Tag: ICO

What was my reply when Wirral Council's "Ministry of Truth" asked for 2 invoices on this blog to be erased?

What was my reply when Wirral Council’s “Ministry of Truth” asked for 2 invoices on this blog to be erased?

What was my reply when Wirral Council’s “Ministry of Truth” asked for 2 invoices on this blog to be erased?

Jenmaleo,
134 Boundary Road
Bidston
CH43 7PH
18th January 2015
by email to surjittour@wirral.gov.uk
CC: joeblott@wirral.gov.uk

Mr. Surjit Tour
Head of Legal and Member Services and Monitoring Officer
Department of Transformation and Resources
Wirral Metropolitan Borough Council
Town Hall
Brighton Street
Wallasey
Wirral
CH44 8ED

Dear Mr. Tour,

Thank you for your email of 15th January 2015 sent at 16:38 with the subject “Blog posting of invoices” which is attached for reference at appendix A. You also attached to your email ICO guidance to s.32 of the Data Protection Act 1998 titled “Social networking and online forums – when does the DPA apply?” which can be read on ICO’s website at https://ico.org.uk/media/for-organisations/documents/1600/social-networking-and-online-forums-dpa-guidance.pdf .

Please class this as a formal response to the issues you have raised in it. I have no problem with you sending a copy of this response to Dr Gareth Vincenti.

You refer in your opening paragraph to section 15 of the Audit Commission Act 1998 (in its amended form as it was later amended by s.160 of the Local Government and Public Involvement in Health Act 2007). This is attached in full for reference at appendix B.

You state “You were provided with copies of certain invoices in compliance with Section 15 (a) of the 1998 Act, which entitles you to make copies of all or any part of the accounts and those other documents.”

The issue of copying of documents (as you can read for yourself in appendix B which is a copy of the legislation) is dealt with by the Audit Commission Act 1998 section 15(1)(b), as section 15(1)(a) deals with a right to inspect documents, not to copy documents. Therefore this sentence in your email should read Section 15(1)(b), not Section 15(a).

You go on to state “In redacting certain parts of those invoices, the Council relied on Section 15 (3A) of the Audit Commission Act 1998, as amended, which relates to personal information.”

If you read s.15(3A) of the Audit Commission Act 1998, as amended (attached as appendix B) you will find the definition of personal information in s.3A is “(3A) Information is personal information if–

(a) it identifies a particular individual or enables a particular individual to be identified; and
(b) the auditor considers that it should not be inspected or disclosed.”

It is important to note that the way the legislation is phrased it is not down to Wirral Council to make the ultimate decision as to whether information that may or may not fall within the definition of personal information as defined by section 3A should or shouldn’t be inspected or disclosed, but that decision is to be made by Wirral Council’s auditor who is for the financial year in question (2013-14) was Grant Thornton UK LLP.

It has not been determined yet whether Wirral Council asked its auditor Grant Thornton UK whether any of the information on the invoice in question should not be inspected or disclosed and if so what Grant Thornton UK LLP’s decision on this matter was.

Appendix C is a communication to Wirral Council’s external auditor in an attempt to clarify whether this took place.

On the 19th January 2015 I received a reply from Wirral Council audit Grant Thornton UK LLP. As you may or may not be aware the current engagement lead at Grant Thornton UK LLP is different to the engagement lead at Grant Thornton UK LLP for the 2013/14 audit. I can confirm that Grant Thornton UK LLP however are making enquiries and will respond as soon as they can.

If there has been an oversight and Wirral Council did not ask its external auditor to make a determination in relation to the many redactions it made to the hundreds of invoices I inspected and received copies of, I would hope that that arrangements could be made to inspect and copy the information I was incorrectly denied access to inspect and receive copies of last year.

You state later in your email:

“The Council considers that it may be necessary to report this matter to the Information Commissioner’s Office and Dr Vincenti may wish to take his own action in connection with your disclosing his personal data “

I will deal with the two interrelated matters raised here in relation to what you refer to as “personal data” of Dr Vincenti’s.

His surname “VINCENTI” is mentioned at the top of the invoice. Not redacted on the copy invoice supplied by Wirral Council is the phrase “Invoicing by Midex Pro for Dr Vincenti”. It is also stated that “cheques are to made payable to Dr. Vincenti”. Two addresses are also used on the invoice to send cheques to, one is a document exchange “DX 720874 Northallerton”, the sort code of 54-10-41 (which relates to a specific branch of a bank) is provided on the invoice for BACS payments and an email address of garethvincenti@btinternet.com is also given.

Dr Gareth Vincenti discloses his own email address, along with other contact details such as the address for correspondence on his website here [drvincenti.co.uk/contact.htm (at the time of writing this link worked however Dr Vincenti’s website is down as of 19th March 2015)]] . The document exchange address is published here http://www.expertsearch.co.uk/cgi-bin/find_expert?4052 and also elsewhere online.

Neither the sort code, nor the document exchange reference fall under s.3A as neither identify a particular individual or enable a particular individual to be identified as both would be used by multiple individuals.

You refer in my email to my right to inspect the invoice. Section 34 of the Data Protection Act 1998 deals with information available to the public under inspection by another enactment (in this case s.15 of the Audit Commission Act 1998).

As it is short I will quote it here:

34 Information available to the public by or under enactment.

Personal data are exempt from—
(a) the subject information provisions,
(b) the fourth data protection principle and section 14(1) to (3), and
(c) the non-disclosure provisions, if the data consist of information which the data controller is obliged by or under any enactment other than an enactment contained in the Freedom of Information Act 2000 to make available to the public, whether by publishing it, by making it available for inspection, or otherwise and whether gratuitously or on payment of a fee.

As to the invoice in question, the “personal data” of Dr Vincenti as you put it was available for inspection because of s.15 of the Audit Commission Act 1998, therefore s.34(c) of the Data Protection Act 1998 applies. It has not been established whether the auditor made a determination that any of it fell within the meaning of “personal information” in section 3A. Therefore at this stage, as you have not provided any evidence that the auditor made such a determination it means such “personal data” is exempt from the non-disclosure provisions that you refer to in your email.

You also state in your email that “which additions include the address of an employee/or former employee of the Council which is capable of amounting to personal data and in the context of the invoice capable of amounting to the processing of sensitive personal data.”

The address you refer to was a partial address. Had it been a complete address including house number, it could be argued that it would fall under the definition of personal information (as defined by s.15(4) of the Audit Commission Act 1998 see appendix B) which states that in order to qualify as personal information, the information “relates specifically to a particular individual”.

There are 60 different addresses in Forwood Road and 22 addresses that match that particular postcode. Wirral has a average household population of 2.17 per a household. Therefore the partial address could potentially relate to one of an estimated 48 individuals.

A partial address, without a house number does not therefore “relate specifically to a particular individual” nor does it enable a particular individual who may live at one of these addresses to be identified. It relates to a large group of individuals. Therefore it falls outside the definition of “personal information” as defined by s.4(1)(a) as it is not information that relates specifically to a particular individual.

Section 32 of the Data Protection Act 1998 on journalism, literature and art also applies here. I state my belief as data controller that I believe that having regard in particular to the special importance of the public interest in freedom of expression, publication of both the original invoice, a copy of the invoice with some of the text from the original invoice highlighted in green and this response including appendices to the response is in the public interest.

A very similar complaint to ICO was made in 2011 about a blogger called Derek Dishman who blogs under the nom de plume of “Mr Mustard” by Barnet Council. The exchange between Barnet Council and ICO can be read here https://www.whatdotheyknow.com/request/94886/response/237295/attach/2/R%20IRQ0426076%20ICO%20Barnet%20correspondence%20re%20ENQ0391446.pdf . To summarise ICO disagreed with Barnet Council’s incorrect assertions about this blogger (which seem broadly similar to those made by Wirral Council).

Finally you state “I do not consider that your right to inspect and the right to have copies made of relevant documents, then entitles you to disclose such documents to the public”.

I hope I have outlined (in much detail above) as to why you are incorrect in that assertion. This issue of the purposes to which information obtained by third parties using their rights to inspect and have copies of information held by local councils during the audit has already been dealt with at a previous judicial review case.

I refer you to R (HTV Ltd) v Bristol City Council [2004] 1 WLR 2717 which I have recently read. I quote from Elias J, the High Court Judge in that matter:

“55. The premise here is that the provision requires the information to be used for a limited purpose or purposes. As I have indicated, I accept that Parliament probably did envisage that the information would be primarily in order to enable electors to raise questions with the auditor and ultimately raise objections. But the fact that those who have access to this information extend beyond those who can make such a request, or raise such an objection, shows that it cannot be the only purpose.

56. In any event, there is no express limitation in the statute as to the use to which this information can be put. I see significant practical difficulties as to confining the use of the material once it has been acquired.”

Finally, my last two points are as Wirral Council is the data controller for the complaint made to it by Dr Gareth Vincenti which refers to me, please class this response as a request exercising my right under s.7 of the Data Protection Act 1998 for a copy of Dr Gareth Vincenti’s complaint.

I further point out that due to what is referred to above I am exercising my right under s.10 of the Data Protection Act 1998 and request that Wirral Council confirm it will immediately cease to process further any personal data about myself in relation to the complaint made by Dr Gareth Vincenti or your email for the reasons outlined above as raising this issue in the way it has been is causing distress.

Yours sincerely,

John Brace

 

 

Appendix A (email from Surjit Tour to John Brace dated 15th January 2015)

from:

Tour, Surjit <surjittour@wirral.gov.uk>

to:

john.brace@gmail.com

date:

15 January 2015 at 16:38

subject:

Blog Posting of Invoices

mailed-by:

wirral.gov.uk

Dear Mr Brace,

I refer to your inspection of documents under Section 15 of the Audit Commission Act 1998, in connection with the audit of the Council’s accounts for the financial year ending March 2014. You were provided with copies of certain invoices in compliance with Section 15 (a) of the 1998 Act, which entitles you to make copies of all or any part of the accounts and those other documents. In redacting certain parts of those invoices, the Council relied on Section 15 (3A) of the Audit Commission Act 1998, as amended, which relates to personal information.

I do not consider that your right to inspect and the right to have copies made of relevant documents, then entitles you to disclose such documents to the public nor does it entitle you to alter the Council’s redacted documents, which alteration constitutes processing of data. The Council has received a complaint from Dr Gareth Vincenti concerning a posting made on your blog on 1 December 2014 entitled:

“Do you want to know what 6 redacted legal invoices paid by Wirral Council on employment matters (including one from a consultant psychiatrist) state?

This posting included the copy of an invoice from Dr Vincenti which had been redacted by the Council. You had posted a second copy of the invoice, having altered part of the redactions to include information in green. You state on the blog posting:

“I’ve supplied both the original and a partly redacted copy of this as the original is heavily redacted. My additions are in green”.

I have had regard to the guidance of the Information Commissioner’s Office,“Social networking and online forums – when does the DPA apply?”

I consider that by altering the Council’s redactions to include additions in green, you have potentially processed personal data in breach of the Data Protection Act 1998, which additions include the address of an employee/or former employee of the Council which is capable of amounting to personal data and in the context of the invoice capable of amounting to the processing of sensitive personal data. I do not believe that you are entitled to rely on the exemption contained in section 36 of the Data Protection Act 1998, in that I consider you are using social media for non-domestic purposes. Section 36 contains an exemption for personal data that is processed by an individual for the purposes of their personal, family or household affairs. I am therefore requesting that you remove from your blog both copies of the invoice from Dr Vincenti immediately.

The Council considers that it may be necessary to report this matter to the Information Commissioner’s Office and Dr Vincenti may wish to take his own action in connection with your disclosing his personal data and the address referred to above.

Yours sincerely

Surjit Tour

Head of Legal & Member Services

and Monitoring Officer

Department of Transformation and Resources

Wirral Metropolitan Borough Council

Town Hall

Brighton Street

Wallasey

Wirral

CH44 8ED

Tel: 0151 691 8569

Fax: 0151 691 8482

Email:surjittour@wirral.gov.uk

Visit our website: www.wirral.gov.uk

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Appendix B
Section 15 of the Audit Commission Act 1998 (as amended by s.160 of the Local Government and Public Involvement in Health Act 2007)

15 Inspection of documents and questions at audit

(1)At each audit under this Act, other than an audit of accounts of a health service body, any persons interested may—
(a)inspect the accounts to be audited and all books, deeds, contracts, bills, vouchers and receipts relating to them, and
(b)make copies of all or any part of the accounts and those other documents.

(2)At the request of a local government elector for any area to which the accounts relate, the auditor shall give the elector, or any representative of his, an opportunity to question the auditor about the accounts.

(3)Nothing in this section entitles a person—
(a)to inspect so much of any accounts or other document as contains personal information within the meaning of subsection (3A) or (4); or
(b)to require any such information to be disclosed in answer to any question.

(3A) Information is personal information if–

(a) it identifies a particular individual or enables a particular individual to be identified; and
(b) the auditor considers that it should not be inspected or disclosed.

(4) Information is personal information if it is information about a member of the staff of the body whose accounts are being audited which relates specifically to a particular individual and is available to the body for reasons connected with the fact—
(a)that that individual holds or has held an office or employment under that body; or
(b)that payments or other benefits in respect of an office or employment under any other person are or have been made or provided to that individual by that body.

(5)For the purposes of subsection (4)(b), payments made or benefits provided to an individual in respect of an office or employment include any payment made or benefit provided to him in respect of his ceasing to hold the office or employment.

Appendix C – Email to external auditor Grant Thornton

 

from:

John Brace<john.brace@gmail.com>

reply-to:

john.brace@gmail.com

to:

Robin Baker <robin.j.baker@gt.com>

cc:

“Chris Whittingham (Grant Thornton)” <c.whittingham@uk.gt.com>

date:

18 January 2015 at 18:48

subject:

query about whether Grant Thornton gave permission to Wirral Council during the 2013/14 audit for personal information on invoices should not be inspected/disclosed


Dear Robin Baker & Chris Whittingham,

During the 2013/14 audit I exercised my inspection rights to inspect various invoices and receive copies of them for the 2013/14 financial year under s.15 of the Audit Commission Act 1998.

Last Thursday I received an email from Wirral Council that stated “In redacting certain parts of those invoices, the Council relied on Section 15 (3A) of the Audit Commission Act 1998, as amended, which relates to personal information.”

S.15 (3A) of the Audit Commission Act 1998 was amended in 2008 to state:

“(3A)Information is personal information if—

(a) it identifies a particular individual or enables a particular individual to be identified; and

(b) the auditor considers that it should not be inspected or disclosed.”

Could you confirm that as Wirral Council’s auditor at the time whether a determination was made by the auditor that personal information on an invoice for £3,060 from a Dr Gareth Vincenti dated 31st December
2013 was made and if so which elements on the invoice the auditor considered should not be inspected or disclosed?

Could you also confirm as Wirral Council’s auditor at the time whether any determination was made by the auditor about personal information on any of the invoices I requested for the 2013/14 year was made and
if so the particular invoices and particular information that the auditor considered should not be inspected or disclosed?

If the auditor was not asked to make any such a determination could you state this too?

Thanks,

John Brace

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Wirral Council take nearly 20 months to respond to a FOI request for SACRE meeting minutes that should only take 20 days

Wirral Council take nearly 20 months to respond to a FOI request for SACRE meeting minutes that should only take 20 days

Wirral Council take nearly 20 months to respond to a FOI request for SACRE meeting minutes that should only take 20 days

                                   

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

I wanted to write this piece to show how hard it is to get information out of Wirral Council, that is routinely published elsewhere.

On the 29th March 2013, I made this Freedom of Information Act request for the minutes of the previous meeting of Wirral Council’s Standing Advisory Committee on Religious Education (SACRE).

Just as a bit of background as to what the Standing Advisory Committee on Religious Education is. The Education Act 1996 c.56 has s.390 to s.397 on these committees and there are also regulations called the The Religious Education (Meetings of Local Conferences and Councils) Regulations 1994 which have the following regulations relevant to this:

Regulation 3 determines that the Standing Advisory Committee on Religious Education meets in public. Unusually the regulations also states that they can’t exclude the public or press except for disorderly conduct.

The public have a right to inspect a copy of the minutes of its meetings for up to 6 years after they’ve happened (also agendas and reports).

Wirral Council even has to give three days advance notice of SACRE meetings.

This document on Brent Council’s website on page 14 states “The main meetings of SACRE are public and open to all. Under the Freedom of Information Act 2000 all SACRE documents are required to be available for public scrutiny.”

Under Wirral Council’s internal rules this committee is not however administered by Legal and Member Services, but instead serviced by officers from the Children and Young People’s Department. It doesn’t for example appear in the list of public meetings on Wirral Council’s website.

So this is what happened when I tried to request the minutes of one meeting of SACRE.

29th March 2013 FOI request made using excellent whatdotheyknow website.
29th April 2013 Wirral Council exceeds 20 day limit for responding to request and is sent a reminder
30th April 2013 Request refused on s. 12(1) cost grounds (require >18.5 hours of work) due to:

“a great deal of Personal Data and Sensitive Data, which would have to be reviewed and redacted were applicable.”

30th April 2013 Internal review of decision of 30th April 2013 requested. It is pointed out to Wirral Council that redacting documents does not count towards the 18.5 hour limit.
30th July 2013 Internal review decision also refuses request, not on s.12(1) cost grounds but on s.14 (vexatious or repeated request) grounds.
14th August 2013 Internal review decision appealed to Information Commissioners Office
8th September 2014 ICO issue decision notice FS50509081

Decision notice states (in relation to this part of the FOI request) Wirral Council breached s.10 and incorrectly applied s.12 and s.16:
s.10 (time for compliance with request) due to failure to respond to FOI request within 20 working days
s.12 (exemption where cost of compliance exceeds appropriate limit) (failed to provide evidence)
s.16 (duty to provide advice and assistance) (breached requirement)

ICO require Wirral Council to take the following steps within 35 calendar days (deadline 13th October 2014) or alternatively appeal the decision notice within 28 days of the 8th September 2014:

Issue a response to the complainant’s request that does not rely upon section 12(1) of the FOIA or regulation 12(4)(b) of the EIR.
Provide advice and assistance to the complainant about which of the requested information is held by the council, and therefore falls under the terms of the FOIA or EIR.

14th October 2014 (36th calendar day after decision notice) no response received from Wirral Council (after which time it is considered contempt of court) so I tell ICO.
4th November 2014 Wirral Council supply the minutes of the SACRE meeting held on 7th February 2013 but remove all names (apart from councillors) on the basis of s.40 (personal information) of the Freedom of Information Act 2000.

So the minutes supplied (this is an extract of the first three agenda items) look like this (I’ve added annotations in italics with an asterisk):

MINUTES OF THE MEETING OF THE STANDING ADVISORY COUNCIL FOR RELIGIOUS EDUCATION HELD ON 7 FEBRUARY 2013

Present:
Names Redacted

* Groups A to D are as follows (who makes up SACRE is determined by s.390 of the Education Act 1996:
Group A “a group of persons to represent such Christian denominations and other religions and denominations of such religions as, in the opinion of the authority, will appropriately reflect the principal religious traditions in the area;”
Group B “except in the case of an area in Wales, a group of persons to represent the Church of England;”
Group C “a group of persons to represent such associations representing teachers as, in the opinion of the authority, ought to be represented, having regard to the circumstances of the area;”
Group D “a group of persons to represent the authority.” (see below)

Councillor W Clements
Group D

Councillor W Smith
Group D

Councillor P Kearney
Group D

Councillor B Mooney
Group D

In Attendance: Names redacted

Name redacted in the Chair

1.
WELCOME

Name redacted formally welcomed everyone to the meeting and introduced the first item on the agenda – the Election of a Wirral SACRE Chair for the year 2013/14. .

2.
ELECTION OF POSTS

Name redacted was proposed by Councillor Clements and seconded by Name redacted. By a unanimous show of hands Name redacted was duly elected to the post of Vice Chair.

Name redacted nominated Name redacted for the post of Vice Chair and this was seconded by Name redacted. By a unanimous show of hands Name redacted was duly elected to the post of Vice Chair.

3.
SACRE Business Matters

Apologies for absence were received from Names redacted, Councillor T Smith, Name redacted.

So advice anyone, should I request an internal review of the decision to redact the names? As these are public meetings, how are the public or press supposed to find out when they meet? If I requested further SACRE meeting minutes do you think they’d take 20 months (rather than the 20 days required under FOI) to supply them?

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ICO issues decision notice stating Wirral Council breached 4 laws in how it handled a FOI request

ICO issues decision notice stating Wirral Council breached 4 laws in how it handled a FOI request

ICO issues decision notice stating Wirral Council breached 4 laws in how it handled a FOI request

 

Ed – 19/9/14 – ICO have uploaded the decision notice (FS50509081) to their website.

Received through the post today from the Information Commissioner’s Office (ICO) was the result of an appeal to them of an internal review of Wirral Council’s dated 30th July 2013 which related to a request made by myself on the 29th March 2013.

The whole decision goes on for nine A4 pages (plus one page accompanying letter from ICO). It’s not been published yet on ICO’s website but will be in the near future. Wirral Council (and myself) have 28 days from the date of the decision made on the 8th September 2014 to make our minds up as to whether either or both parties wishes to appeal this decision notice to the First Tier Tribunal (Information Rights).

Below is the text of the decision notice (but not the accompanying one page letter).

Reference: FS50509081

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

Freedom of Information Act 2000 (FOIA)

Decision notice

Date: 8 September 2014
Public Authority: Wirral Metropolitan Borough Council
Address: Wallasey Town Hall
Brighton Street
Wallasey
Wirral
CH44 8ED
Complainant Mr John Brace
Address Jenmaleo
134 Boundary Road
Bidston
Wirral
CH43 7PH

Decision (including any steps ordered)

———————————————————————————————————————-
1. The complainant has requested information from Wirral Metropolitan Borough Council (“the council”) about the last minuted meetings that were held by 24 different committees. The council refused to comply with the requests on the basis that to do so would exceed the appropriate limit in costs set by section 12(1) Freedom of Information Act (“the FOIA”), and would be manifestly unreasonable under regulation 12(4)(b) of the Environmental Information Regulations (“the EIR”).

2. The Commissioner’s decision is that the council has failed to provide sufficient evidence for the application of section 12(1) of the FOIA and regulation 12(4)(b) of the EIR, and has breached the requirement of section 16(1) of the FOIA and regulation 9(1) of the EIR by failing to provide advice and assistance to the complainant. The council has further breached section 10(1) of the FOIA and regulation 5(2) of the EIR failing to respond to the request within 20 working days.

3. The Commissioner requires the council to take the following steps to ensure compliance with the legislation:

  • Issue a response to the complainant’s request that does not rely upon section 12(1) of the FOIA or regulation 12(4)(b) of the EIR.
  • Provide advice and assistance to the complainant about which of the requested information is held by the council, and therefore falls under the terms of the FOIA or EIR.

4. The council must take these steps within 35 calendar days of the date of this decision notice. Failure to comply may result in the Commissioner making written certification of that fact to the High Court pursuant to section 54 of the FOIA and may be dealt with as a contempt of court.

Request and response
———————————————————————————————————————-
5. On 29 March 2013, the complainant wrote to the council and requested the following:

“Please could you provide minutes of the previous meetings of the following committees. If minutes whether in draft form or not are not available of the previous meeting, please provide the minutes of the meeting directly before. I have given each of the committees a number in order which can be used in future communications to avoid misunderstandings.

If minutes for any of these committees are not available in electronic form and to provide them in digital form would exceed the 18.5 hours rule then I am happy to collect paper copies from Wallasey Town Hall instead.

1. Complaints Panel (School Curriculum and Related Matters)
2. Education Staff Panel
3. Headteacher Appointments Panel
4. School Appeals Panel
5. Standing Advisory Committee on Religious Education (SACRE)
6. Wirral Schools Forum (Funding Consultative Group)
7. School Admissions Forum
8. Adoption / Fostering Panels
9. Housing Review Panel
10. Unified Waiting List Management Advisory Board
11. Discharge from Guardianship by Wirral Council under the Mental
Health Act 1983 Panel
12. Independent Remuneration Panel
13. Youth and Play Service Advisory Committee
14. Corporate Parenting Group (formerly known as Virtual School
Governing Body)
15. Headteachers and Teachers JCC
16. SEN Advisory Committee
17. Wirral Schools’ Music Service Consultative Committee
18. Members’ Training Steering Group
19. Members’ Equipment Steering Group
20. Birkenhead Park Advisory Committee
21. Hilbre Island Nature Reserve Management Committee
22. Wirral Climate Change Group
23. Anti-Social Behaviour Partnership Body
24. Birkenhead Town Centre Consultative Group
25. Wirral Trade Centre Working Party
26. Safeguarding Reference Group”

6. The council responded on 30 April 2013 and refused the requests under section 12(1) of the FOIA, but advised the information sought by request 12 was available on the council’s webpages.

7. The council provided an internal review on 30 July 2013 in which it revised its position and refused the requests under section 14(1), and further advised that the information sought by request 13 was available on the council’s webpages.

Scope of the case
———————————————————————————————————————-
8. The complainant contacted the Commissioner on 14 August 2013 to contest the council’s response.

9. Following the Commissioner writing to the council on 10 February 2014, the council further revised its position on 19 June 2014 and refused the requests under section 12(1) of the FOIA and regulation 12(4)(b) of the EIR. The complainant subsequently advised the Commissioner that he wished to contest this new position.

10. The Commissioner has identified that the information sought by requests 12 and 13 is available on the council’s webpages. This was confirmed in the council’s initial response and subsequent internal review. The complainant has subsequently confirmed to the Commissioner that he accepts that this information is already publically available, and only wishes to contest the council’s response in respect of the remaining 24 requests.

11. The Commissioner therefore considers that the scope of this case is the determination of whether the council’s refusal under section 12(1) of the FOIA and regulation 12(4)(b) is correct.

Reasons for decision
———————————————————————————————————————-
Is part of the requested information environmental?

12. Information is “environmental” if it meets the definition set out in regulation 2 of the EIR. Environmental information must be considered for disclosure under the terms of the EIR. In the circumstances of this case, the Commissioner does not have sight of the requested information, but has identified that part of it derives from committees that are responsible for environmental matters, including climate change and local parkland. As such, the Commissioner considers it highly likely part of the requested information that derives from those committees would be environmental information as defined by regulation 2 of the EIR.

Section 12 (FOIA) and regulation 12(4)(b)(EIR) – Cost of compliance

13. Section 12(1) of the FOIA states that:

Section 1(1) does not oblige a public authority to comply with a request for information if the authority estimates that the cost of complying with the request would exceed the appropriate limit.

14. The Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 (“the Fees Regulations”) sets the appropriate limit at £450 for the public authority in question. Under the Fees Regulations, a public authority may charge a maximum of £25 per hour for work undertaken to comply with a request. This equates to 18 hours work in accordance with the appropriate limit set out above.

15. A public authority is only required to provide a reasonable estimate or breakdown of costs and in putting together its estimate it can take the following processes into consideration:

  • determining whether it holds the information;
  • locating the information, or a document which may contain the information;
  • retrieving the information, or a document which may contain the information; and
  • extracting the information from a document containing it.

16. The EIR do not have a provision where a request can be refused if the cost of complying with it would exceed a particular cost limit. Rather the EIR contain an exception, namely regulation 12(4)(b), which the public authority can rely on to refuse a request if they consider it to be ‘manifestly unreasonable’ on the basis that the cost of compliance with the request would be too great.

17. Although the Fees Regulations are not directly applicable to the EIR, in the Commissioner’s view they can provide a useful point of reference when public authorities argue that complying with a request would incur an unreasonable cost and therefore could be refused on the basis of regulation 12(4)(b).

18. However, there are additional factors that should always be considered in assessing whether the costs of complying with a request for environmental information are manifestly unreasonable, in particular the proportion of burden on the public authority’s workload (taking into consideration the size of the public authority), and the individual circumstances of the case (including the nature of the information requested and the importance of the issue at stake). In additional to these factors, regulation 12(4)(b) is also subject to a public interest test.

Can the requests be aggregated?

19. In cases were a single piece of correspondence contains multiple requests for information, the Commissioner’s position is that each request is separate. This was confirmed by the Information Tribunal in the case of Fitzsimmons v Information Commissioner and the Department for Culture, Media and Sport (EA/2007/0124).

20. Under the Fees Regulations, public authorities can aggregate the cost of complying with requests if they ‘relate, to any extent’, to the same or similar information’. The Commissioner interprets this phrase broadly, and considers that providing there is an overarching theme or subject matter that connects the requests, the cost of compliance with each request can be aggregated.

21. In the circumstances of this case the Commissioner has reviewed the correspondence in which the complainant requested information, and has identified that it contains 24 numbered requests for specific information. The complainant has advised the Commissioner that he has made these requests for the purpose of ensuring transparency on the part of councillors who have taken part in committees. The Commissioner is therefore satisfied that the requests are connected through an overarching theme, and that the cost of compliance can therefore be aggregated.

Can the requests spanning different access regimes be aggregated?

22. It is the Commissioner’s position that when considering the cost of compliance under section 12(1) of the FOIA or regulation 12(4)(b) of the EIR, requests that clearly fall under one access regime cannot be aggregated with those that fall under the other.

23. However, when an individual request is likely to span both access regimes, then the Commissioner recognises that the initial collation of the information will incur costs before the information can be subsequently assessed to decide which access regime applies. As such, the Commissioner considers it appropriate to consider the costs of such collation under the FOIA.

24. In the circumstances of this case, the Commissioner considers it highly likely that the information sought in requests 20, 21, and 22 will include environmental information (such as that relating to the environmental remit of the committee), and non-environmental information (such as that relating to the administration of the committee). The Commissioner is therefore satisfied that it is appropriate to consider the initial collation of any held information under the FOIA.

Does the aggregated cost of compliance exceed the appropriate limit?

25. The council’s position is that the combined costs of identifying whether the information is held in response to the 24 requests, in conjunction with any ensuing costs of locating and retrieving the information, would exceed the appropriate limit of 18 hours.

26. The council has explained to the Commissioner that the requests cover a broad range of committees, many of which are advisory in nature, and have minutes that are not electronically available through the information system that the council uses to manage its committees. The council has also suggested that due to many of the committees being advisory in nature, they may not subject to the terms of the FOIA or EIR.

27. The Commissioner, in reviewing the content of the council’s response, has identified that it has not provided the results of any sampling exercise, nor has it provided a detailed time or cost estimate to support its position that the cost of compliance would exceed the appropriate limit.

28. The Commissioner has further identified that whilst committee minutes may not be directly retrievable through the normal information system that the council uses to administrate committee minutes, he considers it reasonable to consider that the information would still be contained within a relevant filling system, either manual or electronic, which would allow the council to both identify whether the information was held, and take steps to collate it.

29. The Commissioner also considers that the council’s position that a proportion of the committees are not subject to the FOIA or EIR, further weakens the council’s grounds for refusal. Should specific committees not fall under the council’s responsibility, this would suggest to the Commissioner that the council’s compliance with the requests would only comprise meeting its duty to confirm or deny whether the information is held under section 1(1) of the FOIA or regulation 5(1) of the EIR.

30. Having considered the above factors, the Commissioner has concluded that the council has not provided sufficient evidence to support its refusal under section 12(1) of the FOIA and regulation 12(4)(b) of the EIR. As the Commissioner has concluded that regulation 12(4)(b) of the EIR is not engaged, he does not need to consider the required public interest test under regulation 12(1)(b).

Section 16 (FOIA) and regulation 9 (EIR) – Advice and assistance

31. Section 16(1) of the FOIA imposes an obligation on a public authority to provide advice and assistance to a person making a request, so far as it would be reasonable to do so. Section 16(2) states that a public authority is to be taken to have complied with the provisions in the Section 45 Code of Practice (“the Code of Practice”) in relation to the provision of advice and assistance.

32. Regulation 9(1) of the EIR likewise imposes an obligation on a public authority to advice and assistance to a person making a request, as far as it would be reasonable to do so.

33. In the circumstances of this case, the Commissioner has reviewed the council’s refusal dated 19 June 2014, does not consider that advice and assistance has taken place, despite the council refusing the request on the basis of cost. The Commissioner further considers that the council’s position that some of the relevant committees do not fall under the control of the council, suggests that advice and assistance about the extent of what information is held by the council could have been provided. Therefore, in respect of its revised position dated 19 June 2014, the council has breached section 16(1) of the FOIA and regulation 9(1) of the EIR.

Section 10(1) of the FOIA and regulations 5(2) of the EIR – Time for compliance

34. Section 10(1) of the FOIA and regulation 5(2) of the EIR requires that an information request should be responded to within 20 working days following the date of receipt. In this case a response was not provided until after that length of time. The council therefore breached section 10(1) of the FOIA and regulation 5(2) of the EIR.

35. Either party has the right of 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

36. 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.

37. 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 Andrew White)
Andrew White
Group Manager
Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF

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Hoylake RNLI Open Day and the top 7 stories this week

Hoylake RNLI Open Day and the top 7 stories this week

Hoylake RNLI Open Day and the top 7 stories this week

                                    

It’s a Bank Holiday today and although I’ve been down to the Hoylake RNLI Open Day today and taken plenty of photos which is a story on that can wait till tomorrow. Three years ago I wrote about the Area Forum where the beginnings of what is now the Hoylake Lifeboat Museum were discussed, which is one of the buildings that is open as part of the Open Day.

Wirral Council’s interest in the car park next to the Hoylake Lifeboat Museum was as you can read from this story in the Wirral News from 2010 was originally going to be sold off along with where the museum is after a decision by former Cllr Simon Holbrook (who was then Cabinet Member for Corporate Resources) in November 2010. However the decision was “called in” by councillors and reconsidered in December 2010, a letter from Hylgar Properties Limited being one of the factors that led to a changed decision. Despite brief mentions about that call in meeting, here and here on this blog, it seems I never did get round to writing up a detailed account of what happened at that call in meeting back in December 2010, however the minutes of what happened at the call in are on Wirral Council’s website.

As it is a bank holiday today, I will just be writing briefly today about what has been popular on this blog in the last week and taking the rest of the day off. The last week (August is traditionally a quiet month for politics) has seen 551 visitors to this blog viewing 1,247 pages. The top seven stories in order of popularity the last week have been:

1) Why did Wirral Council spend an incredible £1,872 on a London barrister to prevent openness and transparency?

2) The incredible £754,783.18 that Wirral Council councillors cost (plus amounts for the Mayor & Deputy Mayor)

3) Lyndale School Consultation Meeting: Julia Hassall “we’re not having straightforward consultation” (part 10)

4) Planning Committee on 8:5 vote approves plans for Tranmere Rovers training ground to move to Leasowe

5) Bidston Moss Retail Park: Five New Units Under Construction

6) Birkenhead Market Limited Accounts: Is This The Reason Behind Neptune’s Masterplan?

and

7) Government asks councils in England to bid for £16 million of money to tackle fraud

Note the Contact details for 66 Wirral Council councillors (2014) is in joint 7th place but as it is just for information I have not included it in the above list.

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Why did Wirral Council spend an incredible £1,872 on a London barrister to prevent openness and transparency?

Why did Wirral Council spend an incredible £1,872 on a London barrister to prevent openness and transparency?

Why did Wirral Council spend an incredible £1,872 on a London barrister to prevent openness and transparency?

                                                     

Treasury Building (Wirral Council), Hamilton Square, Birkenhead, 19th August 2014 (you can click on the photo for a more high-resolution version)
Treasury Building (Wirral Council), Hamilton Square, Birkenhead, 19th August 2014 (you can click on the photo for a more high-resolution version)

Yesterday on a sunny afternoon, I went to the Wirral Council building pictured above known as the Treasury Building to inspect various Wirral Council invoices. I was exercising an obscure right under s.15 of the Audit Commission Act 1998 c.18. This right means that for a few weeks each year, as an “interested person” you can inspect the accounts for the previous financial year that in the process of being audited by Grant Thornton. You can also inspect all books, deeds, contracts, bills, vouchers and receipts that relate to these accounting records and make copies of all or any part of the accounts and those other documents. This year (for Wirral Council) that period ran from 21st July to the 15th August, so sadly if you’re thinking of exercising this right you’ll now have to wait till next year to do so!

However I had put in my request during that brief time period for five areas I was interested in. I’ve briefly describe what those four areas were, the first was invoices from SCC PLC (which is a large IT company), the second and third batches were invoices for legal matters (solicitors, barristers, expert witnesses, court fees etc), the fourth were some general invoices and the fifth were various contracts (two of which were the Schools PFI contract and the Birkenhead Market lease).

The contracts aren’t ready yet, but the invoices were available for inspection yesterday and I also exercised my s.15(1)(b) right to copies. Just the copies of invoices comes to hundreds of pages of documents (which may take me a while to scan in). Some pages are more heavily redacted than others. However this blog post is going to concentrate on just one which is document 117 in one of the two legal bundles. The document (in the form I received it from Wirral Council) is below (you can click on the photo for a more readable version).

11KBW Invoice for appeal of an ICO decision notice (October 2013) Metropolitan Borough of Wirral (£1872) redacted
11KBW Invoice for appeal of an ICO decision notice (October 2013) Metropolitan Borough of Wirral (£1872) redacted

A bit of context is probably needed about this invoice first. 11KBW is a London-based chamber of barristers that specialise in employment, public and commercial law. You can find out more about them on their website. This particular invoice for £1,872 (including VAT) was for “perusing and considering papers, advising by email, telephone and writing and drafting grounds of appeal to an ICO decision notice”. Whereas the first bit of that is understandable, if you don’t know what an ICO decision notice is then I’d better explain.

If a person makes a Freedom of Information request to Wirral Council, then is not happy with the response, requests an internal review, then they’re not happy with the internal review they can appeal the decision to the Information Commissioner’s Office (known as ICO). The ICO prefer to deal with things informally, but if they can’t they will issue a “decision notice”. A decision notice is an independent view of ICO’s one way or the other on the FOI request and as to whether the body to whom it has been made has complied with the Freedom of Information legislation and sometimes also the Environmental Information Regulations.

Unless the body to whom the FOI request is made or the person making the request appeals the decision notice within 28 days, the body to whom the FOI request is made has to comply with the decision notice within 35 calendar days. Sometimes ICO agree with the body the FOI request is made to so no further action is required. Other times the decision notice compels the body (unless they appeal) to disclose the information. If the public body doesn’t comply with the decision notice within 35 calendar days then ICO can tell the High Court about this failure and it would be dealt with as a “contempt of court” issue.

Helpfully (unlike a lot of other court matters), ICO have a search function on their website for decision notices. As the invoice is for drafting grounds of an appeal (which has to happen within 28 days of the notice) a search for decision notices from the 27th September 2013 to the 25th October 2013 brings up three decision notices FS50496446, FS50491264 and FS50474741.

The first of those three (FS50496446) states in the summary “As the council has now provided a response, the Commissioner requires no steps to be taken.” so it’s not that one. The last sentence of the summary on FS50474741 states “This decision notice is currently under appeal to the Tribunal” (which is a little out of date as by now the tribunal has already reached its decision on that matter). Therefore this invoice is (by process of elimination) about the eight page decision notice FS50474741.

The decision notice goes into the detail about what the original FOI request (which you can read for yourself on the whatdotheyknow website) was about (made on the 4th February 2012), which is for correspondence between Wirral Council and DLA Piper UK LLP. Much of the correspondence is between DLA Piper Solicitors and Anna Klonowski Associates Limited and includes an amendment to the contract between AKA Limited and Wirral Council. The information also included Bill Norman (Borough Solicitor)’s advice to councillors on publication of Anna Klonowski Associate’s report which was previously published as an exclusive on this blog on December 12th 2011.

When the AKA report was published, the issue made the regional TV news (you can view a video clip of that below this paragraph) and a no confidence vote which removed both Cllr Steve Foulkes as Leader of the Council and the minority Labour administration. The Labour administration was replaced by a short-lived (~3 month) Conservative/Lib Dem one in the February of 2012. The whole matter was a very sensitive (and somewhat embarrassing) period in Wirral Council’s history (even more than the public inquiry into library closures was) and it’s probably somewhat understandable as to why Wirral Council didn’t want information as to what happened “behind the scenes” being released into the public domain. As far as I remember (and it was some years ago so I hope my memory is correct on this point), Wirral Council was paying DLA Piper to give legal advice to itself and AKA Limited. This was in relation to the inquiry of AKA Ltd started by Cllr Jeff Green into Martin Morton’s whistleblowing concerns (in the brief period when as a Conservative councillor he was Leader of the Council).

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However, in addition to the details of the decision notice, other information has been blacked out. The part at the top right where it states “professional fees of”, I think relates to a junior barrister called Mr Robin Hopkins who is also on Twitter. The reason behind this is that at the bottom of the invoice it states “PLEASE MAKE CHEQUES PAYABLE TO Mr Robin Hopkins” and his name also appears as the organisation name on the list of invoices Wirral Council publish of over £500 for October. On Wirral Council’s systems although a small number of invoices from barristers chambers come under the name of the barrister’s chambers, most appear using the barrister’s name as the organisation.

As to the name of the Wirral Council officer that the pro forma invoice is addressed to, it would seem most likely that this is Surjit Tour. Not only does his short name fit what is blacked out, but he’s also the Head of Service for this service area within Wirral Council. I don’t know whether he’d actually be the solicitor at Wirral Council giving instructions to the barrister on this issue (as there are over a dozen solicitors employed at Wirral Council). I’ve no idea whose signature it is on this invoice and there are three other places on the invoice where officers’ initials or names have also been blacked out.

When the appeal to ICO’s decision notice was heard at the First-Tier Information Tribunal you can read this post about it on Paul Cardin’s blog, there’s another write-up about it in Local Government Lawyer and a copy of the 16 page unanimous decision of the tribunal can be read here.

The invoice (partly revealed) with my educated guesses in green as to what’s behind the redactions is below. However it begs the question, why did Wirral Council redact this information and what have they got to hide? Or is it just a case of they’d prefer the press and public to forget about the entire Martin Morton/AKA issues which were compared to “Watergate” by Cllr Stuart Kelly? If they’d chosen not to appeal this decision wouldn’t that meant a saving of £1,872 that Wirral Council could have instead spent on education or social services? I thought that a Labour councillor (was it Cllr Phil Davies?) stated that the current Labour administration was “open and transparent”? Only as recently as June of this year wasn’t the Cabinet Member Cllr Ann McLachlan stating “the key problem here that we have a high volume of FOIs from a small number of people”? So do Wirral Council see the people making FOI requests as the problem rather than their own cultural attitudes towards openness and transparency?

Partially unredacted invoice relating to an appeal to ICO Decision Notice FS50474741 (Robin Hopkins of 11KBW) Metropolitan Borough of Wirral for £1872 (invoice 117)
Partially unredacted invoice relating to an appeal to ICO Decision Notice FS50474741 (Robin Hopkins of 11KBW) Metropolitan Borough of Wirral for £1872 (invoice 117)

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