What was in the 11 A4 page witness statement of Surjit Tour (Wirral Council) about a Freedom of Information request for the minutes of a meeting of the Headteachers’ and Teachers’ Joint Consultative Committee (EA/2016/0033)?
At the outset I will make four declarations of interests.
1) I am the Appellant in this case (EA/2016/0033).
2) My wife was my McKenzie Friend in case EA/2016/0033.
3) I made the original Freedom of Information request on the 29th March 2013.
4) I am referred to by name (Mr. Brace) in paragraphs 1, 5, 6, 8, 9, 11, 13, 14 and 15 of the witness statement of Surjit Tour.
5) My profession ("local press") is referred to in paragraph 27.
Line breaks are indicated by a double horizontal line break. A picture of Surjit Tour at a public meeting of Wirral Council’s Coordinating Committee from the 15th June 2016 is below so people reading know who I’m referring to. I have included his signature, typed name and handwritten date at the end of the witness statement as an image.
I will point out (in case you’re wondering why it has taken nearly three years to get to that point) that this request has also been the subject of two other ICO decision notices FS50509081 and FS50569254.
So far Wirral Council has stated that the information requested would cost too much (section 12), that to give me the information would be prejudicial to the effective conduct of public affairs (section 36), that they class that doing an internal review of that decision as vexatious (section 14) and now finally when all of those prior decisions have been proven to be flawed, they withheld some of the information requested claiming it’s personal information (section 40).
My feeling about this is that Wirral Council, who refer to their approach in public as “open and transparent” have tried to engage in attrition warfare with myself and the regulator ICO over this request.
So what did I request that was released a fortnight ago? One document was minutes of the Members’ (Members’ means Councillors’) Equipment Steering Group meeting held on the 7th February 2013. The other document was minutes of the Members’ Training Steering Group held on the 19th March 2013.
Quite what is in these two documents that requires a nearly three year cover up about their contents, I’m not sure. The scanned pages Wirral Council have supplied for the meeting of the Members’ Equipment Steering Group and the Members’ Training Steering Group are unfortunately scanned at a low resolution which can make them hard to read. So I will reproduce them both below starting with the Members’ Equipment Steering Group. As that mentions audio recording and webcasting of committee meetings I will declare an interest.
The part of this request that relates to the minutes of a meeting of the Headteachers and Teachers Joint Consultative Committee I have appealed to the First Tier Tribunal (Information Rights) and am at the stage of awaiting ICO’s response to my appeal.
Actions from Members’ Equipment Steering Group Meeting held on 7 February 2013
Actions from the last Meeting
I Pads had been discounted at the last meeting.
Members’ Homepage and Toolkit – Homepage
Members would consider the proposed content and come back to XXXXXXXXXXXX with any suggestions for inclusion.
The proposed detail of the Members’ Toolkit was endorsed and XXXXXXXXXXXX would progress it.
Councillor Equipment Device Options XXXXXXXXXXXX would obtain a price for the following devices:
430 i 5
430 i 3
A recommendation will be made to the Cabinet subject to price and specification
Councillor Equipment Printer Options
The preferred printer was HP Office Jet 8000. In exceptional circumstances only would a Member’s own printer be connected to the network.
Wireless in Wallasey Town Hall
All Committee Rooms in the Town Hall would have wifi facilities by the time Members were in possession of their new IT kit.
Officers will look at the possibility of Members being able to receive emails on smart phones via wifi.
Councillor Equipment Rollout Timetable – Personally owned Ipad
A system would be purchased, configured and installed by IT Services to allow Members to use their own Ipads.
This was an option. Members will keep their existing bag.
This was an option.
– Telephone Handsets
Members would keep their existing handsets.
New furniture would not be purchased
– Modern.gov Application
Modern.gov could provide an Application so that Personal Devices could access "Exempt Items" at a cost of £3000. This would not be taken up
– Political Offices
Office staff would not be included in the new equipment roll out.
– Windows XP and Office 2010
– Broadband Choices
– Further Members’ Survey
Councillor Case Management Systems
Use of Personal Electronic Devices
Use of Councillors own equipment
iPad and HP Slate Autumn Trial
Audio Recording and Webcasting of Committee Meetings
Date and Time of Next Meeting
XXXXXXXXXXXX to canvass Members and arrange the next meeting.
Any Other Business
Below should be the Action Minutes of the Member Training Steering Group held on the 19th March 2013. On the original there is a third column with OD (Organisational Development) Team written next to points two to nine. It’s easier to write this in HTML without creating the way it is laid out as a table so I have left this out. I’ve also left out the page numbers and the filename/path on Wirral Council’s computer that it’s stored. However these can be viewed on the original.
The group welcomed XXXXXXXXXXX who is an associate tutor with the LGA and will be providing an overview of the Leadership Programme for Members
Noted that Cllr Clements did not attend the last meeting and apologies had been received.
Minutes and Matter Arising
a) Terms of Reference
Agreed that the Chief Executive would be included as support for the group.
The group would continue to sign off requests for training and will continue to be mindful of the travel and accommodation costs.
Agreed that OD would report back on a quarterly basis training approval decisions.
Agreed to put the terms of reference into themes and circulate.
b) Recruitment to Leadership Modules
Agreed that Members should forward names to XXXXXX to reserve a place on the course and to contact XXX should they have any queries.
An introduction session will run on the 10th April a Flyer will be sent out providing the details of the session. XXXXX explained that the Pre course briefing would cover an introduction to the programme followed by the completion of the Myers Briggs Type Indicator questionnaire as this would form the basis for the content on Module one, feedback would then be provided either face to face, which preferable or over the phone, prior to the programme commencing on the 8th May.
It was noted that participants are required to attend both modules to benefit from the programme.
c) Elected Member training onto the committee calendar
Agreed to escalate the request to include members training from the skills for Wirral programme into the committee calendar.
Standing Item – Training Update (since last meetings)
a) 13th February – Developing the Council of the Future
Noted that 30 attended the event with a mixture of feedback
Agreed to chase up the feedback from this event and share with Members.
Agreed to look at how Member’s could be provided with more opportunities to feedback and participate in these events.
b) Public Health and Wellbeing: 20 February 2013
Noted that 9 attended with very good feedback
c) Understanding Local Government Finance: 27 February 2013
Noted that 8 attended with very good feedback
d) Media Skills
Noted that 2 attended with very good feedback
e) High Level Communications Skills
Noted that 5 attended with very good feedback
f) Attendance on training
Agreed to continue to send reminders for training but as a rolling programme of events that month and to include flash reminder the day of the training that spaces are available.
Standing Item – Upcoming training ( Members Development Programme)
a) Effective Surgeries and Caseload Management Training
Agreed to look at were we are up to with an Electronic System for case load Management. Meeting already arranged with IT to discuss this and Members IT training, feedback would be provided at the next meeting.
b) Training Venues
Agreed to look at other venues rather than The Laurie’s Centre for Elected Member training sessions and move the training already book to other venues, to minimise costs.
Standing Item – Approved Duty Requests
No outstanding approved duties
a) Spending for Approved duties
Members to discuss and feedback as to how they would like to spend monies for approved duties, agreed to monitor on a case by case basis.
b) Feedback from Events Attended
Agreed to look at feedback from events and if particularly effective consider developing a Wirral version of the event.
Standing Item – Budget
a) Profile 2012-2013
Budget profile discussed and noted that there would be an under spend this year. Details shared with the group.
b) Profile 2013-2014
Approximately £13,000 has been committed to date. Budget to be monitored at each meeting.
c) Spending for Approved Duties
Agreed to explore options around external funding available.
Members Development Charter.
a) PDP Returns
46 PDP have been completed with 6 scheduled for April. This would bring the total to 52 PDP completed, which takes us over the 75% requirement for completion of the Members Charter. Agreed to continue to encourage the completion of all outstanding PDPs.
Members Development Programme Accreditation
a) Agreed for flyer to be sent to all Elected Members to promote the programme
b) Additional information from ilm to be sent to Cllr Harney
a) 4th April New Constitutional Event 6pm – 8pm Floral
b) 16 May Key Transformation and Improvement Agenda Session
Suggestion from Cllr Glasman Ethics and Conduct.
c) Training for Members – Directorships and Trusts
Advert to be sent to Elected Members when programme agreed
Date and Time of next meeting
30 April 2013 4 – 5.15pm
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Frankly, after two years and ten months of arguing over this request I doubt (although this is just my opinion) that either Wirral Council will want to appeal the decision to the First-tier Tribunal (Information Rights). Although one can never quite tell with Wirral Council.
So the decision notice relates to minutes of a meeting of the Headteachers and Teachers Joint Consultative Committee, minutes of a meeting of the Members’ (Members’ means councillors) Training Steering Group and minutes of a meeting of the Members’ Equipment Steering Group.
All these committees met behind closed doors and had councillors appointed to them.
The information in the minutes of the meetings of the last two groups are about training of councillors, use of electronic equipment, developing the Council of the Future, spending, service delivery models and proposals for improvement and potential change.
Surjit Tour made the decisions that releasing this information would be "prejudicial to the effective conduct of public affairs". There’s a long bit of the decision notice that goes into ICO’s assessment of the public interest test. ICO disagrees with Surjit Tour with regards to two out of the three sets of minutes requested. ICO’s view is that the public interest test weighs in favour of disclosure of the minutes of the Members’ Training Steering Group and minutes of the meeting of the Members’ Equipment Steering Group.
They do however agree with Surjit Tour over the minutes of the Headteachers’ and Teacher’s Joint Consultative Committee, although I’ll point out I find their arguments over a "chilling effect" over what was said at a meeting three years ago rather strange!
Below I include a copy of the decision notice (above is a summary). Although it states I didn’t submit public interest arguments, I did in a document marked "reasons for appeal" (in fact I have an email from the case officer referring to it). However the reasons for appeal have seemingly either not been read or ignored by the person writing the decision notice.
The result of the decision notice is that Wirral Council (or I) can appeal the decision within 28 days of the decision notice to the First-tier Tribunal (Information Rights) or if the decision is accepted they have to respond by providing the minutes relating to the meetings of the Members’ Training Steering Group and of the Members’ Equipment Steering Group within 35 days.
1. The complaint concerns a request for the minutes of three separate committee meetings. Wirral Metropolitan Borough Council (‘the Council’) has refused to release this information. The Council says it is exempt under section 36 of the FOIA (prejudice to the effective conduct of public affairs) and that the public interest favours the information being withheld.
2. The Commissioner’s decision is that sections 36(2)(b)(i) and (ii) have been correctly applied to the requested information and that the public interest favours withholding some of the information (item 15). However he finds that the public interest favours releasing the remainder of the information.
3. The Commissioner requires the public authority to take the following step to ensure compliance with the legislation:
4. The public authority must take this step within 35 calendar days of the date of this decision notice. Failure to comply may result in the Commissioner making written certification of this fact to the High Court pursuant to section 54 of the Act and may be dealt with as a contempt of court.
5. The request that is the subject of this notice has been subject to two previous decision notices – FS50509081 and FS50569254. Of relevance to this notice, FS50569254 found that the Council had incorrectly applied section 14(1) (vexatious request) to four parts of the 26 part request. The Commissioner ordered the Council to disclose this information or issue a fresh refusal notice.
Request and response
6. On 29 March 2013, as part of the wider request referred to above, the complainant had written to the Council and requested information in the following terms:
“Please could you provide minutes of the previous meetings of the following committees…
… 15. Headteachers and Teachers JCC
18. Members’ Training Steering Group
19. Members’ Equipment Steering Group
26. Safeguarding Reference Group…”
7. As a result of the Commissioner’s decision in FS50569254, the Council provided the complainant with a new response on 3 September 2015. It said that these four parts were exempt from disclosure under section 36(2)(b)(i) and (ii) and that the public interest favours withholding the information. It said part 26 of the request was also exempt under section 40 (personal data).
8. Given the history of this request, the Council did not undertake an internal review and the matter was referred to the Commissioner. However, as part of the Commissioner’s investigation, the Council did review its response and reconsidered its response with regard to part 26 of the request. It withdrew its reliance on section 36 and section 40 and disclosed this particular information to the complainant on 11 January 2016.
Scope of the case
9. The complainant had contacted the Commissioner on 7 September 2015 to complain about the way the four parts of his original request for information had been handled.
10. The Council has now disclosed part 26 of the requested information to the complainant. The Commissioner has therefore focussed his investigation on the Council’s application of the exemption at section 36 to parts 15, 18 and 19 of the request and its public interest arguments.
Reasons for decision
Section 36 – prejudice to effective conduct of public affairs
11. Section 36(2)(b)(i) and (ii) of the FOIA says that information that is held by a public authority is exempt if, in the reasonable opinion of a qualified person, disclosing it would, or would be likely to, inhibit the free and frank provision of advice, and the free and frank exchange of views for the purposes of deliberation.
12. Section 36 differs from all other prejudice exemptions in that the judgement about prejudice must be made by the legally authorised, qualified person for that public authority. The qualified person’s opinion must also be a “reasonable” opinion, and the Commissioner may decide that the section 36 exemption has not been properly applied if he finds that the opinion given is not reasonable.
13. Other than for information held by Parliament, section 36 is a qualified exemption. This means that even if the qualified person considers that disclosure would cause harm, or would be likely to cause harm, the public interest must still be considered.
14. In determining whether the Council correctly applied the exemption, the Commissioner is required to consider the qualified person’s opinion as well as the reasoning that informed the opinion. Therefore in order to establish that the exemption has been applied correctly the Commissioner must:
ascertain who was the qualified person or persons
establish that an opinion was given by the qualified person
ascertain when the opinion was given; and
consider whether the opinion was reasonable.
15. The information in question concerns the minutes of a Head Teachers and Teachers Joint Consultative Committee (JCC), action minutes of a Members’ Training Steering Group and actions from a Members’ Equipment Steering Group.
16. The Council has explained to the Commissioner that the qualified person in this case is the Council’s Head of Legal and Member Services who, under section 36(5)(o)(m), is authorised as the Monitoring Officer.
17. The Council showed the information in question to the qualified person on 27 October 2014, with an opinion on it sought under section 36(2)(b)(i) and 36(2)(b)(ii), as explained at paragraph 11. The Council says the qualified person met and discussed the information on several occasions with one of his solicitors and the Records and Information Manager. The opinion was given on 31 October 2014. The Council explained to the Commissioner that the request for information was originally submitted in March 2013 and confirmed that the qualified person’s opinion was sought in October 2014.
18. The qualified person upheld the view submitted to him that disclosing the information held in items 15, 18 and 19 would inhibit the free and frank provision of advice and the free and frank exchange of views for the purposes of deliberation.
19. With regard to item 15 — the Head Teachers and Teachers JCC – the qualified person considers that the information contained within these minutes concerns important matters which require consideration and deliberation. These matters include: comprehensive and fundamental reviews associated with the education sector; the current structure and service delivery models of education; budgetary options and proposals for improvement and potential change. The qualified person says that deliberating all these matters needs a “safe space” and, in his opinion, disclosing the requested information would be likely to have a “chilling effect”. This would inhibit the free and frank provision of advice and exchange of views between Members, officers and other representatives.
20. The qualified person additionally considers that any disclosure would be likely to undermine the ability of this group, and those advising this group, to express themselves in a frank and open manner. This would then lead to poorer decision making. The qualified person considers that it is crucial that this group is able to exchange views in an open and frank manner for the reasons set out above.
21. With regard to items 18 and 19 — the Members’ Training Steering Group action minutes and actions from Members’ Equipment Steering Group — the qualified person says that the information contained within these
sets of minutes relates to important matters affecting elected Members, which requires consideration and deliberation. Matters debated include: elected Members’ training; use of electronic equipment; developing the Council of the Future; spending; service delivery models and proposals for improvement and potential change.
22. The qualified person says that this level of debate also needs a “safe space” to effectively engage the participants. In his opinion disclosing this information would be likely to have a “chilling effect” that would inhibit the free and frank provision of advice or exchange of views between elected Members and officers. Furthermore, disclosure is likely to undermine the ability of these steering groups’, and those advising these groups, to express themselves in a free and frank manner. This would then lead to poorer decision making.
23. The Commissioner first notes that the Trust has sought the opinion of its Monitoring Officer. He is satisfied that the Monitoring Officer is a suitably qualified person. This is because the Monitoring Officer post within a local authority has the specific duty to ensure that the council, its officers and its elected members maintain the highest standard of conduct in all they do. It is one of three posts that local authorities have a legal duty to have, the other two being the Chief Executive and
the Director of Finance.
24. In order to determine whether the exemption is engaged the Commissioner must then go on to decide whether the qualified person’s opinion in this case is reasonable. This involves considering:
Whether the prejudice claimed relates to the specific subsection of section 36(2) on which the Council is relying
The nature of the information and the timing of the request; and
The qualified person’s knowledge or involvement in the issue.
25. The Commissioner has also issued guidance on section 36 of the FOIA. With regard to what can be considered a ‘reasonable opinion’ it says the following:
“The most relevant deﬁnition of ‘reasonable’ in the Shorter Oxford English Dictionary is ‘In accordance with reason; not irrational or absurd’. If the opinion is in accordance with reason and not irrational or absurd — in short, if it is an opinion that a reasonable person could hold — then it is reasonable.”
26. It is important to note that when considering whether the exemption is engaged, the Commissioner is making a decision not on whether he agrees with the opinion of the qualified person, but whether it was reasonable for him or her to reach that opinion. The test of
reasonableness is not meant to be a high hurdle and if the Commissioner accepts that the opinion is one that a reasonable person could hold he must find that the exemption is engaged.
27. The Council is relying on subsections (b)(i) and b(ii) of section 36(2), namely that disclosing the withheld information would, or would be likely to inhibit the free and frank provision of advice, and the free and frank exchange of views for the purposes of deliberation. The qualified person in this case has said that prejudice, namely a “chilling effect” on the provision of advice and exchange of views that would lead to poorer decision making, would be likely to occur if the information were to be disclosed (rather than would occur).
28. The Commissioner accepts that it is important that the Council’s meetings are conducted openly with participants able to contribute candidly and to discuss issues freely. The Council and the public can then be confident that decisions made at these meetings are likely to be robust. He therefore accepts that the prejudice the Council is claiming does relate to section 36(2)(b)(i) and (ii).
29. The Commissioner has referred to the information requested at parts 15, 18 and 19 of the wider request. The information concerns meetings that took place in February and March 2013, shortly before the complainant submitted his request. In his view, the meetings are unconnected to each other or to one wider matter.
30. The Commissioner notes that the qualified person has had several discussions with a solicitor and the Records and Information Manager about the matter. He considers that, although the qualified person did not participate in the meetings in question, the qualified person would understand the nature of the meetings and have a good knowledge of the circumstances surrounding the request.
31. Having undertaken the above review of the qualified person’s opinion, the Commissioner is satisfied that, in the circumstances, it is a reasonable opinion ie it is not irrational or absurd. Therefore, the exemption at section 36(2)(b)(i) and (ii) is engaged with regard to items 15, 18 and 19.
Public interest test
32. In most cases, even when the qualified person has given their opinion that section 36(2)(b) is engaged, the public authority must still carry out a public interest test. The qualified person’s opinion will affect the weight of the argument for withholding the information. If the qualified person has decided that disclosure would prejudice, this will carry a greater weight than if they said
disclosure would be likely to prejudice.
33. The qualified person’s opinion brings weight to the arguments for withholding the information; the significance of this weight will vary from case to case. When considering a complaint regarding section 36, if the Commissioner finds that the opinion was reasonable, he will consider the weight of that opinion in the public interest test. This means that he accepts that a reasonable opinion has been expressed that prejudice would, or would be likely to occur, but he will go on to consider the severity, extent and frequency of that prejudice in forming his own assessment of whether the public interest test dictates disclosure.
34. In his guidance on section 36, the Commissioner says that it should always be possible for the public authority to review the public interest arguments. The Commissioner gave the Council the opportunity to do this during the course of his investigation. The Council confirmed on 14 January 2016 that it continues to rely on its arguments from October 2014.
Public interest arguments in favour of disclosure
35. With regard to item 15, the qualified person says that disclosing these minutes would give the public insight into the processes involved within the Council for decision making on important issues of the day. Disclosing these minutes would also demonstrate transparency with regard to internal processes and with regard to the exchange of views and advice.
36. With regard to items 18 and 19, the qualified person says that disclosure of these action minutes would give an insight into how the Council analyses and reviews information with a view to shaping and
developing for the future. These action minutes would also allow the public to see proposals that the Council is considering.
37. The complainant did not submit any public interest arguments.
Public interest arguments in favour of maintaining the exemption
38. The qualified person considers that the public interest favours maintaining the exemption with respect to these three items of information because disclosing the information would restrict the free and frank exchange of views, would inhibit the giving of advice and guidance and would potentially have a detrimental effect on the work of these groups and those taking part in their discussions. He says that the Council relies on the ability to have a “safe space” to enable it to
make the most appropriate decisions for elected Members, officers and the people of Wirral.
Balance of the public interest
39. The Commissioner first of all notes that the qualified person has said that releasing the information would be likely to inhibit free and frank advice and exchange of views. This potentially brings less weight to the argument for withholding the information than would inhibit.
40. In his published guidance on section 36, the Commissioner notes at paragraph 45 that 36(2)(b)(i) and (ii) are about the processes that may be inhibited, rather than what is in the information. The issue is whether disclosure would inhibit the processes of providing advice or exchanging views. In order to engage the exemption, the information requested does not necessarily have to contain views and advice that are in themselves notably free and frank.
41. On the other hand, if the information only consists of relatively neutral statements, then it may not be reasonable to think that its disclosure could inhibit the provision of advice or the exchange of views.
42. Paragraph 46 of the Commissioner’s guidance discusses the terminology used in the exemption, as follows:
‘Inhibit’ means to restrain, decrease or suppress the freedom with which opinions or options are expressed.
Examples of ‘advice’ include recommendations made by more junior staff to more senior staff, professional advice tendered by professionally qualiﬁed employees, advice received from external sources, or advice supplied to external sources. However, an exchange of data or purely factual information would not in itself constitute the provision of advice or, for that matter, the exchange of views.
The ‘exchange of views’ must be as part of a process of deliberation.
‘Deliberation’ refers to the public authority’s evaluation of competing arguments or considerations in order to make a decision.
43. As in this case, arguments under section 36(2)(b)(i) and (ii) are usually based on the concept of a ‘chilling effect’. The chilling effect argument is that disclosure of discussions would inhibit free and frank discussions in the future, and that the loss of frankness and candour would damage
the quality of advice and deliberation and lead to poorer decision making.
44. Public officials are expected to be impartial and robust when giving advice, and not easily deterred from expressing their views by the possibility of future disclosure. It is also possible that the threat of future disclosure could actually lead to better quality advice. Nonetheless, chilling effect arguments cannot be dismissed out of hand.
45. Chilling effect arguments operate at various levels. If the issue in question is still live, arguments about a chilling effect on those ongoing discussions are likely to be most convincing. Arguments about the effect on closely related live issues may also be relevant. However, once the decision in question is finalised, chilling effect arguments become more and more speculative as time passes. It will be more difficult to make reasonable arguments about a generalised chilling effect on all future discussions.
46. Whether it is reasonable to think that a chilling effect would occur will depend on the circumstances of each case, including the timing of the request, whether the issue is still live, and the actual content and sensitivity of the information in question.
47. The Commissioner has reviewed the information in question. Items 15 and 19 are minutes/actions from meetings held February 2013, item 18 is the action minutes from a meeting that was held in March 2013. At the time of the complainant’s request therefore, the meetings in question were very recent and the subjects under discussion would still have been live at the time of the request.
48. Item 15 is the minutes of the Headteachers’ and Teachers’ Joint Consultative Committee meeting on 28 February 2013 and is described as such ie as ‘Minutes’. As such they summarise the discussion that occurred in the meeting. The content of the minutes is as described at paragraph 19. They include summaries of participants’ exchange of views and their evaluation of particular proposals in order to reach a decision. The Commissioner considers that this Committee would have needed a safe space in which to freely and frankly deliberate on important and potentially sensitive matters such as fundamental reviews associated with the education sector; the current structure and service delivery models of education; budgetary options and proposals for improvement and potential change.
49. Given the closeness between the meeting in February 2013 and the original request for its minutes in March 2013, the Commissioner is persuaded that releasing these minutes may have been likely to have a chilling effect on subsequent meetings of this Committee. He agrees
with the Council that the public interest favours this particular information being withheld in order to protect the Committee’s ability to make decisions based on full and frank discussions.
50. The Commissioner has next considered items 18 and 19. Item 18 — the Member Steering Group – is described as ‘Action Minutes’. For the most part, only the agreed actions that resulted from the discussions are noted, with a brief summary of one or two points. Item 19 — the Members’ Equipment Steering Group’ — is described as ‘Actions’ and only agreed actions that resulted from the discussions are noted.
51. The Commissioner recognises that the meetings took place shortly before the request was submitted and that the matters under discussion were still live at that time, to some degree. However, he does not consider that the matters under discussion — elected Members’ training and equipment needs — is of sufficient sensitivity that disclosing the information would have a chilling effect on subsequent meetings of these two groups, and inhibit the process of providing advice or exchanging views. In addition, the overwhelming majority of the information held in these two documents is agreed actions, very briefly summarised, and not summaries of broader discussion and deliberation on these two matters. The Council has said that releasing this information would be likely to inhibit free and frank advice and exchange of views but its evidence for this is somewhat generic and consequently not strong. As a result, the Commissioner considers that the public interest favours releasing items 18 and 19 in the interests of transparency.
Right of appeal
52. Either party has the right to appeal against this decision notice to the First-tier Tribunal (Information Rights). Information about the appeals process may be obtained from:
The FOI request this relates to was made through the excellent whatdotheyknow.com website on the 29th March 2013. It’s for minutes of the meetings of 26 different panels, statutory committees, advisory committees and working parties that councillors are appointed to by Wirral Council.
In September 2014, the Information Commissioner’s Office issued 9 page decision notice FS50509081. In a nutshell that decision notice stated that by the 13th October 2014 Wirral Council had to:
b) advise whether it held the minutes of these meetings or not.
Wirral Council did not respond to the decision notice by the 13th October 2014. Instead it took a further three weeks than was allowed and Wirral Council responded on the 4th November 2014. Minutes of seven meetings were supplied (some minutes were supplied with some information blacked out). In response to other parts of the request it provided links to its website.
This left nine disputed parts of the request which were in relation to the bodies below (I’ll use the original numbering). JCC stands for Joint Consultative Committee and Members means councillors. I provide under each one what it’s remit was:
4 (School Appeals Panel)
To consider, as part of a statutory review process, appeals against decisions by the Local Authority (or the Governors of voluntary or aided schools) concerning the allocation of places in primary and secondary schools, and decisions by governing bodies concerning the exclusion of pupils.
The School Appeals Panel is drawn from a “pool” of lay members or members with experience in education. However, Councillors are ineligible to serve on Appeals Panels for schools under local authority control.
5 (Standing Advisory Committee on Religious Education (SACRE))
SACRE is responsible for advising the local authority on matters concerning the teaching of religious education and collective acts of worship; it decides on applications for determination of cases in which requirements for Christian collective worship are not to apply; and may require the local authority to review its agreed syllabus.
8 (Adoption / Fostering Panels)
As part of a wider membership, to determine applications for the adoption and for the fostering of children.
10 (Unified Waiting List Management Advisory Board)
To consider appeals from applicants who consider they have been unfairly treated or unfairly excluded from the waiting list, having exhausted the Steering Group appeals procedure.
11 (Discharge from Guardianship by Wirral Council under the Mental Health Act 1983 Panel)
To hear requests to discharge service users subject to guardianship upon the application of a professional responsible for their care.
15 (Headteachers and Teachers JCC)
To meet with headteachers’ and teachers’ representatives to discuss educational issues.
18 (Members’ Training Steering Group)
To advise on the preparation of the annual programme of training for Council members and on individual applications to attend courses.
19 (Members’ Equipment Steering Group)
To review IT equipment provision for members.
26 (Safeguarding Reference Group)
Established by Cabinet on 15 April 2010 for the purpose of ensuring that the most senior community leaders of the Council are enabled to carry out their responsibilities of safeguarding children and adults in Wirral.
Minutes of a Unified Waiting List Management Advisory Board meeting (part 10 of the request) Wirral Council merely stated “Officers are investigating if this Board has ever met/if there are any minutes available and we will answer this part of your enquiry as soon as possible.”
So I requested an internal review of the application of these exemptions on the 12th November 2014. On the 30th April 2015 Wirral Council responded to the internal review request. I’ll point out here that internal reviews are supposed to be completed within 40 days, but Wirral Council took 5 months.
Wirral Council also pointed out that since the Council’s housing stock was transferred out of Wirral Council’s control in 2009, that the Unified Waiting List Management Advisory Board (part 10 of the request) hadn’t met.
In relation to part 21 (Hilbre Island Nature Reserve Management Committee) Wirral Council stated “There are no minutes from 2013 the Hilbre Island Nature Reserve Management Committee as the present Committee was formed in March 2014.”
However Wirral Council still regarded the rest of the internal review request to be vexatious.
This decision notice found in relation to part 4 (School Appeals Panel) and part 11 (Discharge from Guardianship by Wirral Council under the Mental Health Act 1983 Panel) that Wirral Council does not hold information related to this part of the request.
This finding on the school appeals panels I find odd since the school appeals panel meets at Wallasey Town Hall. In response to a previous FOI request Wirral Council stated that it pays the taxi expenses for school appeals panel members and Wirral Council employees from the Legal & Member Services section of Wirral Council take the minutes of these meetings. Apparently Wirral Council states that there were School Appeal Panel meetings in 2012 but as they only keep the decision notices for 2 years that now it’s 2015 that Wirral Council don’t have them any more.
ICO also found that Wirral Council didn’t hold meetings of the Hilbre Island Nature Reserve Management Committee and believed Wirral Council when it stated “There are no minutes from 2013 the Hilbre Island Nature Reserve Management Committee as the present Committee was formed in March 2014.”
This is disputed by both Cllr Chris Carubia and Cllr Pat Williams as you can see by their response to a tweet below:
ICO also stated in its decision notice that Wirral Council had incorrectly applied section 14(1) (vexatious or repeated requests) to parts 15 (Headteachers and Teachers JCC), 18 (Members’ Training Steering Group), 19 (Members’ Equipment Steering Group) and 26 (Safeguarding Reference Group) of the request, because “these elements of the request are not vexatious”.
ICO did decide that Wirral Council had correctly applied section 14(1) to part 8 (Adoption/Fostering Panels) of the request because it deemed it to be vexatious (but is clarified in the decision notice as being a “disproportionate burden”). Wirral Council supplied the minutes of one adoption panel meeting and one fostering panel meeting to the Information Commissioners Office which came to a total of 95 pages. Wirral Council estimated it would take 23.5 hours of staff time (just over 15 minutes a page) to make the necessary redactions.
However the minutes of the Headteachers and Teachers JCC meeting, Members’ Training Steering Group meeting, Members’ Equipment Steering Group meeting and Safeguarding Reference Group came to less than 15 double-sided pages (30 sides of A4).
The decision notice also states “The complainant will not receive a response to some parts of his request until more than two years after he submitted it.”
Either Wirral Council or myself could appeal this ICO decision notice to the First-Tier Tribunal (Information Rights) within the next 28 days.
Here are some quotes from the decision notice (committee in the first quote refers to Hilbre Island Nature Reserve Management Committee).
“The Council, however, confirmed to the Commissioner on 20 July 2015 that, having undertaken a thorough search, it does not hold any Committee minutes from 2013 or earlier.
ICO believed Wirral Council so I suppose these published minutes of the Hilbre Island Nature Reserve Management Committee published on Wirral Council’s website from the 13th April 2007, 23rd November 2006, 13th July 2005 and even as far back as 6th April 2001 are just figments of my imagination. Perhaps I’m not “on message” enough!
Here’s another quote:
“The Council’s information manager had calculated that it took 70 hours and £1,750 to provide its response to the complainant dated 4 November. It argued that the amount of time the information management team had to spend on locating, retrieving and reading information falling within the scope of the request had a detrimental impact on the team.”
On the 4th November 2014 Wirral Council provided 22 A4 pages of information. The rest it either said it didn’t hold, was already on its website or that an exemption applied. That’s £79.54 per a page (or over 3 hours per an A4 page) of released information! How can it have had a “detrimental impact on the team” when Wirral Council took the 35 days the decision notice allowed plus an extra 22 days!
“The Council says this work would cause a disproportionate burden because the request does not appear to have an inherent purpose or value.”
So knowing what and how councillors make important decisions on the public’s behalf doesn’t have an “inherent purpose or value”?
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The request was made on 29th March 2013. By the 29th April 2013 I had not received a reply, so I requested an internal review. On the 30th April 2013 Wirral Council responded stating that the request would be refused on the basis of exemption 12 (exemption where cost of compliance exceeds appropriate limit) which to summarise is where a request would take longer than 18.5 hours of staff time to provide.
Wirral Council did state they would provide minutes of the Members Equipment Steering Group (they had action notes on these since the 17th July 2012) which deal with equipment for councillors to do their role such as laptops, iPads etc and minutes of the Safeguarding Reference Group. However now almost a year later they haven’t. The response also pointed out that there weren’t minutes taken of Independent Remuneration Panel meetings (which make recommendation on allowances for councillors) but that the Independent Remuneration Panel produced reports which had already been published on Wirral Council’s website.
On the same day I made it crystal clear that I just wanted minutes of the previous meetings of these groups, not all minutes of their meetings since these groups had been started (which is how Wirral Council had interpreted this request). The internal review response on the 30th July 2013 stated “The groups you mentioned are not all served by committee services nor are they groups on which the Council is the sole interested party; nor are they all groups which the Council chairs and an inquiry would have to be made to a significant number of persons and locations.” The internal review refused the request on the basis of a s.14 exemption (vexatious or repeated request). The internal review went on to state “It is clear that many of the panels you mention will be dealing with highly sensitive personal data in particular and without limitation no.s 1-4 inclusive, 8, 9, 11, 16, 23 and 26. Officer time in considering those considering the exemptions and redacting, consulting with third parties (for example the independent chairperson of the Adoption panel, representatives of other bodies on the committee) would in view of the Reviewing Officer mean that the request should have been refused under s.14. I was then at the stage (over four months after having made the request) of being at the stage where I could make an appeal to the Information Commissioner’s Office.
It is at this point that I will point to a number of already decided cases that have a bearing on how Wirral Council should have handled this request. The Chief Constable of Yorkshire Police v The Information Commissioner (EA/2009/0029) was a case involving a refusal on s.12 grounds (exemption where cost of compliance exceeds appropriate limit). In that case, which was an Information Tribunal case this was part of the decision “37. For all these reasons, we find a public authority cannot include the time cost of redaction when estimating its costs under regulation 4(3)(d).”
“the costs it reasonably expects to incur in relation to the request in
(a)determining whether it holds the information,
(b)locating the information, or a document which may contain the information,
(c)retrieving the information, or a document which may contain the information, and
(d)extracting the information from a document containing it.
In other words the activities that Wirral Council mention such as “officer time considering those exemptions and redacting” and “consulting with third parties” don’t fall within these four activities and don’t count towards the 18.5 hour limit.
“17. In respect of paragraph 0 above, whether the request creates a “strain on resources”, that is not relevant to the question of whether it is vexatious. If the Council wished to argue that they ought not to be required to comply with the request on this basis, then it ought to have relied on section 12 FOIA. It did not do so. In any event, as discussed at paragraph 10 above, the Commissioner considered whether the request would create a significant burden (strain) on the Council and concluded that there was insufficient evidence to support this factor.”
In other words, Wirral Council’s arguments when they refused it as a vexatious request that it would create the sort of “strain on resources” referred to in Roger Conway v The Information Commissioner (EA/2011/0224) wasn’t relevant to the question of whether it’s vexatious and was the basis of Wirral Council’s argument that it was. Roger Conway v The Information Commissioner (EA/2011/0224) states that if a public authority wants to refuse such a Freedom of Information Act request then it should rely on a section 12 exemption (exemption where cost of compliance exceeds appropriate limit). However if Wirral Council has to rely on a s.12 exemption in this case then Regulation 4 of the The Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 and Chief Constable of Yorkshire Police v The Information Commissioner (EA/2009/0029) state that it can’t count activities such as “officer time considering those exemptions and redacting” and “consulting with third parties” towards the 18.5 hour limit.
So I appealed Wirral Council’s decision to the Information Commissioner’s Office. I received a response from the Information Commissioner’s Office last week that it had written to Wirral Council about this request twice, but had not yet received a reply. The Information Commissioner’s Office released the copies of the letters to me it has sent to Wirral Council and not received a reply to but with the Wirral Council officer’s name redacted. Interestingly the Information Commissioner’s Office have decided that some of the request falls under the Environmental Information Regulations 2004, which unlike the Freedom of Information Act 2000 have a presumption in favour of disclosure.
15th August 2013
Case Reference Number FS50509081
Dear [redacted council officer name],
Freedom of Information Act 2000 (‘the Act’)
Complaint from John Brace
Information request made 29 March 2013
The Information Commissioner has received a complaint about the handling of the above request.
We have carried out an initial assessment of this case and consider it eligible for formal consideration under s50 of the Act.
The case will be allocated to a case officer who will contact you with further details of the complaint.
We emphasise that although we have assessed the complaint as being eligible for the Information Commissioner to decide whether a public authority has dealt with a request for information in accordance with Part I of the Act, no specific decision has been made as to the individual merits of the complaint at this time.
What actions may be required at this stage
Where information has been withheld because you (the public authority) have applied one of the exemptions in Part 2 of the Act, the case officer will need to have a copy of the information to judge whether or not any exemptions have been properly applied. We would also appreciate, where you are able, for you to be specific about which exemptions apply to each part of the information. At this stage we only ask that you prepare this information: please do not send it to us until it is requested by the case officer.
Providing information to the ICO
Finally, you should be aware that the Information Commissioner often receives requests for copies of the letters we send and receive when dealing with casework. Not only are we obliged to deal with these in accordance with the access provisions of the Data Protection Act 1998 (DPA) and the Freedom of Information Act 2000 (FOIA), it is in the public interest that we are open, transparent and accountable for the work that we do.
However, whilst we want to disclose as much information as we reasonably can, there will be occasions where full disclosure would be wrong. It is also important that the disclosures we make do not undermine the confidence and trust in the Commissioner of those who correspond with him.
I would be grateful if, at the appropriate time, you would indicate whether any of the information you provide in connection with this matter is confidential, or for any other reason should not be disclosed to anyone who requests it. I should make clear that simply preferring that the information is withheld may not be enough to prevent disclosure. You should have a good reason why this information should not be disclosed to anyone else and explain this to us clearly and fully.
If you need to contact us about any aspect of this complaint please call our helpline on 0303 123 1113, or 01625 545745 if you would prefer not to call an ‘03’ number, being sure to quote the reference number at the top of this letter.
Jenny Sanders Sent on behalf of Andrew White Group Manager Complaints Resolution Information Commissioner’s Office
Wirral Metropolitan Borough Council
10 February 2014
Case reference number FS50509081
Dear [redacted council officer name]
Freedom of Information Act 2000 (FOIA)
Environmental Information Regulations 2004 (EIR)
Complainant: Mr John Brace
Your Ref: None given to complainant, but subject matter is listed as ‘Minutes of previous meetings of 26 panels’
We wrote to you previously to let you know that we have accepted a complaint from Mr Brace (“the complainant”). The complaint concerns the refusal to comply with a request for information under section 14(1) of the Freedom of Information Act 2000 (“the FOIA”).
Having reviewed the nature of the complainant’s request for information, we will need to consider this case under the Environmental Information Regulations 2004 (“the EIR”), as well as the FOIA. The EIR provides the public with a right to information held by authorities that relates to the environment. The EIR apply in this case due to parts 20-22 of the request. Your obligations as a public authority are similar to those under the FOIA.
I can see that [redacted council officer name] contacted us on 16 August 2013 to ask for the CRM number, apologies that she did not receive a response. Cases are held in a queue until they are allocated to a case officer. From what I can see on the documents provided by Mr Brace (as detailed below) there is no CRM number. However the correspondence can be viewed at:
On receipt of a complaint under the FOIA and EIR, the Information Commissioner (“the Commissioner”) will give a public authority one opportunity to justify its position to him before coming to a conclusion. Please consider the guide for public authorities on the Commissioner’s website for more information about how we handle complaints:
On 29 March 2013 the complainant made the following request for information:
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
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
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
You responded on 30 April 2013 and refused the request under section 12.
The complainant then requested an internal review on 30 April 2013, which you provided on 30 July 2013. You revised your position and refused the request under section 14(1).
Scope of the case
The complainant contacted the Information Commissioner’s Office (“the ICO”) on 14 August 2013 to contest the council’s refusal.
The focus of my investigation will be to determine whether the council handled the request in accordance with the FOIA and EIR.
Specifically, I will look at whether the council is entitled to rely on section 14(1) of the FOIA and regulation 12(4)(b) as a basis for not providing a response to the request for information.
What you need to do now
Where possible the Commissioner prefers complaints to be resolved by informal means, and we ask both parties to be open to compromise. It is also your responsibility to satisfy the ICO that you have complied with the law. The ICO’s website has guidance which you should refer to in order to check whether your original response to the information request was appropriate.
This is your opportunity to finalise your position with the ICO. With this in mind, you should revisit the request. After looking at our guidance, and in light of the passage of time, you may decide to reverse or amend your position. If you do, please notify the complainant and me within the timeframe specified at the end of this letter. This may enable us to close this case informally without the need for a decision notice.
In any event, we need the following information from you to reach a decision.
Section 14(1) of the FOIA – Vexatious requests, and regulation 12(4)(b) of the EIR – manifestly unreasonable
In determining whether a request is vexatious, the ICO believes that the key question which public authorities need to consider is whether complying with the request is likely to cause a disproportionate or unjustified level of disruption, irritation or distress. Where this is not clear, public authorities should weigh the impact on the authority and balance this against the purpose and value of the request. Where relevant, public authorities will need to take into account wider factors such as the background and history of the request.
The ICO has published guidance on applying section 14(1) of FOIA which includes information on how to apply to this balancing exercise. Our approach to manifestly unreasonable requests under the EIR is very similar. You are strongly advised to review this guidance before responding to this letter.
As this guidance explains, when determining whether section 14(1) or regulation 12(4)(b) has been applied correctly the ICO will primarily look for evidence that the request would have an unjustified or disproportionate effect on the public authority.
Therefore, in light of this please explain why in the circumstances of this case the council relied on section 14(1) and regulation 12(4)(b) to refuse the request. Your response should include:
Details of the detrimental impact of complying with the request;
Why this impact would be unjustified or disproportionate in relation to the request itself and its inherent purpose or value;
And, if relevant, details of any wider context and history to the request if the council believes that this background supports its application of section 14(1) and regulation 12(4)(b). Please provide any relevant documentary evidence background evidence to support such a claim.
We strongly recommend that your response is guided by recent decision notices, our guidance and our lines to take, which demonstrate the Commissioner’s approach to the exemptions and procedural sections of the FOIA and EIR. These can be found on our website:
Having revisited the request, you may decide to apply a new exemption. We will consider new exemptions but it is your responsibility to tell the complainant why the new exemption applies and to provide us now with your full submissions.
For the avoidance of doubt, you should now do the following.
Consider whether to change your response to the information request, and let us know the outcome.
Send us your full and final arguments as to why you think section 14(1) and regulation 12(4)(b) applies.
To contact us
Please provide your response within 20 working days of the date of this letter, that is by 10 March 2014,ensuring that you fully set out your final position in relation to this request.
You can contact me at firstname.lastname@example.org. Please ensure that you reply directly to this email address without changing any of the details in the subject box. This will ensure that the correspondence is allocated immediately to the correct case.
Case Officer – Complaints Resolution
Direct Dial: 01625 545 214
You should be aware that the Information Commissioner often receives requests for copies of the letters we send and receive when dealing with complaints. Please indicate whether any of the information you provide in connection with this matter is confidential, or for any other reason should not be disclosed to anyone who requests it. You should provide a good reason why this information should not be disclosed to anyone else and explain this to us clearly and fully.
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