in a document marked "reasons for appeal" (in fact I have an email from the case officer referring to it). However the reasons for appeal have seemingly either not been read or ignored by the person writing the decision notice.
The result of the decision notice is that Wirral Council (or I) can appeal the decision within 28 days of the decision notice to the First-tier Tribunal (Information Rights) or if the decision is accepted they have to respond by providing the minutes relating to the meetings of the Members’ Training Steering Group and of the Members’ Equipment Steering Group within 35 days.
1. The complaint concerns a request for the minutes of three separate committee meetings. Wirral Metropolitan Borough Council (‘the Council’) has refused to release this information. The Council says it is exempt under section 36 of the FOIA (prejudice to the effective conduct of public affairs) and that the public interest favours the information being withheld.
2. The Commissioner’s decision is that sections 36(2)(b)(i) and (ii) have been correctly applied to the requested information and that the public interest favours withholding some of the information (item 15). However he finds that the public interest favours releasing the remainder of the information.
3. The Commissioner requires the public authority to take the following step to ensure compliance with the legislation:
4. The public authority must take this step 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 pursuant to section 54 of the Act and may be dealt with as a contempt of court.
5. The request that is the subject of this notice has been subject to two previous decision notices – FS50509081 and FS50569254. Of relevance to this notice, FS50569254 found that the Council had incorrectly applied section 14(1) (vexatious request) to four parts of the 26 part request. The Commissioner ordered the Council to disclose this information or issue a fresh refusal notice.
Request and response
6. On 29 March 2013, as part of the wider request referred to above, the complainant had written to the Council and requested information in the following terms:
“Please could you provide minutes of the previous meetings of the following committees…
… 15. Headteachers and Teachers JCC
18. Members’ Training Steering Group
19. Members’ Equipment Steering Group
26. Safeguarding Reference Group…”
7. As a result of the Commissioner’s decision in FS50569254, the Council provided the complainant with a new response on 3 September 2015. It said that these four parts were exempt from disclosure under section 36(2)(b)(i) and (ii) and that the public interest favours withholding the information. It said part 26 of the request was also exempt under section 40 (personal data).
8. Given the history of this request, the Council did not undertake an internal review and the matter was referred to the Commissioner. However, as part of the Commissioner’s investigation, the Council did review its response and reconsidered its response with regard to part 26 of the request. It withdrew its reliance on section 36 and section 40 and disclosed this particular information to the complainant on 11 January 2016.
Scope of the case
9. The complainant had contacted the Commissioner on 7 September 2015 to complain about the way the four parts of his original request for information had been handled.
10. The Council has now disclosed part 26 of the requested information to the complainant. The Commissioner has therefore focussed his investigation on the Council’s application of the exemption at section 36 to parts 15, 18 and 19 of the request and its public interest arguments.
Reasons for decision
Section 36 – prejudice to effective conduct of public affairs
11. Section 36(2)(b)(i) and (ii) of the FOIA says that information that is held by a public authority is exempt if, in the reasonable opinion of a qualified person, disclosing it would, or would be likely to, inhibit the free and frank provision of advice, and the free and frank exchange of views for the purposes of deliberation.
12. Section 36 differs from all other prejudice exemptions in that the judgement about prejudice must be made by the legally authorised, qualified person for that public authority. The qualified person’s opinion must also be a “reasonable” opinion, and the Commissioner may decide that the section 36 exemption has not been properly applied if he finds that the opinion given is not reasonable.
13. Other than for information held by Parliament, section 36 is a qualified exemption. This means that even if the qualified person considers that disclosure would cause harm, or would be likely to cause harm, the public interest must still be considered.
14. In determining whether the Council correctly applied the exemption, the Commissioner is required to consider the qualified person’s opinion as well as the reasoning that informed the opinion. Therefore in order to establish that the exemption has been applied correctly the Commissioner must:
ascertain who was the qualified person or persons
establish that an opinion was given by the qualified person
ascertain when the opinion was given; and
consider whether the opinion was reasonable.
15. The information in question concerns the minutes of a Head Teachers and Teachers Joint Consultative Committee (JCC), action minutes of a Members’ Training Steering Group and actions from a Members’ Equipment Steering Group.
16. The Council has explained to the Commissioner that the qualified person in this case is the Council’s Head of Legal and Member Services who, under section 36(5)(o)(m), is authorised as the Monitoring Officer.
17. The Council showed the information in question to the qualified person on 27 October 2014, with an opinion on it sought under section 36(2)(b)(i) and 36(2)(b)(ii), as explained at paragraph 11. The Council says the qualified person met and discussed the information on several occasions with one of his solicitors and the Records and Information Manager. The opinion was given on 31 October 2014. The Council explained to the Commissioner that the request for information was originally submitted in March 2013 and confirmed that the qualified person’s opinion was sought in October 2014.
18. The qualified person upheld the view submitted to him that disclosing the information held in items 15, 18 and 19 would inhibit the free and frank provision of advice and the free and frank exchange of views for the purposes of deliberation.
19. With regard to item 15 — the Head Teachers and Teachers JCC – the qualified person considers that the information contained within these minutes concerns important matters which require consideration and deliberation. These matters include: comprehensive and fundamental reviews associated with the education sector; the current structure and service delivery models of education; budgetary options and proposals for improvement and potential change. The qualified person says that deliberating all these matters needs a “safe space” and, in his opinion, disclosing the requested information would be likely to have a “chilling effect”. This would inhibit the free and frank provision of advice and exchange of views between Members, officers and other representatives.
20. The qualified person additionally considers that any disclosure would be likely to undermine the ability of this group, and those advising this group, to express themselves in a frank and open manner. This would then lead to poorer decision making. The qualified person considers that it is crucial that this group is able to exchange views in an open and frank manner for the reasons set out above.
21. With regard to items 18 and 19 — the Members’ Training Steering Group action minutes and actions from Members’ Equipment Steering Group — the qualified person says that the information contained within these
sets of minutes relates to important matters affecting elected Members, which requires consideration and deliberation. Matters debated include: elected Members’ training; use of electronic equipment; developing the Council of the Future; spending; service delivery models and proposals for improvement and potential change.
22. The qualified person says that this level of debate also needs a “safe space” to effectively engage the participants. In his opinion disclosing this information would be likely to have a “chilling effect” that would inhibit the free and frank provision of advice or exchange of views between elected Members and officers. Furthermore, disclosure is likely to undermine the ability of these steering groups’, and those advising these groups, to express themselves in a free and frank manner. This would then lead to poorer decision making.
23. The Commissioner first notes that the Trust has sought the opinion of its Monitoring Officer. He is satisfied that the Monitoring Officer is a suitably qualified person. This is because the Monitoring Officer post within a local authority has the specific duty to ensure that the council, its officers and its elected members maintain the highest standard of conduct in all they do. It is one of three posts that local authorities have a legal duty to have, the other two being the Chief Executive and
the Director of Finance.
24. In order to determine whether the exemption is engaged the Commissioner must then go on to decide whether the qualified person’s opinion in this case is reasonable. This involves considering:
Whether the prejudice claimed relates to the specific subsection of section 36(2) on which the Council is relying
The nature of the information and the timing of the request; and
The qualified person’s knowledge or involvement in the issue.
25. The Commissioner has also issued guidance on section 36 of the FOIA. With regard to what can be considered a ‘reasonable opinion’ it says the following:
“The most relevant deﬁnition of ‘reasonable’ in the Shorter Oxford English Dictionary is ‘In accordance with reason; not irrational or absurd’. If the opinion is in accordance with reason and not irrational or absurd — in short, if it is an opinion that a reasonable person could hold — then it is reasonable.”
26. It is important to note that when considering whether the exemption is engaged, the Commissioner is making a decision not on whether he agrees with the opinion of the qualified person, but whether it was reasonable for him or her to reach that opinion. The test of
reasonableness is not meant to be a high hurdle and if the Commissioner accepts that the opinion is one that a reasonable person could hold he must find that the exemption is engaged.
27. The Council is relying on subsections (b)(i) and b(ii) of section 36(2), namely that disclosing the withheld information would, or would be likely to inhibit the free and frank provision of advice, and the free and frank exchange of views for the purposes of deliberation. The qualified person in this case has said that prejudice, namely a “chilling effect” on the provision of advice and exchange of views that would lead to poorer decision making, would be likely to occur if the information were to be disclosed (rather than would occur).
28. The Commissioner accepts that it is important that the Council’s meetings are conducted openly with participants able to contribute candidly and to discuss issues freely. The Council and the public can then be confident that decisions made at these meetings are likely to be robust. He therefore accepts that the prejudice the Council is claiming does relate to section 36(2)(b)(i) and (ii).
29. The Commissioner has referred to the information requested at parts 15, 18 and 19 of the wider request. The information concerns meetings that took place in February and March 2013, shortly before the complainant submitted his request. In his view, the meetings are unconnected to each other or to one wider matter.
30. The Commissioner notes that the qualified person has had several discussions with a solicitor and the Records and Information Manager about the matter. He considers that, although the qualified person did not participate in the meetings in question, the qualified person would understand the nature of the meetings and have a good knowledge of the circumstances surrounding the request.
31. Having undertaken the above review of the qualified person’s opinion, the Commissioner is satisfied that, in the circumstances, it is a reasonable opinion ie it is not irrational or absurd. Therefore, the exemption at section 36(2)(b)(i) and (ii) is engaged with regard to items 15, 18 and 19.
Public interest test
32. In most cases, even when the qualified person has given their opinion that section 36(2)(b) is engaged, the public authority must still carry out a public interest test. The qualified person’s opinion will affect the weight of the argument for withholding the information. If the qualified person has decided that disclosure would prejudice, this will carry a greater weight than if they said
disclosure would be likely to prejudice.
33. The qualified person’s opinion brings weight to the arguments for withholding the information; the significance of this weight will vary from case to case. When considering a complaint regarding section 36, if the Commissioner finds that the opinion was reasonable, he will consider the weight of that opinion in the public interest test. This means that he accepts that a reasonable opinion has been expressed that prejudice would, or would be likely to occur, but he will go on to consider the severity, extent and frequency of that prejudice in forming his own assessment of whether the public interest test dictates disclosure.
34. In his guidance on section 36, the Commissioner says that it should always be possible for the public authority to review the public interest arguments. The Commissioner gave the Council the opportunity to do this during the course of his investigation. The Council confirmed on 14 January 2016 that it continues to rely on its arguments from October 2014.
Public interest arguments in favour of disclosure
35. With regard to item 15, the qualified person says that disclosing these minutes would give the public insight into the processes involved within the Council for decision making on important issues of the day. Disclosing these minutes would also demonstrate transparency with regard to internal processes and with regard to the exchange of views and advice.
36. With regard to items 18 and 19, the qualified person says that disclosure of these action minutes would give an insight into how the Council analyses and reviews information with a view to shaping and
developing for the future. These action minutes would also allow the public to see proposals that the Council is considering.
37. The complainant did not submit any public interest arguments.
Public interest arguments in favour of maintaining the exemption
38. The qualified person considers that the public interest favours maintaining the exemption with respect to these three items of information because disclosing the information would restrict the free and frank exchange of views, would inhibit the giving of advice and guidance and would potentially have a detrimental effect on the work of these groups and those taking part in their discussions. He says that the Council relies on the ability to have a “safe space” to enable it to
make the most appropriate decisions for elected Members, officers and the people of Wirral.
Balance of the public interest
39. The Commissioner first of all notes that the qualified person has said that releasing the information would be likely to inhibit free and frank advice and exchange of views. This potentially brings less weight to the argument for withholding the information than would inhibit.
40. In his published guidance on section 36, the Commissioner notes at paragraph 45 that 36(2)(b)(i) and (ii) are about the processes that may be inhibited, rather than what is in the information. The issue is whether disclosure would inhibit the processes of providing advice or exchanging views. In order to engage the exemption, the information requested does not necessarily have to contain views and advice that are in themselves notably free and frank.
41. On the other hand, if the information only consists of relatively neutral statements, then it may not be reasonable to think that its disclosure could inhibit the provision of advice or the exchange of views.
42. Paragraph 46 of the Commissioner’s guidance discusses the terminology used in the exemption, as follows:
‘Inhibit’ means to restrain, decrease or suppress the freedom with which opinions or options are expressed.
Examples of ‘advice’ include recommendations made by more junior staff to more senior staff, professional advice tendered by professionally qualiﬁed employees, advice received from external sources, or advice supplied to external sources. However, an exchange of data or purely factual information would not in itself constitute the provision of advice or, for that matter, the exchange of views.
The ‘exchange of views’ must be as part of a process of deliberation.
‘Deliberation’ refers to the public authority’s evaluation of competing arguments or considerations in order to make a decision.
43. As in this case, arguments under section 36(2)(b)(i) and (ii) are usually based on the concept of a ‘chilling effect’. The chilling effect argument is that disclosure of discussions would inhibit free and frank discussions in the future, and that the loss of frankness and candour would damage
the quality of advice and deliberation and lead to poorer decision making.
44. Public officials are expected to be impartial and robust when giving advice, and not easily deterred from expressing their views by the possibility of future disclosure. It is also possible that the threat of future disclosure could actually lead to better quality advice. Nonetheless, chilling effect arguments cannot be dismissed out of hand.
45. Chilling effect arguments operate at various levels. If the issue in question is still live, arguments about a chilling effect on those ongoing discussions are likely to be most convincing. Arguments about the effect on closely related live issues may also be relevant. However, once the decision in question is finalised, chilling effect arguments become more and more speculative as time passes. It will be more difficult to make reasonable arguments about a generalised chilling effect on all future discussions.
46. Whether it is reasonable to think that a chilling effect would occur will depend on the circumstances of each case, including the timing of the request, whether the issue is still live, and the actual content and sensitivity of the information in question.
47. The Commissioner has reviewed the information in question. Items 15 and 19 are minutes/actions from meetings held February 2013, item 18 is the action minutes from a meeting that was held in March 2013. At the time of the complainant’s request therefore, the meetings in question were very recent and the subjects under discussion would still have been live at the time of the request.
48. Item 15 is the minutes of the Headteachers’ and Teachers’ Joint Consultative Committee meeting on 28 February 2013 and is described as such ie as ‘Minutes’. As such they summarise the discussion that occurred in the meeting. The content of the minutes is as described at paragraph 19. They include summaries of participants’ exchange of views and their evaluation of particular proposals in order to reach a decision. The Commissioner considers that this Committee would have needed a safe space in which to freely and frankly deliberate on important and potentially sensitive matters such as fundamental reviews associated with the education sector; the current structure and service delivery models of education; budgetary options and proposals for improvement and potential change.
49. Given the closeness between the meeting in February 2013 and the original request for its minutes in March 2013, the Commissioner is persuaded that releasing these minutes may have been likely to have a chilling effect on subsequent meetings of this Committee. He agrees
with the Council that the public interest favours this particular information being withheld in order to protect the Committee’s ability to make decisions based on full and frank discussions.
50. The Commissioner has next considered items 18 and 19. Item 18 — the Member Steering Group – is described as ‘Action Minutes’. For the most part, only the agreed actions that resulted from the discussions are noted, with a brief summary of one or two points. Item 19 — the Members’ Equipment Steering Group’ — is described as ‘Actions’ and only agreed actions that resulted from the discussions are noted.
51. The Commissioner recognises that the meetings took place shortly before the request was submitted and that the matters under discussion were still live at that time, to some degree. However, he does not consider that the matters under discussion — elected Members’ training and equipment needs — is of sufficient sensitivity that disclosing the information would have a chilling effect on subsequent meetings of these two groups, and inhibit the process of providing advice or exchanging views. In addition, the overwhelming majority of the information held in these two documents is agreed actions, very briefly summarised, and not summaries of broader discussion and deliberation on these two matters. The Council has said that releasing this information would be likely to inhibit free and frank advice and exchange of views but its evidence for this is somewhat generic and consequently not strong. As a result, the Commissioner considers that the public interest favours releasing items 18 and 19 in the interests of transparency.
Right of appeal
52. Either party has the right to appeal against this decision notice to the First-tier Tribunal (Information Rights). Information about the appeals process may be obtained from:
What would meetings be like at johnbrace.com if it was part of the public sector?
What would meetings be like at johnbrace.com if it was part of the public sector?
The below is meant as satire, but it’s based in part on true life events.
Editor John Brace: Oh boy, as if I don’t spend enough of my life in meetings already!!!
Shadowy powers-that-be: You called the meeting, so don’t be flippant with us. Wait a bit, there’s not enough people here to be quorate, technical is running late.
Technical: Sorry for being late, not only was the bus I had to get here running late (as we don’t get expenses for a car any more), but I had the sign the visitors book as I don’t work in this building. Then I had to be issued with a visitor’s pass (the reception desk had run out and told me I’m not allowed to be in the building without wearing one).
Then I had to have my bags searched (apparently this is a "secure building"), explain the meaning of every electronic device on me (which took at least fifteen minutes), then I had to wait an age for someone to escort me down twenty feet of corridor (even though I know where I’m going and I’ve been here a hundred times already). To add insult to injury the magnetic locks on the door to this room have failed and don’t work properly (because the software has crashed)
so you need to have the strength of Samson to prise open the door! Sadly as we’re the overworked public sector we don’t have the staff resource available to fix it or even the time to send a message to whoever is responsible to do it.
Editor John Brace: As yes but let’s get down to the agenda, the blog is nearly full. By the way why is the ceiling dripping water?
Shadowy powers-that-be: Oh the rebuild and management of the building got outsourced to the private sector. The contractors after they got the contract said the subcontractors couldn’t do it for the money quoted so the contract was changed at their request.
So in the end we just caved in to substandard work and now the air conditioning unit gives us a new feature the workers have nicknamed "indoor rain". All rather like that TV show Jonathan Strange & Mr Norrell except it doesn’t require a magic spell? It’s either that or turn the air conditioning off (which makes it hard to breathe).
Editor John Brace: Well as long as it doesn’t drip on me, it’s make my writing smudge in my notebook but someone will have to get a bucket!
Shadowy powers-that-be (changing seats in an attempt to avoid getting wet from the drips): OK, (by a subtle hand gesture sends an underling to find a bucket) full, what do you mean full???
Editor John Brace: Full as in there’s a 3 gigabyte limit on it and as it started in October 2010, 74% of the space is already used. There are things that haven’t been published because of lack of available space.
Editor John Brace: Not considered to be good practice, anyway that’s pretty full too.
Shadowy powers-that-be: We’ll refer to technical section then for options.
Technical: Well your options are you can either upgrade to ( this information has been redacted because of s.43 of the Freedom of Information Act 2000 (commercial sensitivity)) or switch to self-hosting. The former costs ( this information has been redacted because of s.43 of the Freedom of Information Act 2000 (commercial sensitivity)) and gives another 10 gigabytes of space. If you wanted it self-hosted it would depend on the provider how much space you got but might be more than that.
Editor John Brace: I’d prefer the flexibility of self-hosted.
Advertising: So would we! We could sell advertising then and make more money!!!
Editor John Brace: It’s not supposed to be about the money!
Advertising: Pah, you artists, what do you know about making money, we have families to feed you know!
Human Resources: But is John trained for this, what if it all went wrong?
Editor John Brace: I have fourteen years of experience running websites and see HR treats me like I’m a 16 year old GCSE student here on work experience!
If you insist, add it as a risk to the risk register if you’re going to be like that! 😛 I really would like to have some time today to actually write something on the blog. Is there anything else?
Shadowy powers-that-be: Oh yes and by the way John we’ve had to freeze your pay, but the Chief Executive gets an automatic £5,000 pay rise each year.
Editor John Brace: What? Did I miss something?
Shadowy powers-that-be: Oh you don’t get consulted on meetings that agree such things as it’s an HR (Human Resources) matter.
Editor John Brace: An HR matter? mutters to the trade union rep sitting next to him
Trade Union Rep: We fully agree with management that people should be paid appropriately!
Editor John Brace: Appropriately!!!? The Chief Executive’s on more than the Prime Minister (and rising)!
Shadowy powers-that-be: Well when he leaves, feel free to apply for his job if you think you’re up to it.
Editor John Brace: Let’s just go to the last agenda item, complaints about comments on the blog.
Trade Union Rep: How dare anyone criticise the hard-working public sector workers!!!?
Editor John Brace: We’re supposed to be here to serve the public, not to come across as a parody of militant 1970s trade unions.
Trade Union Rep: OK, but our workers are under pressure. We could even go on strike if things don’t improve!
Editor John Brace: There are contingency plans in place these days to ensure service continuity even if a strike happens.
Trade Union Rep: Well you certainly read the management memos don’t you!? What about supporting your hard working public sector trade unions? Morale isn’t good and as strikes don’t seem to work any more, we might just try work to rule.
Editor John Brace: I thought (as demonstrated from many, many stories I’ve written over the years) that the public sector had consistently shown over many years it didn’t know what the rules, regulations and laws it operated under were, so instead you just "make it up as you go along".
So how if you don’t know the rules can you "work to rule"?
Trade Union Rep: It’s negative talk like that, attacking the professionalism of our workers which is why you have such a poor reputation John! It’s our job to criticise and stand up for the workers, not yours! I mean seriously, our workers can’t know everything! That’s obviously a training issue and the fault therefore lies with an under resourced human resources department and the employer.
Human Resources: Don’t blame us, we just do what we’re told!
Shadowy powers-that-be: John does have a point though and you’ve got to admit although annoying at times he does try to be thorough and fair. This country is supposed to be a democracy so he’s perfectly entitled to do things as he sees fit. However back to complaints.
Editor John Brace: The number of complaints about comments on the blog has fallen.
Trade Union Rep: See there you go again John, showing off that you studied Latin at school and using phrases like sub judice. Why can’t you just use ordinary phrases that everybody knows round here like "I’m off down to the pub for a drink, does anyone want to come?"
Editor John Brace: Because as you know, I don’t drink alcohol like some people do round here.
At the word alcohol, a politician enters and the room falls deathly silent.
Councillor (name redacted because of s.40 of the Freedom of Information Act 2000 (personal information)): Hi everybody, just popping in to say what a great job you all do. So what are you all discussing?
Shadowy powers-that-be: We were just discussing the blog and the Youtube channel, which is two of the ways we tell the public about the decisions that councillors like yourself make.
Councillor (name redacted because of s.40 of the Freedom of Information Act 2000 (personal information)): Ahh yes, John Brace and his TV-thingummy. Marvellous, I really don’t understand how it works myself but the blog and the TV-thingummy is really marvellous at informing the party members what we’re doing. Keeps us on our toes!
Editor John Brace: Now you know why I have massive job security!!!!
Shadowy powers-that-be: You’re seem to be implying that if some politicians weren’t highly Machiavellian, manipulative people so interested in taking the credit for other people’s work, blaming a scapegoat (instead of taking responsibility) when things go wrong, overly interested in criticising the other political parties and their politicians, busy claiming expenses, pretending they have powers that they don’t legally have and instead did things in the public interest that you’d be out of a job?
Editor John Brace: In a nutshell yes, but some politicians are far better than others.
Shadowy powers-that-be: Oh boy, that really sounds like pot calling the kettle black as according to your file, you do realise you were a politician (or holder of public office) once don’t you?
Editor John Brace: That’s exactly why I know what they’re like! I was only for two one year terms of office representing ~17,000 students at a university. I can’t say I was particularly good at it! While I was there someone had the call to refer to me as a "bureaucrat". I mean seriously a "bureaucrat", just because I insisted on a completed health and safety risk assessment!
It was student politics at university when I was in my mid-20s, but there are times I miss teaching the post graduate students and spending long hours in the university library. Those were simpler, happier times in academia. Politics is very different.
Perhaps that’s partly shaped me into the person I am today though as I was trained to follow the Nolan principles of selflessness, integrity, objectivity, accountability, openness, honesty and leadership.
Shadowy powers-that-be: We run training courses for the politicians here on the same principles, but as it’s not mandatory (it’s very hard to force a politician to do anything anyway) so not many turn up.
Editor John Brace: Hence my comment about job security. I have massive job security. I’ll never run out of public sector problems to write about!
Shadowy powers-that-be: Of course from the public sector’s perspective at times you are the problem John! You do realise what a "drain on resources" you are?
Editor John Brace: Imagine if I didn’t do what I did then! Imagine how expensive it would be then! Mere trifles of mistakes would be missed, not corrected and before you know it you’re ending up paying a six-figure sum to a consultant to write a report to tell everyone what they know already! Transparency always has a price yes, but good decision-making is priceless.
Getting the decision right the first time saves thousands (or even tens or hundreds of thousands) of pounds later having to correct it or the financial costs of dealing with the consequences of bad decisions (such as planning appeals, judicial review etc).
Shadowy powers-that-be: But the politicians really hate it when you point out that there are multiple secret expense systems running (that a C-level decision has been made to deliberately not tell the public about) that to be honest even you shouldn’t even know about! I mean that sort of information is supposed to be restricted to far above your pay grade!
Some of the politicians on the grapevine got told that you’re not a proper journalist so their let their guard down and nearly choked on their cornflakes when you started publishing their expenses!
Editor John Brace: I’m unusual yes. Unlike the newspapers, I’ve specialised in local political reporting with a bit of court reporting too. The term is "new media journalist", although you can also use blogger (even though I’m not too keen on the term). As I also run the Youtube channel that would make me "broadcast journalist" too.
No I think what the politicians have got used to are newspaper journalists and rarely local radio or TV who don’t get be wrong do a good job but in the main are under too much time pressure to spend months of investigative journalism on a story.
Newspaper journalists turn up to public meetings when they’re invited and write about one particular item that they’re asked to. Then it appears in the newspaper and also on the newspaper’s website. That to me sounds more like proactive public relations than holding the powers that be to account.
Investigative journalism seems to be (sadly) a dying art in this country and one investigative journalist is probably enough to give many politicians nightmares.
Anyway MP’s expenses are published so why not councillors too? Why shouldn’t the public be able to see what they’re claiming in allowances and expenses (after all it’s the public money that they’re spending) and why do public bodies break the law and deliberately understate on their website the annual amounts for councillors (in breach of the regulations)?
Shadowy powers-that-be: Yes, I have no doubt that it was a story in the public interest. But you brought up the discrepancies between the figures for councillor’s allowances and expenses in the draft statement of accounts compared to what was being stated!
You exposed multiple secret expenses system! Councillor Niblock has been seen getting a lift to a meeting rather than a taxi! Your journalism is leading to changes in politicians’ behaviour and that is dangerous!
Editor John Brace: Well isn’t that good as it saves the public sector money?
Shadowy powers-that-be: Good for your reputation as a journalist maybe, but we think you’re being too militant about it, you’re driving up public sector audit costs and not being diplomatic towards the politicians. I mean making an objection about the accounts to the auditor because they don’t add up! I mean seriously!? When have public sector accounts ever added up?
Editor John Brace: Well they should add up!
Shadowy powers-that-be: In an ideal world yes, but management made a decision that to a proper job with the accounts would be an "unreasonable use of scarce resources". Politicians made it clear to us to cut the back office jobs like payroll (but not councillor expenses we’ve protected that spending), accounting and legal, so that’s the reason why!
Editor John Brace: So you’re saying, people above my pay grade deliberately turned a blind eye to multiple secret expenses system for paying expenses to politicians that was deliberately understating the true amounts that the public wasn’t to know about? This was all done to "protect frontline staff"?
Shadowy powers-that-be: Yes. On the instructions of the politicians.
Editor John Brace:: So why wasn’t I told?
Shadowy powers-that-be: Because it was supposed to be a secret.
Shadowy powers-that-be: Well there you go again, doesn’t your legal department ever just take the a day off!? You must have more legal people on your payroll than we do!
Yes that’s why it was meant to be kept a secret. It was fine as it was because nobody outside knew about it. Until you opened your great big mouth and told the public! Are you a manager or a journalist?
Editor John Brace: Both.
Shadowy powers-that-be: So who’s your line manager?
Editor John Brace: I don’t have one.
Shadowy powers-that-be: Well if you had a line manager, you’d realise that the politicians answer to the people and senior management answer to the politicians. Senior management do not like being made redundant (at the instructions of a politician)! Apparently you don’t answer to anybody!
Editor John Brace: I prefer it that way, concepts like editorial independence and freedom of the press may sound old-fashioned but it’s better that way. I’m answerable to my wife!
Shadowy powers-that-be: We’re all answerable to our wives but that’s not the point!
Editor John Brace: Anyway, this meeting has gone on far too long. It’s time I got back to writing!
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However parts 15, 18, 19 and 26 of the request were refused by Wirral Council again.
All those four parts of the request have been withheld because Wirral Council decides that section 36 (prejudice to effective conduct of public affairs) is engaged. The minutes of the Safeguarding Reference Group (part 26) have an additional reason for refusal because of section 40 (personal information).
I of course plan to appeal this latest refusal to ICO again (which probably won’t come as a surprise to anyone). Essentially however the problem I face to do with this request (which may be familiar to those who make FOI requests and have more experience than I do).
Public body decides on a reason to refuse a FOI request initially and at internal review (this stage could take up to 60 days). ICO disagree with the reason and issue a decision notice requiring the public body not to use that reason for refusing that request and to either provide the information or another reason.
So the public body comes up with another reason. That reason is challenged at internal review (again adding another 60 days). That reason is then appealed to ICO who disagree with the reason and ICO issue another decision notice.
The public body picks another reason to refuse the request and eventually it becomes a merry-go-round. The public body clearly really doesn’t want to give up the information, yet ICO is giving the public body a loophole each time a decision notice is issued by giving them a chance to pick another reason.
ICO requires Wirral Council to supply internal audit report within 35 days
ICO requires Wirral Council to supply internal audit report within 35 days
The Information Commissioner’s Office (which I will refer to as ICO) have issued a decision notice about a Freedom of Information Act request made by Nigel Hobro to Wirral Council. The unique number for this decision notice is FS50559883. It’s not yet on ICO’s website but should be in the near future. ED: Updated 04/09/2015 I looked on ICO’s website and it has been published since this article was written and decision notice FS50559883 can be viewed on ICO’s website.
The Freedom of Information Act request is for an “incomplete internal audit investigation report” and was originally made on the 20th August 2014.
Interestingly the Information Commissioner’s Office agreed with Wirral Council that applying section 36(2)(c) was reasonable but disagreed with the public interest test element.
ICO requires Wirral Council to take the action below within 35 calendar days of the date of the decision notice dated the 24th August 2015. This is assuming that Wirral Council do not appeal the decision:
"Disclose the withheld information with redactions made under section 40(2) for the names of individuals within the report"
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