Tag: FS50596346

What was the First-tier Tribunal decision (EA/2016/0033) on whether Wirral Council should have withheld some of the minutes of the Headteachers’ and Teachers’ Joint Consultative Committee meeting held on the 29th March 2013 in response to a Freedom of Information request?

What was the First-tier Tribunal decision (EA/2016/0033) on whether Wirral Council should have withheld some of the minutes of the Headteachers’ and Teachers’ Joint Consultative Committee meeting held on the 29th March 2013 in response to a Freedom of Information request?

What was the First-tier Tribunal decision (EA/2016/0033) on whether Wirral Council should have withheld some of the minutes of the Headteachers’ and Teachers’ Joint Consultative Committee meeting held on the 29th March 2013 in response to a Freedom of Information request?

                            

Liverpool Civil & Family Court, Vernon Street, Liverpool, L2 2BX (the venue for First-Tier Tribunal case EA#47;2016#47;0033)
Tribunal Room 5, 3rd Floor, Liverpool Civil & Family Court, Vernon Street, Liverpool, L2 2BX (the venue for First-Tier Tribunal case EA⁄2016⁄0033 held as a whole day hearing on the 23rd June 2016)

I will start by making a declaration of interest as I was the Appellant in this case heard in June 2016 over in Liverpool.

I finally received a copy of the First-tier Tribunal’s decision in the case involving Wirral Council (EA/2016/0033).

Part of it is dated the 14th July 2016, but for some reason it’s taken nearly two months to send out (presumably because of the summer holidays).

I’ve linked from the decision to the original ICO decision notice FS50596346 published on ICO’s website as it makes more sense in reading both the decision in the First-tier Tribunal case and the ICO decision notice that it’s an appeal from at the same time. I’ve also linked to the edited version of the minutes released by Wirral Council around 3 years after the FOI request was first made (these minutes have been previously published on this blog).

I’ve included in this version the extra line, “On the subject of Acre Lane, David Armstrong is leading an assets review, which includes identifying a new location for the services currently provided at Acre Lane.” which was disclosed during the hearing itself and was part of the redacted part of the minutes.

At the time of writing this decision is not yet published on the First-tier Tribunal’s website but should be in the near future. There may be some minor formatting changes between the version below and the printed version (due to the differences between HTML and the printed page) although the text remains the same.

Missing from the version below is the Royal Coat of Arms on the first page (which I don’t have permission to reproduce).

The below decision (and reasons for it) were received from the First-tier Tribunal by email as I was an Appellant in the case. The other parties were the Information Commissioner’s Office (ICO) (First Respondent) and Wirral Metropolitan Borough Council (2nd Respondent).

ON APPEAL FROM:
The Information Commissioner’s Decision Notice No:
FS50596346

Dated: 25th. January, 2016

Appeal No. EA/2016/0033

Appellant:                 John Michael Brace (“JMB”)
First Respondent:     The Information Commissioner (“the ICO”)
Second Respondent: Wirral Metropolitan Borough Council (“WMBC”)

Before

David Farrer Q.C.

Judge

and

Michael Hake
and
Malcolm Clarke

Tribunal Members

Date of Decision: 7th. Sept, 2016

The appellant appeared in person
The ICO did not attend but made written submissions
Robin Hopkins appeared on behalf of WMBC

Subject matter:

FOIA S. 36(1)(b) and 36(2)(b)(i) and (ii)

Whether the public interest in withholding the requested information outweighed the public interest in its disclosure.

DECISION OF THE FIRST-TIER TRIBUNAL

All parties having agreed that the exemption is engaged, the Tribunal finds that the public interest in withholding such of the requested information as remained in dispute at the hearing outweighs the public interest in its disclosure.

The appeal is therefore dismissed.

Dated this 14th. day of July, 2016
David Farrer Q.C.
Judge [Signed on original]

Relevant Statutory Provisions

FOIA  S.36(1) This section applies to –
 
 
. . . . . .
 
(b) information which is held by (a local authority)
 
 
(2) Information to which this section applies is exempt information if, in the reasonable opinion of a qualified person, disclosure of the information under this Act –
 
. . . . . .
 
(b) Would, or would be likely to, inhibit
 
(i) the free and frank provision of advice, or
(ii) the free and frank exchange of views for the purpose of deliberation . . . . .
 

Abbreviations

In addition to those indicated above, the following abbreviations are used in this ruling –

The DN           The Decision Notice of the ICO.

The EIR          The Environmental Information Regulations 2004

The JCC          The Headteachers and Teachers Joint Consultative Committee.

REASONS FOR DECISION

The Background

  1. WMBC is a Metropolitan Borough Council responsible for the education provided by a large number of primary and secondary schools. Like many other local authorities, it is permanently involved in inevitably controversial debates and decisions on educational issues, which arouse the concerns of elected members, teachers and head teachers, parents and the wider general public.

  2. Elected members exercise the extensive powers conferred on public authorities such as WMBC in the field of local education. Public consultation with the different interest groups identified in §1 is, however, essential to the successful functioning of any education authority. For that purpose, WMBC holds a Schools Forum at which the views of all those groups can be aired publicly. It also convenes, once per school term, the JCC, at which elected members discuss with representatives of head teachers’ and teachers’, trades unions matters of current concern. WMBC officers attend. The JCC sits in private and its minutes are circulated only to JCC members.

    3. The request

  3. JMB is a local resident and elector with a keen interest in the governance and the efficient running of WMBC which he pursues using the Hash tag “Scarlet Pimpernel”. On 29th. March, 2013 he issued a request to WMBC for the minutes of previous meetings of twenty – six panels and committees, including “15. Headteachers and Teachers JCC”. It was refused, first by reference to FOIA s.12 (cost of compliance exceeding appropriate limit) and later s.14 (vexatious requests), varied to EIR 12(4)(b).

  4. The ICO’s decision, dated 8th. September, 2014, so far as material to this appeal, was that these exemptions or exceptions could not be relied on and that WMBC must either provide the requested information or issue a response which did not rely on the rejected grounds for refusal.

  5. As regards items 15, 18, 19 and 26, WMBC again refused in a response dated 3rd. September, 2015, citing, as to 15, 18 and 19, the exemption enacted in s.36(2)(b)(i) and (ii). The qualified person whose opinion was obtained was Mr. Surjit Tour, WMBC’s principal legal officer and Monitoring Officer, who was consulted as to 15, 18 and 19 on a number of occasions during August and September, 2014 and whose opinion is dated 31st. October, 2014. The details of that process are immaterial, since JMB now accepts that s.36(2)(b) is engaged.

  6. Section 36 provides a qualified exemption, so that, where it is engaged, the question to be determined is whether the public interest in withholding the information is shown to be greater than the public interest in disclosure.

    7. The DN

  7. Item 26 was disclosed during the ICO’s investigation. He ordered disclosure of items 18 and 19. Disagreements as to the redaction of names on those documents were very sensibly resolved before the hearing of this appeal. As to item 15, the minutes of a JCC meeting on 13th. February, 2013, the ICO upheld WMBC’s reliance on s.36(2)(b) and ruled that the public interest favoured maintaining that exemption. JMB appealed to the Tribunal.

    8. The Appeal

  8. Whilst WMBC’s assessment of these requests may have been initially flawed, Mr. Tour conducted a review of the public interest resulting in disclosure to JMB, on 19th. May, 2016, of an edited version of the relevant JCC minutes of the meeting on 28th. February, 2013, which was just a month before the request. Those minutes were still in draft form at the date of the request. There was no evidence that their final substance differed from the draft in any material respect. Such disclosure was made without prejudice to the contention that a correct view of the balance of public interests had been taken. Disclosure went further at the hearing when the subject matter of the excised portions of the minutes was revealed.

  9. The welcome result of these developments is that the scope of this appeal was greatly narrowed. The Tribunal is concerned with the public interest in withholding or disclosing identified passages from a single set of minutes, whilst having regard to the broader issue whether there are general arguments of principle for either course.

    10. The evidence

  10. Mr. Tour and Mr. Andrew Roberts, a senior financial officer and representative of the Children and Young Persons Department on the JCC gave evidence on behalf of WMBC.

  11. Mr. Tour stated that WMBC’s principal concern was the inhibition of full and frank discussion in the JCC (s.36(2)(b)(ii)). The topics discussed were generally major contentious strategic educational issues on which members of the JCC, approaching them from very different positions, held strong diverging views. It was essential that all concerned, whether elected members or union representatives, should be assured of confidentiality. They participated with that expectation. The principal function of the JCC was to inform WMBC of current concerns among teachers and within their unions. It valued the blunt candour of many contributions, which was not replicated in the Schools Forum, where all participants knew that their words would or might be reported. The disputed extracts from the minutes in question contained robust and candid expressions of opinion, which might not emerge from a meeting known to be on the public record. Council members also expressed vigorous political opinions in the JCC.

  12. As to the modification of WMBC’s position on the minutes, Mr. Tour explained that, a further detailed examination of the minutes, over a period of time, enabled him to take a more liberal view of the public interest in withholding material. The passage of eighteen months was also a factor. However, the withheld passages contained emphatic expressions of opinion which deserved the maintenance of confidentiality.

  13. Mr. Roberts spoke from regular experience of JCC meetings. There was a shared understanding of confidentiality. The main input was generally from trades union representatives. He confirmed the circulation of the minutes, which did not go to Cabinet. He could not say whether they were circulated within the unions. He stated that they were not marked “confidential”.

  14. The topics in recent years have included such controversial issues as the Academy programme, teacher retention, funding of schools and teachers’ pay.

    15. JMB’s case

  15. The public interest in disclosure was plain. The promotion of high standards in maintained schools and decisions as to their conversion into academies were issues of fundamental importance to the community. Transparency was always a vital interest in the conduct of public affairs but nowhere more so than in education, one of the key functions of a local authority.

  16. Any representative of a teaching union should be accountable to his/her members for opinions expressed or demands made at the JCC, the meeting place for teachers and local administrators of education. Likewise, council members should be answerable to their constituents for what they said in this kind of forum. There was no justification for off – the – record exchanges on critical issues between teachers’ representatives and elected members or senior management paid by WMBC.

  17. The absence of any confidentiality marking on the minutes was significant.

  18. Other local authorities, said JMB, published such exchanges, which were evidence of good industrial relations.

  19. The public interest in confidentiality for these meetings was correspondingly slight or non – existent. If union members or councillors were really concerned at the prospect of disclosure of their contributions at the JCC, it was odd that no attempt had been made to adduce direct evidence from them. If there was, indeed, an expectation of confidentiality, it was unjustified and should be removed.

  20. There was no sound reason for members of the JCC to flinch from candour if they knew their words might be recorded in a published document.

    21. The case for WMBC

  21. Confidentiality is essential if the JCC is to function properly. Its value lies in the outspoken expression of views on important and sensitive topics, whether by teachers/ representatives or by elected members. The feedback to local and national government as to teachers’ concerns and sentiment, on an unattributable basis, is of considerable importance.

  22. The requested information may grow less sensitive with the passage of time – witness the revision of WMBC’s position on disclosure. The timing of this request was significant, however. It was made immediately after the relevant meeting and before the requested minutes had even been approved. The “safe space” argument is compelling in this case.

    23. The Reasons for our decision

  23. As indicated above, the sole issue for determination by the Tribunal is the balance of public interests, applying the test cited in §6 as related to this appeal in §9.

  24. It is accepted that the exemption provided by s.36(2)(b) is engaged. Having regard to all the evidence, we conclude that its engagement is dependent on (ii), we conclude that its engagement is dependent on      “the inhibition of the free and frank exchange of views for the purpose of deliberation”
       because, as indicated in §27, we do not think that the JCC is an advisory body.

  25. The public has an obvious interest in knowing how decisions are reached or what advice is given on matters affecting every stage of education, whatever the age of the student. An important issue in this appeal is, therefore, the purpose of the JCC.

  26. It is not a forum for general public debate on educational issues. That function is performed by the aptly named Schools Forum, where the expression of opinions receives appropriate publicity. We were told and we accept that contributions from teachers and councillors tend to be more cautious than in the JCC.

  27. More importantly, the JCC is not an advisory still less a decision – making body. Its function is to permit blunt and fearless exchanges of view, often controversial and sometimes unpredictable. Such exchanges may enable council officers present to warn Cabinet, or possibly the Department of Education, of tensions and strong feelings on important questions such as the role of Academies or the morale of the local teaching profession and to do so without reference to the particular contribution of a member of the JCC. To consult is not to seek advice. The WMBC witnesses stressed the importance to a local education authority of this channel of communication. The Tribunal agrees with their assessment.

  28. JMB argued that any expression of opinion by an elected member of an authority should be accessible to the electorate and that a similar principle applies to the relationship between a trades union representative and those whose interests he/she serves. That may be a reasonable proposition where the member or representative is participating in a decision or in the tendering of formal advice or recommendations intended to influence directly a specific decision. We find that different considerations apply to a consultative committee, whose function is to promote a debate without constraints.

  29. The absence of direct evidence from JCC members as to the expectation of confidentiality is a significant but not a decisive omission. We infer from the evidence of Mr. Roberts and Mr. Tour and from our own experience that such an expectation exists. It is a feature of many bodies in which potentially conflicting interests are convened for the purpose of clarifying their differences and identifying any common ground.

  30. The absence of confidentiality markings would be relevant to questions of the public interest if, but only if, it demonstrated that WMBC’s own practice was inconsistent with its claim that there was a strong public interest in the confidentiality of JCC proceedings. We are inclined to view this rather as an administrative oversight than a reflection of the true expectations of JCC members.

  31. The restricted circulation of minutes is consistent with confidentiality. Plainly, WMBC cannot control their disclosure by a member to fellow teachers but that does not indicate that it has no concerns over publicity.

  32. These are considerations which apply to JCC minutes generally and the Tribunal acknowledges that it must have particular regard to the specific information withheld from the set of minutes with which it is concerned.

  33. We have already observed that the request was made at a time when the minutes were still in unapproved draft form. Although WMBC did not appear to attach much weight to this fact, draft minutes are generally more sensitive than the final approved version. However, this is not a decisive factor in our decision.

  34. One redaction relates to the personal data of a WMBC employee. It is accepted that such data are properly withheld for reasons unrelated to s.36(2).

  35. The other redactions involve firm expressions of opinion and closely related responses on academies, advanced skills teachers, and teachers’ pay and two short references to future changes which would require consultation. In the Tribunal’s opinion, adopting the approach already discussed, they are properly withheld. We do not consider that a Closed Annex is required to deal with them further.

    36. Conclusion

  36. In summary, the Tribunal recognizes the particular importance of transparency in the process of policy – making, locally as much as nationally, in such a vital service as education.

  37. However, we do not regard the function of the JCC as a part of that process, save in the very indirect sense already indicated.

  38. On the other hand, we see a real public value in unconstrained consultation designed to get to the core concerns of teachers, parents and elected members. We accept that the price to be paid for such an airing of opinion is confidentiality.

  39. We acknowledge some public interest in disclosure of the discussions of even a consultative committee but judge that they are clearly outweighed by the interest in maintaining the function of such as the JCC. Absent confidentiality, we conclude that the JCC would either disappear or be reduced to a largely worthless role.

  40. This appeal is therefore dismissed.

  41. Our decision is unanimous.

David Farrer Q.C.
Tribunal Judge,
7th September, 2016


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What was in the 5 A4 page witness statement of Andrew Roberts (Wirral Council) about a Freedom of Information request for the minutes of a meeting of the Headteachers’ and Teachers’ Joint Consultative Committee (EA/2016/0033)?

What was in the 5 A4 page witness statement of Andrew Roberts (Wirral Council) about a Freedom of Information request for the minutes of a meeting of the Headteachers’ and Teachers’ Joint Consultative Committee (EA/2016/0033)?

                                             

At the outset I will make four declarations of interests.

1) I am the Appellant in this case (EA/2016/0033).
2) My wife was my McKenzie Friend in case EA/2016/0033.
3) I made the original Freedom of Information request on the 29th March 2013.
4) I am referred to by name (Mr. Brace) in paragraphs 1, 4 and 5 of the witness statement of Andrew Roberts.

This continues from an earlier blog post headlined What were the 6 A4 pages of partially redacted minutes of a Headteachers’/Teachers’ Joint Consultative Committee meeting and the name of a LGA Associate Tutor that Wirral Council disclosed voluntarily in response to a First Tier-Tribunal (General Regulatory chamber) hearing (case number EA/2016/0033) about a Freedom of Information request first made in March 2013?.

Line breaks are indicated by a double horizontal line break. A picture of Andrew Roberts at a meeting of Wirral Council’s Schools Forum from the 3rd December 2014 is below so people reading know who I’m referring to. I have included his signature at the end of the witness statement as an image.

I have added a links from his witness statement below to decision notice FS50596346 referred to in paragraph 1 of his witness statement as this has been published on ICO’s website. I also link to the Freedom of Information Act 2000 also referred to in paragraph 1.

Where paragraphs cross over multiple page I have added the paragraph number on the second page to preserve formatting and to aid with comprehension.

The witness statement of Andrew Roberts was sent to me by post to the incorrect address (Wirral Council decided to delete the road and property number) for service (recorded signed for mail) by Wirral Council on 31st May 2016. It was received by myself on the 2nd June 2016.

Andrew Roberts at a public meeting of Wirral Council's Schools Forum 3rd December 2014
Andrew Roberts at a public meeting of Wirral Council’s Schools Forum 3rd December 2014

Continue reading “What was in the 5 A4 page witness statement of Andrew Roberts (Wirral Council) about a Freedom of Information request for the minutes of a meeting of the Headteachers’ and Teachers’ Joint Consultative Committee (EA/2016/0033)?”

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

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

                                                       

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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What did a 3 year FOI battle with Wirral Council reveal about councillors’ equipment and training?

What did a 3 year FOI battle with Wirral Council reveal about councillors’ equipment and training?

                                                    

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

A fortnight ago, required to do so by ICO decision notice FS50596346 Wirral Council finally provided some more information in response to my FOI request first made on the 29th March 2013.

I will point out (in case you’re wondering why it has taken nearly three years to get to that point) that this request has also been the subject of two other ICO decision notices FS50509081 and FS50569254.

So far Wirral Council has stated that the information requested would cost too much (section 12), that to give me the information would be prejudicial to the effective conduct of public affairs (section 36), that they class that doing an internal review of that decision as vexatious (section 14) and now finally when all of those prior decisions have been proven to be flawed, they withheld some of the information requested claiming it’s personal information (section 40).

My feeling about this is that Wirral Council, who refer to their approach in public as “open and transparent” have tried to engage in attrition warfare with myself and the regulator ICO over this request.

Mind you this is Wirral Council. Wirral Council is where responses to FOI requests from the press get delayed because they have to be "signed off" by the former head of their press office Emma Degg and their Monitoring Officer Surjit Tour?

So what did I request that was released a fortnight ago? One document was minutes of the Members’ (Members’ means Councillors’) Equipment Steering Group meeting held on the 7th February 2013. The other document was minutes of the Members’ Training Steering Group held on the 19th March 2013.

Quite what is in these two documents that requires a nearly three year cover up about their contents, I’m not sure. The scanned pages Wirral Council have supplied for the meeting of the Members’ Equipment Steering Group and the Members’ Training Steering Group are unfortunately scanned at a low resolution which can make them hard to read. So I will reproduce them both below starting with the Members’ Equipment Steering Group. As that mentions audio recording and webcasting of committee meetings I will declare an interest.

The part of this request that relates to the minutes of a meeting of the Headteachers and Teachers Joint Consultative Committee I have appealed to the First Tier Tribunal (Information Rights) and am at the stage of awaiting ICO’s response to my appeal.


Actions from Members’ Equipment Steering Group Meeting held on 7 February 2013

  1. Actions from the last Meeting
    I Pads had been discounted at the last meeting.

  2. Members’ Homepage and Toolkit
    – Homepage
    Members would consider the proposed content and come back to XXXXXXXXXXXX with any suggestions for inclusion.

    – Toolkit
    The proposed detail of the Members’ Toolkit was endorsed and XXXXXXXXXXXX would progress it.

  3. Councillor Equipment Device Options
    XXXXXXXXXXXX would obtain a price for the following devices:
    430 i 5
    430 i 3
    A recommendation will be made to the Cabinet subject to price and specification

  4. Councillor Equipment Printer Options
    The preferred printer was HP Office Jet 8000. In exceptional circumstances only would a Member’s own printer be connected to the network.

  5. Wireless in Wallasey Town Hall
    All Committee Rooms in the Town Hall would have wifi facilities by the time Members were in possession of their new IT kit.

    Officers will look at the possibility of Members being able to receive emails on smart phones via wifi.

  6. Councillor Equipment Rollout Timetable
    – Personally owned Ipad
    A system would be purchased, configured and installed by IT Services to allow Members to use their own Ipads.

    – Laptop
    This was an option. Members will keep their existing bag.

    – Router
    This was an option.

    – Telephone Handsets
    Members would keep their existing handsets.

    – Furniture
    New furniture would not be purchased

    – Modern.gov Application
    Modern.gov could provide an Application so that Personal Devices could access "Exempt Items" at a cost of £3000. This would not be taken up

    – Political Offices
    Office staff would not be included in the new equipment roll out.

    – Windows XP and Office 2010

    – Broadband Choices

    – Further Members’ Survey

  7. Councillor Case Management Systems

  8. Use of Personal Electronic Devices

  9. Use of Councillors own equipment

  10. iPad and HP Slate Autumn Trial

  11. Audio Recording and Webcasting of Committee Meetings

  12. Date and Time of Next Meeting

    XXXXXXXXXXXX to canvass Members and arrange the next meeting.

  13. Any Other Business

Below should be the Action Minutes of the Member Training Steering Group held on the 19th March 2013. On the original there is a third column with OD (Organisational Development) Team written next to points two to nine. It’s easier to write this in HTML without creating the way it is laid out as a table so I have left this out. I’ve also left out the page numbers and the filename/path on Wirral Council’s computer that it’s stored. However these can be viewed on the original.

Action Minutes

Member Training Steering Group

19 March 2013

Apologies -: Surjit Tour, XXXXXXXXXXXX

Attending -: Cllr McLachlan (Chair), Cllr Clements, Cllr Glasman, Cllr Gilchrist, Cllr Harney, Cllr Hornby, Chris Hyams, XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

  1. Welcome and introductions

    The group welcomed XXXXXXXXXXX who is an associate tutor with the LGA and will be providing an overview of the Leadership Programme for Members

    Noted that Cllr Clements did not attend the last meeting and apologies had been received.

  2. Minutes and Matter Arising

    a) Terms of Reference
    Agreed that the Chief Executive would be included as support for the group.

    The group would continue to sign off requests for training and will continue to be mindful of the travel and accommodation costs.

    Agreed that OD would report back on a quarterly basis training approval decisions.

    Agreed to put the terms of reference into themes and circulate.

    b) Recruitment to Leadership Modules

    Agreed that Members should forward names to XXXXXX to reserve a place on the course and to contact XXX should they have any queries.
    An introduction session will run on the 10th April a Flyer will be sent out providing the details of the session. XXXXX explained that the Pre course briefing would cover an introduction to the programme followed by the completion of the Myers Briggs Type Indicator questionnaire as this would form the basis for the content on Module one, feedback would then be provided either face to face, which preferable or over the phone, prior to the programme commencing on the 8th May.

    It was noted that participants are required to attend both modules to benefit from the programme.

    c) Elected Member training onto the committee calendar

    Agreed to escalate the request to include members training from the skills for Wirral programme into the committee calendar.

  3. Standing Item – Training Update (since last meetings)

    a) 13th February – Developing the Council of the Future

    Noted that 30 attended the event with a mixture of feedback

    Agreed to chase up the feedback from this event and share with Members.

    Agreed to look at how Member’s could be provided with more opportunities to feedback and participate in these events.

    b) Public Health and Wellbeing: 20 February 2013

    Noted that 9 attended with very good feedback

    c) Understanding Local Government Finance: 27 February 2013

    Noted that 8 attended with very good feedback

    d) Media Skills

    Noted that 2 attended with very good feedback

    e) High Level Communications Skills

    Noted that 5 attended with very good feedback

    f) Attendance on training

    Agreed to continue to send reminders for training but as a rolling programme of events that month and to include flash reminder the day of the training that spaces are available.

  4. Standing Item – Upcoming training ( Members Development Programme)

    a) Effective Surgeries and Caseload Management Training

    Agreed to look at were we are up to with an Electronic System for case load Management. Meeting already arranged with IT to discuss this and Members IT training, feedback would be provided at the next meeting.

    b) Training Venues

    Agreed to look at other venues rather than The Laurie’s Centre for Elected Member training sessions and move the training already book to other venues, to minimise costs.

  5. Standing Item – Approved Duty Requests

    No outstanding approved duties

    a) Spending for Approved duties

    Members to discuss and feedback as to how they would like to spend monies for approved duties, agreed to monitor on a case by case basis.

    b) Feedback from Events Attended

    Agreed to look at feedback from events and if particularly effective consider developing a Wirral version of the event.

  6. Standing Item – Budget

    a) Profile 2012-2013

    Budget profile discussed and noted that there would be an under spend this year. Details shared with the group.

    b) Profile 2013-2014

    Approximately £13,000 has been committed to date. Budget to be monitored at each meeting.

    c) Spending for Approved Duties
    Agreed to explore options around external funding available.

  7. Members Development Charter.

    a) PDP Returns
    46 PDP have been completed with 6 scheduled for April. This would bring the total to 52 PDP completed, which takes us over the 75% requirement for completion of the Members Charter. Agreed to continue to encourage the completion of all outstanding PDPs.

  8. Members Development Programme Accreditation

    a) Agreed for flyer to be sent to all Elected Members to promote the programme

    b) Additional information from ilm to be sent to Cllr Harney

  9. AOB

    a) 4th April New Constitutional Event 6pm – 8pm Floral

    b) 16 May Key Transformation and Improvement Agenda Session
    Suggestion from Cllr Glasman Ethics and Conduct.

    c) Training for Members – Directorships and Trusts

    Advert to be sent to Elected Members when programme agreed

  10. Date and Time of next meeting

    30 April 2013 4 – 5.15pm


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After 2 years, 10 months and 3 ICO decision notices will Wirral Council finally provide a response to a FOI request about councillors?

After 2 years, 10 months and 3 ICO decision notices will Wirral Council finally provide a response to a FOI request about councillors?

                                                                            

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

Last week I received another decision notice from the Information Commissioner’s Office through the post about this freedom of information act request I made to Wirral Council on the 29th March 2013.

Yes it’s now 2016, but this request has already been the subject of decision notice FS50509081 (dated 8th September 2014) (9 pages) and decision notice FS50569254 (dated 29th July 2015) (13 pages).

This decision (decision notice FS50596346) dated the 25th January 2016 is 11 pages long.

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.

Out of the remaining four parts to this request, Wirral Council released the minutes of the Safeguarding Reference Group meeting of the 19th April 2011 a fortnight before the decision notice is dated.

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.

A copy of the text of the decision notice is below (although there may be some minor formatting changes between this web version and the print version). Edited on 15/2/2016 The decision notice (FS50593646) has now been published on ICO’s website.

Reference: FS50596346

Freedom of Information Act 2000 (FOIA)

Decision notice

Date: 25 January 2016

Public Authority: Wirral Metropolitan Borough Council
Address: Wallasey Town Hall
Brighton Street
Wallasey
Wirral
CH44 8ED

Complainant: John Brace

Address: Jenmaleo
134 Boundary Road
Bidston
Wirral
CH43 7PH

Decision (including any steps ordered)


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:

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Reference: FS50596346

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.

Background

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.

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Reference: FS50596346

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.

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Reference: FSSOS96346

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

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Reference: FS50596346

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

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Reference: FS50596346

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

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Reference: FS50596346

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

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Reference: FS50596346

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

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Reference: FS50596346

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

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Reference: FS50596346

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.

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Reference: FS50596346

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:

First-tier Tribunal (Information Rights)
GRC & GRP Tribunals
PO Box 9300
LEICESTER
LE1 8DJ

Tel: 0300 1234504
Fax: 0870 739 5836

Email: GRC@hmcts.gsi.gov.uk
Website: www.justice.gov.uk/tribunals/general-regulatory-chamber

53. If you wish to appeal against a decision notice, you can obtain information on how to appeal along with the relevant forms from the Information Tribunal website.

54. Any Notice of Appeal should be served on the Tribunal within 28 (calendar) days of the date on which this decision notice is sent.

Signed …….(signature of Pamela Clements)………..

Pamela Clements
Group Manager
Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF

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