Hearing date of 21st September 2016 set for Tribunal over FOI request to Merseyside Fire and Rescue Authority
Liverpool Civil & Family Court, Vernon Street, Liverpool, L2 2BX (the venue for the upcoming First-Tier Tribunal case EA/2016/0054)
First a declaration of interest, as I am the Appellant in the First-Tier Tribunal (Information Rights) case EA/2016/0054. The two respondents are the Information Commissioner’s Office and Merseyside Fire and Rescue Authority.
A date and time has been set for the hearing. It will take place on the 21st September 2016 starting at 10am.
The location for the hearing is Tribunals, 3rd Floor, Civil & Family Court, 35 Vernon Street, Liverpool, L2 2BX. A room number (one of the five tribunal rooms) will be allocated on the day.
As a hearing date is now set, the case is sub judice. Therefore comments are turned off for legal reasons.
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Deputy Chief Fire Officer Phil Garrigan tells councillors “90 working days” are lost each year in responding to FOI requests
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Councillors on the Performance and Scrutiny Committee (Merseyside Fire and Rescue Authority) discuss Freedom of Information requests (starts at 15m 35s) (12th January 2016)
Phil Garrigan (Deputy Chief Fire Officer) speaks about freedom of information requests to a meeting of Merseyside Fire and Rescue Authority’s Performance and Scrutiny Committee (12th January 2015)
Although I am not referred to by name (but my profession is in the report), I have made Freedom of Information requests to Merseyside Fire and Rescue Service/Merseyside Fire and Rescue Authority during the period covered by that report. An appeal of a refusal of one of those Freedom of Information requests to the Information Commissioner’s Office is referred to in the report in section 16. I am therefore declaring this as an interest at the start of this piece.
The report was introduced by Deputy Chief Fire Officer Phil Garrigan, who said “Thanks Chair, again this report relates to our response to a request from Members to better understand the implications of the Freedom of Information requests on the Authority and the report proposes to, it requests that Members review the information in relation to Freedom of Information requests and particularly the Freedom of Information Act 2000.
What I would say from the outset is that Merseyside Fire and Rescue Authority adheres to and is supportive of the Freedom of Information Act and values its role in allowing people to access information, giving them the right to find out about matters and decisions that affect them. I’d like to be absolutely crystal clear around that.
However, use of the Act is becoming increasingly popular and the volumes of freedom of information requests have increased over the recent years. The table on page 58 exemplifies that. We received, we saw freedom of information requests in 2011 at 72, 2014 at 138 and up until November 9th 2015 at 131.
So it’s clear evidence that the freedom of information requests coming through to Merseyside Fire and Rescue Authority has increased significantly over that period and you know Members will also be aware that we’ve been receiving those freedom of information requests it’s a requirement on us to turn around that information within twenty days unless we are able to provide you know a legitimate reason as to why we wouldn’t provide that information and even then we’d have to evidence that and reply to the particular individual who’s requested the information.
What we also recognise is that there are different courses of action that we could take. You know a) providing the information, redacting the information, refusing to supply the information by applying an exemption or determining that the work required to pull the information together is disproportionate and then notifying the application that it’s available by other means or by determining the request is vexatious and certainly the Information Commissioner has said you know when challenged around freedom of information and the number of requests it is always available for an authority or an organisation to reject it on the basis that it’s a vexatious request, but equally Members will appreciate the fact that that is quite challenging in that regard because it seems very protectionist, it seems as though we would be withholding information from a public member or an organisation on that basis and it’s very difficult to legitimise that in my view and more often than not the individuals, the staff who are seeking to provide that information will go way beyond what’s expected to provide that information as accurately as they are able to.
But it does place demands on our organisation, particularly as our organisation continues to reduce in size and when we look at the, our attempts to protect our front line operational response and we look at, it’s incumbent on us that we look at the support services that maintain the Service outside of our operational firefighters. So our non uniformed colleagues and uniformed colleagues are spending a significant amount of time dealing with freedom of information requests. So the organisation is shrinking but the demand around freedom of information is increasing.
So what the report does is it recognises that fact, it appreciates the fact that you know we will get a multitude of different requests in, some from you know members of the public, but some extended to journalists and so on and so forth and representative bodies who are utilising the information not in my view for how it was necessarily meant to be utilised in the first instance and also we have requests coming from organisations and companies where they are seeking to achieve you know some competitive advantage and I’m not sure again that was the basis of what the Freedom of Information Act was all about, but drawing all that in then and you know certainly it’s already been recognised as there’s been an independent Commission that has been invoked to review the Freedom of Information Act and we have provided a response to that saying that we are certainly for legitimate and less vexatious requests and maybe a levy or a charge may be applicable to kind of ensure that they are genuine and not repeated and that would maybe prevent some of the prolific you know press requirements being met when such a charge is applicable.
However the Information Commissioner has published a response in relation to that consultation which says, which argues against the introduction of fees and as I say you know starts to suggest that authorities should use section 14 which is around vexatious requests to avoid responding to the ones that were deemed to be you know vexatious in their very nature.
However you know in regards to that as I’ve previously stated, paragraph 12 describes the challenges around describing something as vexatious and that’s not something we would want to be perceived to be defensive over the policies and procedures that we’ve adopted as an Authority. I’m not sure we would want to be, or I certainly know we would want to be as transparent and open as possible but nevertheless what does that mean in reality?
In reality it means that since July 2015 through November, 32 complete requests have been responded to and the total of hours that have been attributed to that to deal with those requests 153 hours, which equates to 4.8 hours per a request for information. When you extrapolate that over the twelve month period it equates to 629 hours which again would be in effect is about 90 days of a person who is being responded to and obviously that’s a collective person because that’s an hour of one department, two hours of another, three hours of another and so on and so forth, but in totality it’s about 90 working days that’s lost from this Authority in responding to freedom of information requests at a time when we would be better focussed on our attentions on the delivery of the service and as I say protecting the front line.
However that is the kind of realities and again this is not about us, you know, challenging the utilisation of freedom of information but certainly it questions its actual usage in its broader sense and who actually uses it for what reasons.
When you then as part and parcel of our response to the consultation we asked staff members about what they felt the implications were for themselves and they are detailed in paragraph 19.
But what I would say in kind of closing and given that the kind of clarity of 90 working days lost to responding to freedom of information requests, I’ll just bring you back to the legal implications. Merseyside Fire and Rescue Authority has a duty under the Freedom of Information Act to deal with requests promptly and in the event no later than 20 working days after receipt of the requests.
Merseyside Fire and Rescue Authority can exercise its rights under the Act if an exemption has been correctly applied and in most cases the public interest test is then applied to ensure any exemptions are correctly applied under those circumstances.
So there are ways in which we can deal with them, but again just to reiterate the point, our intent is to be as open and transparent as possible. We are you know responding to each and every one and it does incur a significant cost associated with them of 90 days across the whole 12 months of the organisation irrespective of who necessarily deals with them but certainly there are members of certain teams who spend an inordinate amount of time dealing with requests. I’m happy to take any questions on that Chair.”
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What was in Merseyside Fire and Rescue Authority’s 2 page response to the FOI consultation?
ICO Information Commissioner’s Office logo
Next is the response to the FOI consultation from the Merseyside Fire and Rescue Authority.
Again I’ll declare an interest as I’m alluded to in their response (in fact my profession is named) and my appeal to the Information Commissioners Office last year is explicitly referred to in a report going to councillors next week.
Now by their own figures, responding to all the FOI requests over the whole of last year (2015) used up the equivalent of ~0.375 of a full-time employee.
From what I remember, this means that they allocate more resources to their press office than FOI.
Staff wide Merseyside Fire and Rescue Service had last year an estimated 700 firefighters and I’d estimate 300 staff that aren’t firefighters (of course this is directly employed staff, not staff employed by contractors).
So 0.0375% of its staff budget (approx) is spent on answering FOI requests, the equivalent of around a third of a job of a full-time employee.
Below is the MFRA [Merseyside Fire and Rescue Authority] response to the FOI consultation, which you can compare to Liverpool City Council’s response.
Although it states it’s from the MFRA [Merseyside Fire and Rescue Authority] by the way it’s written “The Service considers” one assumes that as with LCC’s response it’s been drafted by officers. Unlike the attitude taken by Liverpool City Council Merseyside Fire and Rescue Service state they are "supportive of the Freedom of Information (FoI) Act".
Merseyside Fire and Rescue Authority
Freedom of Information Call for Evidence
Merseyside Fire and Rescue Authority (MFRA) would like to make the following comments in relation to questions 3 and 6 of the Independent Commission on Freedom of Information Call for Evidence:
Question 3:What protection should there be for information which involves candid assessment of risk? For how long does such information remain sensitive?
The Service considers that there should be some protection for public authorities in relation to the release of risk registers. High level information about risks and mitigation is appropriate for release and many authorities will publish this as a matter of course. When a request is made for detailed risk registers relating to on-going projects or activities, this is much more difficult for this Service to deal with. It is vital when ensuring that public services are being delivered effectively, that all risk are considered and that staff feel able to “think the unthinkable”. Often these risks are mitigated, but they still remain in risk registers and are open to misinterpretation or being sensationalised. The Service would request that consideration be given to risk registers of this type only being release after the project is completed.
Equally releasing risk mitigation measures prior to the completion of the project may compromise the
measures themselves exposing services to additional risk.
Question 6: Is the burden imposed on public authorities under the Act justified by the public interest in the public’s right to know? Or are controls needed to reduce the burden of FoI on public authorities? If controls are justified, should these be targeted at the kinds of requests which impose a disproportionate burden on public authorities? What kinds of requests do impose a disproportionate burden?
The Service is supportive of the Freedom of Information (FoI) Act, and values its role in allowing people access to information and giving them the right to find out about matters and decisions that affect them. However, use of the Act has become increasingly popular and the volume of FoI requests has increased over the years. For example, the table below shows the increase in requests to MFRS since 2011:
Year
FoI Requests received
FoI requests believed to be for commercial purposes (as far as can be established with the information available)
2011
72
Not recorded
2012
82
Not recorded
2013
101
Not recorded
2014
138
13
2015
131
17
Dealing with this increase in requests has had an impact on the Service which for Merseyside Fire Authority undoubtedly places increased pressure on relatively small teams. Over the last four years, the Fire and Rescue Authority has had to make savings of £20 million as a result of Government spending cuts. The Authority is required to make a further £6.3 million savings in 2015/16. It is also clear that the Authority will also face further significant cuts over the course of the next Parliament. The Authority has already made significant reductions in its support services and staffing, which means there are fewer staff available to service FoI requests. To save £6.3 million in 2015/16, the Authority has identified another £2.9 million to be cut from support services, further reducing capacity.
Whilst the Service respects the rights of citizens to ask for information that may affect their lives and communities and recognises the role that journalists may play in seeking out inefficiencies or poor practices in the public sector, there is a cost associated with that. The staff collecting, collating, checking, redacting and authorising release of the requested information all have other work to do. As a result, dealing with a FoI request is likely to take staff away from core business.
What the Service believes is particularly difficult to justify is the extent to which commercial organisations use FoI to request information to develop new business leads or seek a commercial advantage. The private sector is effectively using the diminishing resources of the public sector for free, when those resources could be put to better use and there is no return on that investment for the public sector.
What we would ask the Commission to consider is either, levying a charge for such requests, or the ability for an organisation to refuse the request where the applicant is not able to demonstrate that the request is in the public interest.
Even when requests could be considered to be in the public interest, for example in relation to a public consultation on the Service’s plans, the enthusiasm of some members of the public to seek more and more detailed information can place significant pressure on a small authority. Five requests from one person for similar but subtly different complex information in the space of one or two months does result in disproportionate effort. This is despite the fact that individually, the cost of meeting the requests would not be sufficient to justify refusal and the subtle differences between requests rule out treating them as vexatious. It is the cumulative effect that has the impact.
It is also difficult to treat requests as vexatious or indeed classify the work required as excessive without it being perceived by the requestor or indeed the public or press as defensive – so in effect services provide the information for fear of being perceived as less than transparent.
Merseyside Fire & Rescue Service has been recording the time spent by all officers involved in processing all FoI requests since July 2015 (32 completed requests). Given it was already keen to understand and share the impact of such requests with the Authority and Government departments.
As such the total time spent since recording began has totalled 153 hours spread across a range of staff from administrators to the Chief Fire Officer. This equates to an average of 4.8 hours per request. If this was applied to the total number of requests received so far this year it would total 629 hours or 90 working days. With the lost time costs in the thousands.
This is resource that can be ill afforded during these times of austerity, so it is vital that the FoI requests processed are of valid public interest and not to further the profits of a commercial organisation.
The Service has welcomed the opportunity to contribute to this call for evidence and looks forward to the publication of the outcomes.
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EXCLUSIVE: Dan Stephens (Chief Fire Officer) states altered plans for Saughall Massie Fire Station will be submitted “either this month or early January [2016]”
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Merseyside Fire and Rescue Authority meeting 17th December 2015 L to R Treasurer, Deputy Chief Fire Officer Phil Garrigan, Chief Fire Officer Dan Stephens, Chair Cllr Dave Hanratty
At a meeting of councillors, on the Merseyside Fire and Rescue Authority held on the 17th of December 2015, Dan Stephens (Chief Fire Officer), gave an update on the progress of plans for a new fire station at Saughall Massie. You can read his report on this matter on Merseyside Fire and Rescue Authority’s website.
Dan Stephens said, “Paragraphs twenty-one to thirty on pages sixteen to eighteen provide an update on the Saughall Massie merger.
A pre-application for advice has been submitted to Wirral Borough Council on the 8th October and a planning meeting was held with planning officers from Wirral on the 4th of November.
Following on from this meeting a letter from Wirral planning officers was sent to the agents acting on behalf of the Authority, but unfortunately was given to a Wirral councillor beforehand.
That letter was subsequently passed on to the Liverpool Echo and the Wirral Globe who ran a story quoting sections of the letter. Clearly that was before we’d had sight of that.
I’ve since written to the Head of Regeneration and Planning at Wirral raising a number of issues that relate to that, and they are outlined within paragraphs twenty-six. Paragraph twenty-seven details the position over the medium pressure gas main which runs under the land.
Following on from the planning advice, the size of the station and the design that we would intend to submit a planning application on, has been significantly reduced to the point where the medium pressure gas main would no longer run underneath the main building, thus negating the requirement for it to be rerouted.
It is our intention to submit a full planning application, taking into account the pre-planning advice that we’ve received from Wirral at some point either this month or early January which would allow for consideration by the Planning Committee at some point next year possibly in April.
Paragraph thirty makes the point that any decision by Wirral to grant planning permission will almost certainly be referred to the Secretary of State. I need to make it clear to Members at this point that if planning permission is not granted, then the inevitable consequence will be the outright closure of West Kirby fire station with the resulting increase in response times.”
The reference to Secretary of State above refers to a government minister (however generally such decisions although taken in a minister’s name are decided by civil servants following the policy the minister decides upon).
The Chair of the Merseyside Fire and Rescue Authority referred later in the meeting to his desire that the press would write "good news" stories about Merseyside Fire and Rescue Service. The above story is either good or bad news depending on your political viewpoint.
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A farce at Wirral Council’s public question time (Act 1, Scene 1) No microphone, silent musical chairs & no answers
Public Question Time (Wirral Council) 15th December 2015 Mrs Nowell asking a question to Cllr Adrian Jones about a fire station at Saughall Massie
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Wirral Council Council meeting on the 15th December 2015 starting at public question time agenda item
Public question time at Wirral Council’s meeting on the evening of the 15th December 2015 was a farce. You can watch this in the video above. I’d better declare an interest as I was one of the two asking questions of Cllr Adrian Jones.
The first member of the public to ask a question was Mrs Nowell (yes it’s Christmas although I’m not making that name up), she was ushered to a chair by Patrick Sebastian to ask her question.
However there was no microphone there.
Cllr Phil Davies (giving up his chair for the second time this week having earlier this week given up the Chair of the Liverpool City Region Combined Authority) then gave up his chair for Mrs. Nowell. So in the Town Hall version of musical chairs (but without any music) everyone got a chair except Cllr Phil Davies who was left standing next to Mr. Tour.
The seasonal fun however did not end there!
Mrs Nowell got about four words into her question to be interrupted by Cllr Ann McLachlan sitting to her left who then apologised.
Mrs Nowell resumed her question which was,
"Given the substantial local opposition to Merseyside Fire and Rescue Service’s proposal to build a fire station directly adjacent to sheltered accommodation, will Wirral Borough Council Members honour their commitment, as set out in the 2020 Vision, to "empower locally" and attempt to gain a "deep and meaningful understanding of what local people want" by agreeing to "detailed engagement and conversation with local people" prior to gifting, releasing or selling the only significant publicly amenable green-space in Saughall Massie?"
The Mayor thanked her for the question.
Cllr Adrian Jones then replied as follows, "Mayor, it is customary to have some advance notice of the question! I’ve had no advance notice and therefore I’m very happy to give a written reply!"
I will point out at this stage that unlike myself Mrs Nowell submitted her question about a month before the meeting (which reminds me of the following famous poem I have rewritten for this):
Though the mills of Wirral Council grind slowly;
Yet they grind exceeding slowly;
Though with patience Cllr Adrian Jones stands waiting for the question,
Waiting for the question which he has done for a whole month,
He is never sent it.
The Mayor looked at Mrs Nowell and asked, "Is that OK for a written reply?"
She answered, "That means I don’t get to ask another question. I did email the question in plenty of time."
The Mayor then said to Cllr Adrian Jones, "Cllr Adrian Jones is it possible to give a reply? I understand that you don’t know the full details."
Cllr Adrian Jones answered, "Mr Mayor, I’ve had no advance notice of this, therefore I’ve done no research on this occasion, I’d be very happy to give a written reply but I think in any case it’ll have gone to planning, therefore it will be dealt with fully at that particular point."
The Mayor thanked Mrs Nowell for her question.
As Cllr Jones had now answered she asked the following supplementary, "Why was Cllr Blakeley not allowed to respond to Dan Stephens at the Regeneration meeting?"
The Mayor said, "Cllr Adrian Jones is the Cabinet Member for this particular question to be addressed to."
Cllr Adrian Jones said, "Had I been given some advance notice, I would have done something about it, I’m terribly sorry but we do have a system here as a courtesy, if you want to ask a question."
A councillor heckled, "But she’s done that!"
Surjit Tour said, "I’ll need to look into why the question and the issue about the question why it didn’t make its way to Cllr Jones and I’ll respond to that for that as regards to the process."
Cllr Jeff Green said, "Mr Mayor, we do have the Chair of the relevant select Committee, maybe Cllr Sullivan could answer that?"
Surjit Tour replied, "The appropriate form for a further question to come to Council around that advance notice of it, I appreciate the expectation was that it would be appropriate for a question to be asked in the circumstances."
The Mayor said, "OK, there seems to have been some sort of delay in the question, advance notice being got to the Cabinet Member or the Chair so we need to give them the opportunity to research that and give you a written response."
Mrs Nowell replied, "My second question, I don’t have to give notice of that you see!"
The Mayor said, "It’s called a supplementary question and unfortunately you’re unable to ask the supplementary because the substantive question hasn’t been answered and replied to."
Cllr Chris Blakeley said, "Can I ask, as I know Mrs Nowell submitted the question some time ago, why hasn’t it found its way to the Cabinet Member for a response to that?"
Surjit Tour replied, " I’ll have to look into to understand exactly what has happened."
Mrs Nowell said, "I sent the question to you."
There was laughter from councillors at this point.
Surjit Tour continued, "Yes, that’s agreed, apologies for not following the process, I just need to understand why Cllr Adrian Jones didn’t get the question and then I’ll report back to Council after that moment."
Cllr Adrian Jones said, "Mr Mayor I would be very happy to deal with this question at the next meeting and it goes without saying that I promise to do everything within my power to protect Council." There was more laughter at this point.
The Mayor said, "Under those circumstances, could I ask that the question be asked at the next Council meeting? Where opportunity will have been given to the.. Adrian Jones?"
Cllr Chris Blakeley added, "It may well be too late Mr Mayor!"
The Mayor finished by saying "We’re going to have to leave it to the written reply then I’m sorry."
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