First-tier Tribunal (General Regulatory Chamber)
124. The General Regulatory Chamber hears a wide range of appeals on regulatory matters, for example charities, consumer credit, transport and appeals from decisions of the Information Commissioner. We do not currently charge fees for proceedings in this chamber, with the exception of appeals in relation to gambling licences. In these cases, the fee charged is based on the value of the licences that are in dispute. We are not proposing to change the fees for these proceedings.
125. In 2013–14 the estimated cost of the General Regulatory Chamber (including Gambling) was £1.6m. The fee income generated from Gambling proceedings (the only fee charging tribunal within the General Regulatory Chamber) was £11,600.
126. In the remaining jurisdictions within the General Regulatory Chamber, we have proposed one fee for an appeal decision on the papers and one fee for an oral hearing. Our proposal is to charge a fee of £100 to issue proceedings, which would entitle the claimant to a decision based on a review of the papers. The claimant may alternatively elect for an oral hearing, in which case a further fee of £500 would be payable. Based on current volumes, we estimate that this proposal would generate a cost recovery percentage of around 17% after remissions.
127. The fees will also apply to “reference” cases where cases are started in the first-tier Tribunal but have to be referred directly to the Upper Tribunal for a first instance hearing.
Questions
Question 14: Do you agree with the proposed fees for all proceedings in the General Regulatory Chamber: specifically £100 to start proceedings with a determination on the papers; and a further fee of £500 for a hearing? Please give reasons.
Question 15: Are there any proceedings in the General Regulatory Chamber that should be exempt from fees? Please give reasons.
I’d better explain a bit better what the above is about by explaining the process to making a FOI request.
You make a Freedom of Information Act request to a public body and if is turned down (whether in part or in full) you can ask the same public body for an internal review.
If at the internal review there is still information withheld and you feel that they shouldn’t have withheld the information you can appeal the internal review decision to the Information Commissioner’s Office.
If either the public body or the person making the FOI request disagree with the decision notice, they have 28 days to appeal the decision to the First Tier Tribunal (Information Rights) which is part of the General Regulatory Chamber.
Appeals can then be made of decisions of the First Tier Tribunal (Information Rights) on a point of law only to the Upper Tribunal.
The consultation is proposing that if someone (whether the public body or the person making the request) wishes to challenge an ICO decision notice by appealing it to the First Tier Tribunal (Information Rights) that there will be a charge of £100 if the decision is made on the papers and £500 if a hearing is required.
So what do readers think about this proposed change? Most of the appeals to ICO decision notices to the First Tier Tribunal (Information Rights) are by litigants in person, who unless they fall into one of the categories of people who don’t have to pay fees a fee of £100 or £500 may make them think twice before appealing a decision.
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Why after 2 years, 3 months and 19 days have Wirral Council U-turned on refusing a FOI request for minutes of a public meeting that they claimed was vexatious?
Why after 2 years, 3 months and 19 days have Wirral Council U-turned on refusing a FOI request for minutes of a public meeting that they claimed was vexatious?
ICO Information Commissioner’s Office logo
Wirral Council have over the years discussed the issue of Freedom of Information at many public meetings. I wanted to write about my experience of one request where it took 2 years and 3 and a half months for Wirral Council to release some of the information I requested.
Way back on the 29th March 2013 I made a FOI request to Wirral Council for minutes of various panels, statutory committees, advisory committees and working parties that councillors are on.
I asked merely for the minutes of the meeting held before making the request. One of these (numbered 5 on my list) was the minutes of the Standing Advisory Committee on Religious Education (SACRE).
This is what happened next.
20 working days went past and Wirral Council didn’t respond to the request, so on the 29th April 2013 I requested an internal review of Wirral Council’s lack of response.
On the 30th April 2013 Wirral Council replied refusing the request based on section 12 and claimed it would take longer than the 18.5 hours allowed to respond to the request.
I clarified what appeared to be a misunderstanding in the way I had phrased the original request and requested an internal review of this decision disputing that it would take over the 18.5 hour limit.
On the 14th August 2013 I appealed this decision to the Information Commissioners Office (ICO).
On the 19th June 2014 Wirral Council amended its response. It still refused this part of the request but now decided to amend its reason for withholding the information. It was no longer withheld relying on section 14 (vexatious or repeated requests) but back to section 12 (exemption where cost of compliance exceeds appropriate limit). The parts of the request that could be described as environmental information were refused using Regulation 12(4)(b) of the Environmental Information Regulations 2004 as being “manifestly unreasonable”. This is the EIR equivalent of the Freedom of Information Act’s vexatious exemption.
The 9 page decision notice said that Wirral Council had breached section 10(1) of the Freedom of Information Act 2000 and regulation 5(2) of the Environmental Information Regulations 2004 by not responding to this request within the first 20 working days of making it.
In addition to this it had breached s.16(1) of the Freedom of Information Act 2000 and regulation 9(1) of the Environmental Information Regulations 2004 which require Wirral Council to provide advice and assistance to those making requests.
Finally the decision notice required Wirral Council to issue a fresh response to this request within 35 calendar days of the 8th September 2014 that did not rely upon the exemption in section 12 of the Freedom of Information Act 2000 (cost grounds) or Regulation 12(4)(b) of the Environmental Information Regulations 2004 (that the environmental part of the request was “manifestly unreasonable”.
On the 4th November 2014 Wirral Council released redacted minutes of the Special Advisory Committee on Religious Education’s meeting of the 7th February 2013. Apart from the councillors on the committee anybody else on the committee had their name replaced by “name redacted”.
The minutes now looked like this:
Name redacted was proposed by Councillor Clements and seconded by Name redacted. By a unanimous show of hands Name redacted was duly elected to the post of Vice Chair.
Name redacted nominated Name redacted for the post of Vice Chair and this was seconded by Name redacted. By a unanimous show of hands Name redacted was duly elected to the post of Vice Chair.
I consider that part of the requested information is exempt information under Section 40 (2) of the Freedom of Information Act 2000, in that the Complainant is asking for information which is personal data, in respect of which he is not the data subject. I consider that the disclosure of the requested information would contravene the second data protection principle that personal data shall be obtained only for one or more specified and lawful purposes and shall not be further processed in any manner incompatible with that purpose or those purposes. Certain individuals named in the Minutes dated 7 February 2013 (not including Councillors) would have a legitimate expectation that their personal data would not be further processed in a manner incompatible with the specified and lawful purposes of the Standing Advisory Council for Religious Education. I consider that the Complainant’s request for information can be met by giving him a redacted copy of the minutes dated 7 February 2013, which redacts the names of certain individuals and these are attached.
On the 12th November 2014 I requested an internal review of this (also challenging other information they had withheld). This is what I stated about this part of the request:
“5. Standing Advisory Committee on Religious Education (SACRE)
This relates to the minutes of the meeting held on 7th February 2013.
By statute this meeting meets in public. Another part of statute allows me to request the names and personal addresses of those on the committee. Other local authorities routinely publish the minutes of these SACRE public meetings. They do not redact the information you have.
My internal review on the redactions is then on the basis that:
a) the minutes relate to a meeting held in public
b) because of the above there is no legitimate expectation of privacy
You state “would have a legitimate expectation that their personal data would not be further processed in a manner incompatible with the specified and lawful purposes of the Standing Advisory Council for Religious Education.”
I will give more detail as to the lawful purposes of the SACRE referred to in relation to meeting minutes.
“7. (1) After a meeting the following documents shall be available for inspection by members of the public at the offices of the authority until the expiration of six years beginning with the date of the meeting, namely,—
(a) a copy of the agenda for the meeting;
(b) a copy of so much of any report for the meeting as relates to any item during which the meeting was open to members of the public; and
(c) a copy of so much of the minutes of the meeting as relates to any such item.”
The minutes of the meeting have been held in the last 6 years. Therefore I have an existing right of inspection to a copy of the minutes in unredacted form. Therefore the names of people in the minutes cannot have the private and personal nature that you ascribe to this information.
Secondly in addition to the names, the Group (ranging from A to C) of the individuals present has also been removed. Unless there’s only one representative from that group, merely the group letter
cannot be used to identify an individual.
Therefore I am asking for an internal review based of the information that has been withheld not being provided.”
No response was received in response to the internal review request, so I complained to ICO again.
On the 30th April 2015 (nearly 6 months after the internal review request that are supposed to take a maximum of 40 days) Wirral Council responded.
Today (over 8 months since the last internal review request that they claimed was “vexatious”) Wirral Council got back in touch.
They now want to “amend their response”. Apparently the bit about the SACRE meeting minutes was not vexatious. They no longer seek to rely on the exemption contained in section 40 of the Freedom of Information Act 2000.
However, this change of heart of Wirral Council wasn’t just about the part of the request for a meeting of the Special Advisory Council on Religious Education. Their response to the part of the request for minutes of a meeting of the Hilbre Island Nature Reserve Management Committee was modified as follows:
Environmental Information Regulations 2004
Part 21
Hilbre Island Nature Reserve Management Committee
I enclose an extract from an email provided to the Information Management Team which was as follows:-
“There are no minutes from 2013 the Hilbre Island Nature Reserve Management Committee as the present Committee was formed in March 2014.”
This is the reason that the council responded to your original request that it did not hold any information
I asked a councillor on Twitter about whether the Hilbre Island Nature Reserve Management Committee existed prior to 2014.
Two councillors were kind enough to reply to my question. Cllr Chris Carubia stated “From the discussions today I know it has been in existence for over 5 years at least”.
Cllr Pat Williams replied, “Yes I was a proud member for a number of years.”
Personally I believe the two Lib Dem councillors (one of whom was on the Hilbre Island Nature Reserve Management Committee) rather than Wirral Council’s officially stated position and I think I should draw to the attention of the Information Commissioner’s Office how their view differs from what Wirral Council states.
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Incredible: Why did ICO find Wirral Council twice broke the law by taking too long to reply to 2 requests?
Incredible: Why did ICO find Wirral Council twice broke the law by taking too long to reply to 2 requests?
ICO Information Commissioner’s Office logo
A bit like the experience I had recently of waiting ages for a bus in Liverpool recently, only for four buses back to back to turn up, the Information Commissioner’s Office have in the last fortnight issued two decision notices involving FOI requests to Wirral Council.
The decision notice states “As the information was disclosed outside the 20 working day timescale the Commissioner has concluded that the Council breached the requirements of regulation 5(2). ”
I made the request on the 26th January 2015. Wirral Council ignored my request, so on the 24th February 2015 I requested an internal review. Wirral Council responded to the internal review on the 23rd March 2015 stating it had the information but was withholding it based on a regulation 12(5)(e) exemption.
“(5) For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that its disclosure would adversely affect
(e) the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest;”
“Following your complaint to the Information Commissioner’s Office, the Council has decided to reverse its position, having previously relied on the exception contained in Regulation 12 (5) (e) of the Environmental Information Regulations 2004. I do not consider that releasing the information would now adversely affect the legitimate economic interest of a third party. The address of the property, which you have requested is 13 Thorneycroft Street, Birkenhead. I have copied this response to the Information Commissioner’s Office.”
As mentioned in my opening sentence, I’m also aware of a decision notice involving a Freedom of Information request that’s been issued recently that hasn’t yet been published on ICO’s website.
“2. The Commissioner’s decision is that the Council has breached section 10(1) of FOIA by failing to respond to the request.
3. The Commissioner requires the public authority to take the following steps to ensure compliance with the legislation.
The Council should inform the complainant whether the requested information is held. If the information is held it should provide it to the complainant or else issue a refusal notice in accordance with section 17 of FOIA.
4. The public authority must take these steps within 35 calendar days of the date of this Decision Notice. Failure to comply may result in the Commissioner making written certification of this fact to the High Court (or the Court of Session in Scotland) pursuant to section 54 of the Act and may be dealt with as a contempt of court.”
and
“9. On receipt of the complaint the Commissioner contacted the Council to remind it of its duty to respond to requests for information within 20 working days and to ask that it respond to the complainant. Neither the complainant nor the Commissioner received a response.”
as well as
“11. The complainant made his request for information to the Council on 6 May 2014 but has failed to receive a response. The Council has clearly exceeded the 20 working day limit very significantly and therefore the Commissioner has found that the Council breached section 10(1) in its handling of the request.”
Certainly the common theme running through the two decision notices is Wirral Council exceeding the time limits in the legislation on responding to requests.
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Wirral Council U-turn on refusal of request for information after complaint to the Information Commissioner’s Office
Wirral Council U-turn on refusal of request for information after complaint to the Information Commissioner’s Office
Last year, during the 2013/14 audit I requested various information on various payments Wirral Council has made to legal firms. One of these was an invoice for £700 for conveyancing done by DLA Piper UK LLP (a copy of which is below).
Wirral Council invoice DLA Piper UK LLP conveyance £700 7th August 2013
As you can see above it’s for a BACS payment (although the payments over £500 list this as a CHAPS payment) for £700, split into £200 for a contribution towards sewers (although the rest of what the £200 is for can’t be made out due to bad handwriting) and £500 to do with the purchase of the freehold title.
If you look at the image above you’ll find the address of the property is blacked out. Section 15 of the Audit Commission Act 1998 allow Wirral Council to redact information if it relates to a member of their staff (or payments or other benefits made to their staff connected with their employment) or to withhold personal information if the external auditor agrees to it.
So going back to the PR1 form above I wanted to know what the address that this £700 for conveyancing spent by Wirral Council was, so back on the 26th January 2015 I asked using the Freedom of Information Act for the address.
By the 24th February 2015, having received no reply to my request of the 26th January 2015 within the 20 days Wirral Council have to respond to FOI requests, I requested an internal review because of the lack of response.
She then went on to refuse the request using an exception in Regulation 12(5)(e) which states:
“the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest;”
The reasons she gave for refusing the request were:
“in that a public authority may refuse to disclose information to the extent that its disclosure would adversely affect the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest. I have had regard to the guidance issued by the Information Commissioner’s Office, “Confidentiality of commercial or industrial information (regulation 12 (5) (e) Version 1.2. I consider that the following applies to the requested information in the context of the other information included in the payment requisition fund:-
The information is commercial or industrial in nature
Confidentiality is provided by law
The confidentiality is protecting a legitimate economic interest
The confidentiality would be adversely affected by disclosure.
I consider that the information relates to the commercial activity of a third party. I also consider that confidentiality is provided by law in that it is imposed on the Council as a public authority by the common law of confidence and contractual obligation. I consider that the confidentiality is protecting a legitimate economic interest. The First Tier Tribunal (Information Rights) confirmed in Elmbridge Borough Council v. Information Commissioner and Gladedale Group Ltd (EA/2010/0106, 4 January 2011) that to satisfy this element of the test, disclosure of the confidential information would have to adversely affect a legitimate economic interest of the person the confidentiality is designed to protect. I consider that disclosure of the requested information would adversely affect the legitimate economic interest of the third party and also that of the Council.
This exception is subject to the public interest test.
Public interest factors in favour of disclosure
Promotion of transparency and accountability of public authorities
Public interest factors in maintaining the exception
Disclosure would adversely affect the legitimate economic interest of a third party and interfere with commercial bargaining in the context of existing or future negotiations
Disclosure of the requested information would also affect the bargaining position of the Council with third parties.
I consider that in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information. I am therefore refusing your request for information on the basis that the exception contained in Regulation 12 (5) (e) of the EIR applies.”
On the 25th March 2015 I appealed Wirral Council’s refusal to the Information Commissioner’s Office.
Today Wirral Council reversed their position and stated:
“Following your complaint to the Information Commissioner’s Office, the Council has decided to reverse its position, having previously relied on the exception contained in Regulation 12 (5) (e) of the Environmental Information Regulations 2004. I do not consider that releasing the information would now adversely affect the legitimate economic interest of a third party. The address of the property, which you have requested is 13 Thorneycroft Street, Birkenhead. I have copied this response to the Information Commissioner’s Office.”
Now I know the address is 13 Thorneycroft Street, Birkenhead, I know what this payment for conveyancing is for. The properties in this road as far as I remember had been demolished by the date that this payment to DLA Piper UK LLP for conveyancing happened in August 2013.
In August 2013, Keepmoat were granted planning permission for 125 new houses here and have since built them and sold them on. In fact 13 Thorneycroft Street, Birkenhead doesn’t exist any more, it’s either part of the public open space at the back of the Laird Street Baptist Church or an off-street car parking space for one of the new properties.
So what was the “legitimate interest of a third party” that Wirral Council claimed it was protecting by not supplying the address? How on earth does giving this address interfere with Wirral Council’s “commercial bargaining in the context of existing or future negotiations”?
EXCLUSIVE: Wirral Council admit disclosure of NI numbers, dates of birth & names of nearly 200 staff was a mistake
EXCLUSIVE: Wirral Council admit disclosure of NI numbers, dates of birth & names of nearly 200 staff was a mistake
Surjit Tour (left) at a recent meeting of Wirral Council’s Standards and Constitutional Oversight Committee
The background to this story is that last year Wirral Council accidentally divulged to me around two hundred people’s names, dates of birth, national insurance numbers, job titles and whether they were in the Merseyside Pension Fund (that Wirral Council administers) or not.
This is my response to Wirral Council (and ICO on this matter).
Dear Surjit Tour, Caroline Flint (ICO) and others,
Thank you Mr. Tour for your letter of 28th April 2015 (your reference ST/CG) and the email from ICO’s Caroline Flint dated 30th April 2015 (ICO case reference number RFA0568370). As both communications cover the same topic I am writing this joint response in reply.
I will deal first with an error in the response in the email from ICO. The first sentence in that email states “Thank you for raising your concern with us about Wirral Metropolitan Borough Council’s (Wirral MBC’s) handling of your personal data.”
None of the personal data that this matter relates to is about myself.
Moving to Mr. Tour’s letter of the 28th April 2015, paragraph 2 correctly states that I requested “eight lengthy contracts/leases” (one of which is the PFI contract with Wirral Schools Services Limited that this matter relates to).
Although not implicitly stated, it is implied that I was provided with eight lengthy contracts/leases and that this request “did impose a considerable strain on the officers”.
However four were not provided (the BAM Nuttall contract came into effect during the 2014/15 financial year, the development agreement (dated 9/1/2008) and bond (dated 6/10/2008) with Pochin Land and Development Limited (relating to the Birkenhead ASDA Compulsory Purchase Order) was refused and so was Wirral Council’s agreement with Neptune Developments with regards to the Birkenhead Masterplan proposals).
Two leases were provided (I would estimate each at being around 200 pages long). Two contracts were also provided (including the PFI contract) which are each around 500-1000 pages long. In the case of one of the leases (the New Brighton Marine Point lease) two entire copies of the lease were provided (when I only asked for one). As one of the two copies provided of that lease has a Land Registry official copy stamp on it (so presumably the copying was done by Land Registry) I would respectfully point out that the “considerable strain on the officers” referred to in your letter in making a second copy of that lease (then providing a second copy of that lease to myself with the Land Registry copy) was unnecessary.
In the last sentence of your letter you refer to Regulation 9 of the Accounts and Audit (England) Regulations 2011 which requires the documents to be made available for public inspection twenty working days before the date appointed by the auditor for local government electors to exercise their rights to either ask questions or make an objection.
For the 2013/14 audit, this date was the 18th August 2014. Therefore in order to comply with the regulations the documents should have been made available in the twenty working days leading up to the 18th August 2014 (which was the 21st July 2014 to the 15th August 2014).
As specified in your letter the PFI contract was available for inspection by myself on the 12th September 2014 (a month later than the timescale in the legislation you refer to). The copy of the PFI contract I was given on the 12th September 2014 was incomplete and it was the following month before I received the missing pages of the contract (which was after the accounts for that year had been closed by the auditor).
There were similar problems with the member expense forms as those given to me in September 2014 were also incomplete (or related to the wrong financial year) with the rest given to me in October 2014.
Therefore as the information was provided a month (or in some cases two months) later than the legislation specified I dispute your assertion that “The difficulties were compounded by the short timescales permitted by Regulation 9 of the Accounts and Audit (England) 2011 to produce the documents you had requested that related to the accounts of the Council”.
Had the documents been open for inspection and I had received copies prior to the 18th August 2014 (in compliance with the regulation you refer to) I would agree with you, however they were not.
I refer you to one of the admission agreements in the PFI contract specifically Schedule 19, Part 3, page 4/5 of the PFI Contract:
“3 (i) The Administering Authority shall from the date referred to in paragraph (ii) of this clause admit to participate in the benefits of the Scheme every employee of the Transferee Admission Body –
(a) whose name appears in the List annexed to this Agreement where he is identified as being a member of the Scheme by virtue of being an employee of the Administering Authority (hereinafter referred to as “the List”) or
(b) whom, by notice in writing given to the Administering Authority, the Transferee Admission Body may from time to time nominate provided that any person so nominated must be eligible to become a member of the Scheme.”
The Administering Authority referred to is Wirral Council. Therefore the list of names, dates of birth, job descriptions, NI numbers is of former Wirral Council staff whose employer was changed from Wirral Council to that of the PFI contractor.
You state in the second paragraph on page 3 “The amount of any such deficit would be determined by such factors as salary and age of the employee”. However the list does not include salary details of employees. Therefore as this information does not form part of the admission agreement or annexed list I dispute your statement that “That information would therefore be relevant to any assessment of the financial risk to the Council brought about by the PFI Contract.”
I might also point out that the admission agreement refers to a bond or indemnity with an insurer (Schedule 18 Parts 3 pages 14-17) to cover this sort of situation which reduces the risk of such liabilities falling on Wirral Council. Unfortunately the name of the insurer is not provided on the copy of the contract I have but the admission agreement states this insurance is to a limit of £67,000 (for that admission agreement which is one of three in the contract).
As I am publishing this response to ICO and Mr. Tour, I am also publishing the email from ICO that it refers to and the letter from Mr. Tour.
I have made a determination as data controller (see s.32 of the Data Protection Act 1998) that having regard to the special importance of the public interest in freedom of expression, the fact that I’m publishing my response (which could lead to confusion unless the email from ICO and letter from Wirral Council is also published at the same time), ICO’s view that Wirral Council breached the Data Protection Act 1998 as well as other reasons, that it is in the public interest for these documents to be published.
Finally, although I appreciate your point about whether s.34 of the Data Protection Act 1998 applies to the list is a matter for Wirral Council and ICO to come to a view on, at the very least there appears (from my perspective) to have been maladministration on the part of Wirral Council.
Providing documents requested during the audit outside the timescales you referred to in your letter and indeed in some cases after the accounts were closed prevented me from exercising my right to object to the auditor or to ask questions of the auditor before the accounts were closed at the end of September 2014.
As you are Monitoring Officer for Wirral Council, I draw your attention to section 5A of the Local Government and Housing Act 1989 and the duty of a Monitoring Officer to write a report (circulated to all councillors, the Chief Executive and the Chief Financial Officer) and for this report to be considered at a future Cabinet meeting within a set time period if there has either been a contravention of any enactment or rule of law by the authority or maladministration. I therefore await your response as to whether you will be writing such a report.
from: casework@ico.org.uk
to: john.brace@gmail.com
date: 30 April 2015 at 15:42
subject: Data Protection Concern: RFA0568370[Ref. RFA0568370]
30 April 2015
Case Reference Number RFA0568370
Dear Mr Brace
Thank you for raising your concern with us about Wirral Metropolitan Borough Council’s (Wirral MBC’s) handling of your personal data.
We want to know how organisations are doing when they are handling information rights issues. We also want to improve the way they deal with the personal information they are responsible for. Reporting your concerns to us will help us do that.
Our role is not to investigate or adjudicate on individual concerns but we will consider whether there is an opportunity to improve the practice of the organisations we regulate. We do this by taking an overview of all concerns that are raised about an organisation with a view to improving their compliance with the Data Protection Act 1998 (DPA).
From the information provided to us it does appear that Wirral Council has breached the DPA as it has acknowledged disclosing third party data in error. Wirral MBC has stated they have recovered the information disclosed inappropriately. They have also specified that requests made under the Audit Act in the future should not include any personal information which would enable particular individuals to be identified unless the requester can demonstrate that the disclosure is in the public interest to the extent that it should override the individual’s right to privacy.
It is now Wirral Metropolitan Borough Council’s responsibility to explain to us how it intends to improve its information rights practices in relation to reducing the possibility of such inappropriate disclosures in the future. Although we do not intend to write to you again, we will keep the concerns raised on file. This will help us over time to build up a picture of Wirral MBC’s information rights practices.
Thank you for bringing this matter to our attention.
If you are dissatisfied with the service you have received, or would like to provide us with feedback of any kind, please let me know. Further information can also be found on our website by following the following link https://ico.org.uk/concerns/complaints-and-compliments-about-us/complain-about-us/
Yours sincerely
Caroline Flint
Case Officer
01625 545 258
The ICO’s mission is to uphold information rights in the public interest, promoting openness by public bodies and data privacy for individuals.
If you are not the intended recipient of this email (and any attachment), please inform the sender by return email and destroy all copies. Unauthorised access, use, disclosure, storage or copying is not permitted.
Communication by internet email is not secure as messages can be intercepted and read by someone else. Therefore we strongly advise you not to email any information, which if disclosed to unrelated third parties would be likely to cause you distress. If you have an enquiry of this nature please provide a postal address to allow us to communicate with you in a more secure way. If you want us to respond by email you must realise that there can be no guarantee of privacy.
Any email including its content may be monitored and used by the Information Commissioner’s Office for reasons of security and for monitoring internal compliance with the office policy on staff use. Email monitoring or blocking software may also be used. Please be aware that you have a responsibility to ensure that any email you write or forward is within the bounds of the law.
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Department of Transformation and Resources
Joe Blott Strategic Director for Transformation
and Resources
Town Hall, Brighton Street
Wallasey, Wirral
Merseyside, CH44 8ED
DX 708630 Seacombe
Website: www.wirral.gov.uk
date 28 April 2015
to John Brace
Jenmaleo
134 Boundary Road
Bidston
Wirral
CH43 7PH
my ref ST/CG
service Legal and Member Services
tel 0151 691 8569
fax 0151 691 8482
email surjittour@wirral.gov.uk
Dear Mr Brace
DISCLOSURE OF PERSONAL INFORMATION IN ADMISSION AGREEMENT FORMING PART OF THE COUNCIL’S PFI CONTRACT
I refer to your letter of 19 January and to our subsequent meeting which culminated in your return of the personal information which was inadvertently disclosed to you when a copy of the PFI Contract was provided to you on 12 September 2014.
You will recall that in a written request dated 25 July 2014 you had exercised your right under Section 15 of the Audit Commission Act 1998 (“ACA”) to inspect and receive copies of over 300 invoices, eight lengthy contracts/leases and all member expense forms for 2013 and 2014. These documents related to the Council’s accounts for 2013/14.
The request for those documents did impose a considerable strain on the officers who were required to locate and copy those contracts after redacting commercially sensitive and personal information from those documents in accordance with the requirements of the Data Protection Act 1998 and Article 8 of the European Convention on Human Rights. Article 8, as you may know, requires a public authority to show respect for a persons private life and not to interfere with that right except as is in accordance with the law and is necessary (amongst other things) in the interests of the economic wellbeing of the country or for the protection of the rights and freedoms of others.
I should emphasise that the non-redaction of the personal pension information was not intentional. The information was overlooked amongst the thousands of pages of the documentation which you had requested under Section 15 of the ACA. The difficulties were compounded by the short timescales permitted by Regulation 9 of
www.wirral.gov.uk (LGC logo) Awards 2015 Winner Most Improved Council
the Accounts and Audit (England) 2011 to produce the documents you had requested that related to the accounts of the Council also by the sickness absence of one of the Council’s officers who was dealing with your request.
I have looked carefully into the legal consequences of the inadvertent disclosure of the personal information in the PFI Contract and have indeed taken Counsel’s advice on the matter. My conclusions are set out below.
Section 34 of the Data Protection Act 1998 contains an exemption from the requirement to comply with the non-disclosure provisions of the Act if any personal data consists of information which the Data Controller is obliged to make available to the public under any enactment.
The non-disclosure provisions are defined in Section 27 of the same Act and include the first data protection principle which requires Data Controllers to process personal data both fairly and lawfully.
If however the processing is necessary for compliance with any legal obligation to which the Data Controller is subject, then the requirement to process personal data fairly and lawfully does not apply.
The applicable legal obligation is Section 15 of the ACA which gives a right to any local government elector to inspect all contracts relating to the accounts which are to be audited. There is an exception for information which can identify a particular employee of the Council and also for personal information outside that description ie non-employees of the Council if the information enables a particular individual or individuals “to be identified and the Council’s Auditor considers that it should not be inspected or disclosed”.
In the particular circumstances of the PFI Contract the Auditor had not been requested to authorise non-disclosure. The volume of the documents running into several thousands of pages which you had requested rendered it simply impracticable within the short timescales to seek the Auditor’s opinion on whether the personal information should be disclosed. You must remember the context in which the personal information in the PFI Contract was inadvertently disclosed. It was one of many documents that had to be sifted for personal information and commercially sensitive information.
The advice I have received is that Section 15 of the ACA should be interpreted in such a way that the Auditor’s prior consent to non-disclosure is not required where it would be impracticable to obtain that consent eg because of the volume of documents required to be submitted to him in the short period of time allowed by the Legislation for production of contracts which relate to the Council’s accounts.
It does not of course follow that the Council’s duty not to interfere with Article 8 Rights of the individuals named in the Admission Agreement of the PFI Contract automatically overrides your right as a local government elector to see that information if it formed part of the contract which you were entitled to inspect.
2
There is a public interest that is to be considered which is that the local government elector or indeed a member of the public should normally enjoy full disclosure of information which is relevant to the Council’s true financial position and which would enable them possibly to detect any wrong doing by the Council or its employees.
In this regard I would draw your attention to Schedule 2 Part 3 paragraph 11 of the Local Government Pension Scheme Regulations 2013 which imposes an obligation on the Council to make a copy of an Admission Agreement available for public inspection at its offices. Details of the employees of the PFI Contractor who had been transferred to the contractors employment from the Council under the Transfer of Undertakings (Protection of Employment) Regulations are relevant to an assessment of the Council’s financial position. Under the Local Government Pension Scheme Regulations 2013 if a contractor were to default in his obligations to make pension contributions in respect of those employees or were to become insolvent, the Council would have to meet any deficit in the Pension Fund that arose as a result. The amount of any such deficit would be determined by such factors as salary and age of the employee. That information would therefore be relevant to any assessment of the financial risk to the Council brought about by the PFI Contract.
Furthermore such employees of the PFI contractor are only entitled to remain in the Local Government Pension Scheme if they continue to be employed in connection with the provision of the services comprised in the PFI Contract. Members of the public would need to know the identities of the contractors employees who were admitted to the Pension Scheme under the Admission Agreement in order to check whether they were continuing to work on the PFI Contract and therefore still entitled to remain in the Local Government Pension Scheme with the attendant financial risk to the Council and thereby council tax payers if the PFI contractor were to default in payment of pension contributions or become insolvent.
If therefore that personal information had been drawn to my attention l would have had to weigh in the balance the public interest in disclosing information relating to the Council’s financial position and the identity of employees who were only entitled to remain in the Pension Scheme whilst they remain employed on the PFI Contract, against the invasion of those members privacy if their identities, dates of birth, and national insurance numbers were made known to you.
I have to say that if I had been called upon to make that decision I would have redacted the personal information and not disclosed it to you unless you had been able to satisfy me that you required that information in circumstances which related to those aspects of the public interest to which l have referred above.
It is evident from the contents of your letter of 19 January and our subsequent meeting that you yourself do not believe that the public interest in disclosure of the identities of the members of the Pension Scheme in the PFI Contract was more potent than the respect which the Council is required to show for their privacy under Article 8. Your reasons for seeking disclosure of the PFI Contract had nothing to do with your concern over the Council’s financial exposure to potential deficits of PFI contractors in the Local Government Pension Scheme or to any concerns that the PFI employees who had been allowed to retain membership of the Local Government Pension Scheme were abusing that Scheme by retaining their membership when they were no longer working on the PFI Contract. You have acted responsibly by returning that personal information to me because you recognise that it did not serve the purpose you had in inspecting the PFI Contract in relation to the Council’s accounts for 2013/2014.
3
In future I propose to ensure that future requests to inspect documents under the ACA should not include any personal information which would enable the identity of particular individuals to be ascertained unless you (or any person wishing to inspect the accounts) can demonstrate that the disclosure of that information is in the public interest to the extent that it should override the individuals right to privacy.
Finally I should add that as from 1 April 2015 Section 15 of the Audit Commission Act 1998 has been replaced by Section 26 of the Local Audit and Accountability Act 2014. Under that Act there is no longer a requirement for the Council to seek the prior consent of the Auditor before withholding any personal information in the documents relating to the Council’s accounts which a local government elector is entitled to inspect. It is a recognition by Parliament that the prior involvement of the Auditor is not workable having regard to the short timescale for inspection of the documents and the often voluminous nature of those documents. There are however transitional provisions which mean that the 1998 Act will continue to apply to the inspection of accounts for the year 2014/15.
I am sending a copy of this letter to the Information Commissioner so that he is made fully aware of the Council’s investigation into your complaint and the complicated legal framework within which the Council has to work particularly when it is confronted by a request from the public to inspect a large volume of documents.
Yours sincerely and signed on behalf of Surjit Tour Head of Legal and Member Services
(signature of Jane Corrin)
Jane Corrin
Information and Central Service Manager
Transformation and Resources
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