Wirral Council show how “open and transparent” they really are
I received this letter today from Wirral Council’s Chief Executive Graham Burgess (links to scans of each page and the envelope it came in with a handwritten “PRIVATE” on it are below).
(Wirral Council logo)
Merseyside CH44 8ED
Tel: 0151-691 8589
Fax: 0151-691 8583
date 21 March 2014
to Mr J Brace
134 Boundary Road
my ref GB0075.DOC/DC/35.7
Dear Mr Brace,
I refer to your request for an Internal Review.
I have reviewed your request and also considered the information in question, namely the minutes of the Standards Working Group relating to this meeting held on 17 December 2013.
I am the Chief Executive and the Reviewing Officer when an FOI request is refused and the Council has relied on Section 36. As such I have taken each of the points you have raised and addressed them below:-
1) The minutes of the Standards Working Group have been provided to an FOI request previously, without claiming a FOI exemption (see Paul Cardin’s request here
Response – Each request is reviewed and answered in accordance with the Freedom of Information and any other associated legislation. If a document is already available in the public domain, then the Council will signpost the requestor to it. The report requested above by Mr. Cardin was already in the public domain.
2) Agenda items 3 (Disclosing Information Reports Under the New Standards Regime) and agenda item 4 (Review of the New Standards Regime) of the meeting referred to in 1) both included “deliberating on matters relating to the Council’s Ethical Framework and considering changes to the framework” yet was also published on Wirral Council’s website at http://democracy.wirral.gov.uk/documents/s50010511/Minutes%2004022013%20Standards%20Working%20Group.pdf (see Standards Committee meeting agenda of 18th March 2013 http://democracy.wirral.gov.uk/ieListDocuments.aspx?CId-127&MId=4203#AI21234.
Response – The information contained within the documentation which has been refused to you is not identical in nature to the information which was published at the hyperlinks you have highlighted above.
Once the Standards Working Group has completed its work, consideration will be given to the disclosure of the Minutes. The Working Group is currently undertaking important work and disclosure of the Minutes at this time would likely to have a “chilling effect” which “would inhibit the free and frank provision of advice”.
3) Surjit Tour is also the Monitoring Officer and therefore in this capacity would be advising the Standards Working Group meeting of the 17th December 2013. He states that the minutes cannot be supplied because they “would inhibit the free and frank provision of advice”. As he is the one advising the Standards Working Group this represents a conflict of interest. There are two qualified persons at Wirral Council able to give an opinion on a Section 36 exemption, Surjit Tour and the Chief Executive, Graham Burgess. Due to the conflict of interest outlined, it should have been the Chief Executive giving his opinion on the Section 36 exemption not Surjit Tour.
Response – I do not agree that Mr Tour had a conflict of interest when responding to your enquiry. As the Monitoring Officer it was appropriate and correct that he should be the person to answer and decide to rely on Section 36. It is then my role, as the Chief Executive, to act as Internal Reviewer in this particular case.
4) It is stated “there would likely to be a “chilling effect” which would inhibit the free and frank provision of advice or exchange of views between members of the Group, and disclosure would undermine the ability of the members of the Group and those advising the Group to express themselves openly.” As outlined in the minutes referred to in point 2, Members of the Standards Working Group are not referred to by name in the minutes, and therefore it is not possible from the minutes to ascertain the views of individuals in the Group. The only person referred to in the minutes of the previous meeting (by job description) is Surjit Tour. Due to the conflict of interest in giving a reasonable opinion that a Section 36 exemption applies in relation to his own advice, if a Section 36 exemption is claimed by Wirral Council in relation to this FOI request, it should have come from the other qualified person (the Chief Executive).
Response – As mentioned in my response to point 3, I do not agree with your view that Mr. Tour had a conflict of interest in giving a reasonable opinion.
5) It is stated in the response that “Reports from the Standards Working Group would be considered by the Council’s Standards and Constitutional Oversight Committee, which is subject to the access to information requirements.” The next Standards and Constitutional Oversight Committee following the Standards Working Group on the 17th December 2013 was the 6th January 2014. However a report from the Standards Working Group of the 17th December 2013 was not on the agenda of that meeting. The next Standards and Constitutional Oversight Committee after that was the 6th February 2014, however that meeting has been cancelled and postponed to the 24th February 2014. It is therefore wrong to imply that a report of the Standards Working Group meeting forms part of the agenda of the next Standards and Constitutional Oversight Committee meeting.
Response – Your comments have been noted.
6) Only qualified persons (the two at Wirral Council are Surjit Tour and Graham Burgess) can give an opinion on a Section 36 exemption. The opinion given finished with “Sent on behalf of Surjit Tour”; therefore it is unclear whether it is his opinion or the opinion of the person who is sending the communication on his behalf. If it is the latter then the person giving the opinion is not one of the two qualified persons to do so rendering it invalid.
Response – The reply contains the opinion of Mr. Tour; however the reply was sent from the email address of Jane Corrin and copied to the Council’s central FOI email address for monitoring purposes. As you have rightly stated it is only the Monitoring Officer or the Chief Executive of the Council who can make a decision with regards to the application of Section 36.
After giving due consideration to the request you made, the original response from Mr. Tour and also the points you raise in your request for an Internal Review; I have concluded the following:-
I concur with Mr Tour that the information you requested is exempt information by virtue of Section 36 of The Freedom of Information Act 2000. This is my considered and reasonable view as Section 36 can be relied on if disclosure would/would be likely to;-
(b) Inhibit the free and frank provision of advice or exchange of views; or
(c) Otherwise prejudice the effective conduct of public affairs
As you are aware, Section 36 requires the qualified person to give their reasonable opinion that disclosure would or would be likely to cause the types of prejudice or inhibition listed above. This was clearly stated in the original response you received. Guidance was also considered from the Information Commissioner’s Office, “prejudice to the effective conduct of public affairs (section 36), Version 2, 22 March 2013.
As was pointed out in the original response, the Standards Working Group is not a formal committee or sub-committee of the Council, it has advisory status only. I agree with the view taken by the Monitoring Officer that releasing the minutes of the Standards Working Group meeting of 17th December 2013, would indeed inhibit the free and frank provision of advice or the exchange of views.
The Group were considering and debating the Council’s Ethical Framework and given views as to whether any changes should be put in place with regard the framework. Members of such groups must be, I believe, given a ‘safe space’ for deliberation of these important issues.
My reasonable opinion is that the minutes should not be disclosed and I need to be satisfied, as Chief Executive, that there exists the opportunity for free and frank provision of advice/exchange of views within the Group to ensure sound decision making. I am of the opinion that to disclose the minutes would undermine the ability of members involved to engage in a free and frank discussion on important issues such as the Council’s Ethical Framework. I have considered the public interest test factors, given in the original answer in favour of disclosure and in favour of none disclosure. Having considered this test afresh, it is my considered and reasonable opinion that the reasons/argument previously articulated are valid and robust. I am satisfied that the public interest test in maintaining the exemption outweighs the public interest for disclosure.
If you remain dissatisfied with this response, then you have the right to complain to the Information Commissioner, whose address is
Information Commissioner’s Office.
Cheshire SK9 5AF
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