What did Surjit Tour answer to questions about a Freedom of Information request to Wirral Council at the First-tier Tribunal (Information Rights) hearing (EA/2016/0033) (continued)?
What did Surjit Tour answer to questions about a Freedom of Information request to Wirral Council at the First-tier Tribunal (Information Rights) hearing (EA/2016/0033) (continued)?
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, 4 and 5 of the witness statement of Andrew Roberts.
Hearing: EA/2016/0033
Court/Room: Tribunal Room 5, 3rd Floor
Address: 35 Vernon St, Liverpool, Merseyside L2 2BX
Date/time: 16th June 2016 10:15 am
First-tier Tribunal (Information Rights) (General Regulatory Chamber)
First-tier Tribunal Judge Mr. David Farrer QC
First-tier Tribunal Member Mr. Michael Hake
First-tier Tribunal Member Dr. Malcolm Clarke
Appellant: Mr John Brace
First Respondent: ICO (Information Commissioner’s Office)
Second Respondent: Wirral Metropolitan Borough Council
The below is an incomplete record written up from my handwritten notes made at the hearing. The below does not cover some of the sections when I am speaking due to the difficulties in taking notes as doing that you end up facing the paper you’re writing on.
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.
Wirral Council take nearly 20 months to respond to a FOI request for SACRE meeting minutes that should only take 20 days
Wirral Council take nearly 20 months to respond to a FOI request for SACRE meeting minutes that should only take 20 days
I wanted to write this piece to show how hard it is to get information out of Wirral Council, that is routinely published elsewhere.
On the 29th March 2013, I made this Freedom of Information Act request for the minutes of the previous meeting of Wirral Council’s Standing Advisory Committee on Religious Education (SACRE).
This document on Brent Council’s website on page 14 states “The main meetings of SACRE are public and open to all. Under the Freedom of Information Act 2000 all SACRE documents are required to be available for public scrutiny.”
Under Wirral Council’s internal rules this committee is not however administered by Legal and Member Services, but instead serviced by officers from the Children and Young People’s Department. It doesn’t for example appear in the list of public meetings on Wirral Council’s website.
So this is what happened when I tried to request the minutes of one meeting of SACRE.
29th March 2013 FOI request made using excellent whatdotheyknow website. 29th April 2013 Wirral Council exceeds 20 day limit for responding to request and is sent a reminder 30th April 2013 Request refused on s. 12(1) cost grounds (require >18.5 hours of work) due to:
“a great deal of Personal Data and Sensitive Data, which would have to be reviewed and redacted were applicable.”
30th April 2013 Internal review of decision of 30th April 2013 requested. It is pointed out to Wirral Council that redacting documents does not count towards the 18.5 hour limit. 30th July 2013 Internal review decision also refuses request, not on s.12(1) cost grounds but on s.14 (vexatious or repeated request) grounds. 14th August 2013 Internal review decision appealed to Information Commissioners Office 8th September 2014 ICO issue decision notice FS50509081
Decision notice states (in relation to this part of the FOI request) Wirral Council breached s.10 and incorrectly applied s.12 and s.16:
s.10 (time for compliance with request) due to failure to respond to FOI request within 20 working days
s.12 (exemption where cost of compliance exceeds appropriate limit) (failed to provide evidence)
s.16 (duty to provide advice and assistance) (breached requirement)
ICO require Wirral Council to take the following steps within 35 calendar days (deadline 13th October 2014) or alternatively appeal the decision notice within 28 days of the 8th September 2014:
Issue a response to the complainant’s request that does not rely upon section 12(1) of the FOIA or regulation 12(4)(b) of the EIR.
Provide advice and assistance to the complainant about which of the requested information is held by the council, and therefore falls under the terms of the FOIA or EIR.
So the minutes supplied (this is an extract of the first three agenda items) look like this (I’ve added annotations in italics with an asterisk):
MINUTES OF THE MEETING OF THE STANDING ADVISORY COUNCIL FOR RELIGIOUS EDUCATION HELD ON 7 FEBRUARY 2013
Present:
Names Redacted
* Groups A to D are as follows (who makes up SACRE is determined by s.390 of the Education Act 1996:
Group A “a group of persons to represent such Christian denominations and other religions and denominations of such religions as, in the opinion of the authority, will appropriately reflect the principal religious traditions in the area;”
Group B “except in the case of an area in Wales, a group of persons to represent the Church of England;”
Group C “a group of persons to represent such associations representing teachers as, in the opinion of the authority, ought to be represented, having regard to the circumstances of the area;”
Group D “a group of persons to represent the authority.” (see below)
Councillor W Clements
Group D
Councillor W Smith
Group D
Councillor P Kearney
Group D
Councillor B Mooney
Group D
In Attendance: Names redacted
Name redacted in the Chair
1. WELCOME
Name redacted formally welcomed everyone to the meeting and introduced the first item on the agenda – the Election of a Wirral SACRE Chair for the year 2013/14. .
2. ELECTION OF POSTS
Name redacted was proposed by Councillor Clements and seconded by Name redacted. By a unanimous show of hands Name redacted was duly elected to the post of Vice Chair.
Name redacted nominated Name redacted for the post of Vice Chair and this was seconded by Name redacted. By a unanimous show of hands Name redacted was duly elected to the post of Vice Chair.
3. SACRE Business Matters
Apologies for absence were received from Names redacted, Councillor T Smith, Name redacted.
So advice anyone, should I request an internal review of the decision to redact the names? As these are public meetings, how are the public or press supposed to find out when they meet? If I requested further SACRE meeting minutes do you think they’d take 20 months (rather than the 20 days required under FOI) to supply them?
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Received through the post today from the Information Commissioner’s Office (ICO) was the result of an appeal to them of an internal review of Wirral Council’s dated 30th July 2013 which related to a request made by myself on the 29th March 2013.
The whole decision goes on for nine A4 pages (plus one page accompanying letter from ICO). It’s not been published yet on ICO’s website but will be in the near future. Wirral Council (and myself) have 28 days from the date of the decision made on the 8th September 2014 to make our minds up as to whether either or both parties wishes to appeal this decision notice to the First Tier Tribunal (Information Rights).
Below is the text of the decision notice (but not the accompanying one page letter).
Reference: FS50509081
Freedom of Information Act 2000 (FOIA)
Decision notice
Date:
8 September 2014
Public Authority:
Wirral Metropolitan Borough Council
Address:
Wallasey Town Hall
Brighton Street
Wallasey
Wirral
CH44 8ED
Complainant
Mr John Brace
Address
Jenmaleo
134 Boundary Road
Bidston
Wirral
CH43 7PH
Decision (including any steps ordered)
———————————————————————————————————————-
1. The complainant has requested information from Wirral Metropolitan Borough Council (“the council”) about the last minuted meetings that were held by 24 different committees. The council refused to comply with the requests on the basis that to do so would exceed the appropriate limit in costs set by section 12(1) Freedom of Information Act (“the FOIA”), and would be manifestly unreasonable under regulation 12(4)(b) of the Environmental Information Regulations (“the EIR”).
2. The Commissioner’s decision is that the council has failed to provide sufficient evidence for the application of section 12(1) of the FOIA and regulation 12(4)(b) of the EIR, and has breached the requirement of section 16(1) of the FOIA and regulation 9(1) of the EIR by failing to provide advice and assistance to the complainant. The council has further breached section 10(1) of the FOIA and regulation 5(2) of the EIR failing to respond to the request within 20 working days.
3. The Commissioner requires the council to take the following steps to ensure compliance with the legislation:
Issue a response to the complainant’s request that does not rely upon section 12(1) of the FOIA or regulation 12(4)(b) of the EIR.
Provide advice and assistance to the complainant about which of the requested information is held by the council, and therefore falls under the terms of the FOIA or EIR.
4. The council must take these steps within 35 calendar days of the date of this decision notice. Failure to comply may result in the Commissioner making written certification of that fact to the High Court pursuant to section 54 of the FOIA and may be dealt with as a contempt of court.
Request and response
———————————————————————————————————————-
5. On 29 March 2013, the complainant wrote to the council and requested the following:
“Please could you provide minutes of the previous meetings of the following committees. If minutes whether in draft form or not are not available of the previous meeting, please provide the minutes of the meeting directly before. I have given each of the committees a number in order which can be used in future communications to avoid misunderstandings.
If minutes for any of these committees are not available in electronic form and to provide them in digital form would exceed the 18.5 hours rule then I am happy to collect paper copies from Wallasey Town Hall instead.
1. Complaints Panel (School Curriculum and Related Matters)
2. Education Staff Panel
3. Headteacher Appointments Panel
4. School Appeals Panel
5. Standing Advisory Committee on Religious Education (SACRE)
6. Wirral Schools Forum (Funding Consultative Group)
7. School Admissions Forum
8. Adoption / Fostering Panels
9. Housing Review Panel
10. Unified Waiting List Management Advisory Board
11. Discharge from Guardianship by Wirral Council under the Mental
Health Act 1983 Panel
12. Independent Remuneration Panel
13. Youth and Play Service Advisory Committee
14. Corporate Parenting Group (formerly known as Virtual School
Governing Body)
15. Headteachers and Teachers JCC
16. SEN Advisory Committee
17. Wirral Schools’ Music Service Consultative Committee
18. Members’ Training Steering Group
19. Members’ Equipment Steering Group
20. Birkenhead Park Advisory Committee
21. Hilbre Island Nature Reserve Management Committee
22. Wirral Climate Change Group
23. Anti-Social Behaviour Partnership Body
24. Birkenhead Town Centre Consultative Group
25. Wirral Trade Centre Working Party
26. Safeguarding Reference Group”
6. The council responded on 30 April 2013 and refused the requests under section 12(1) of the FOIA, but advised the information sought by request 12 was available on the council’s webpages.
7. The council provided an internal review on 30 July 2013 in which it revised its position and refused the requests under section 14(1), and further advised that the information sought by request 13 was available on the council’s webpages.
Scope of the case
———————————————————————————————————————-
8. The complainant contacted the Commissioner on 14 August 2013 to contest the council’s response.
9. Following the Commissioner writing to the council on 10 February 2014, the council further revised its position on 19 June 2014 and refused the requests under section 12(1) of the FOIA and regulation 12(4)(b) of the EIR. The complainant subsequently advised the Commissioner that he wished to contest this new position.
10. The Commissioner has identified that the information sought by requests 12 and 13 is available on the council’s webpages. This was confirmed in the council’s initial response and subsequent internal review. The complainant has subsequently confirmed to the Commissioner that he accepts that this information is already publically available, and only wishes to contest the council’s response in respect of the remaining 24 requests.
11. The Commissioner therefore considers that the scope of this case is the determination of whether the council’s refusal under section 12(1) of the FOIA and regulation 12(4)(b) is correct.
Reasons for decision
———————————————————————————————————————- Is part of the requested information environmental?
12. Information is “environmental” if it meets the definition set out in regulation 2 of the EIR. Environmental information must be considered for disclosure under the terms of the EIR. In the circumstances of this case, the Commissioner does not have sight of the requested information, but has identified that part of it derives from committees that are responsible for environmental matters, including climate change and local parkland. As such, the Commissioner considers it highly likely part of the requested information that derives from those committees would be environmental information as defined by regulation 2 of the EIR.
Section 12 (FOIA) and regulation 12(4)(b)(EIR) – Cost of compliance
13. Section 12(1) of the FOIA states that:
Section 1(1) does not oblige a public authority to comply with a request for information if the authority estimates that the cost of complying with the request would exceed the appropriate limit.
14. The Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 (“the Fees Regulations”) sets the appropriate limit at £450 for the public authority in question. Under the Fees Regulations, a public authority may charge a maximum of £25 per hour for work undertaken to comply with a request. This equates to 18 hours work in accordance with the appropriate limit set out above.
15. A public authority is only required to provide a reasonable estimate or breakdown of costs and in putting together its estimate it can take the following processes into consideration:
determining whether it holds the information;
locating the information, or a document which may contain the information;
retrieving the information, or a document which may contain the information; and
extracting the information from a document containing it.
16. The EIR do not have a provision where a request can be refused if the cost of complying with it would exceed a particular cost limit. Rather the EIR contain an exception, namely regulation 12(4)(b), which the public authority can rely on to refuse a request if they consider it to be ‘manifestly unreasonable’ on the basis that the cost of compliance with the request would be too great.
17. Although the Fees Regulations are not directly applicable to the EIR, in the Commissioner’s view they can provide a useful point of reference when public authorities argue that complying with a request would incur an unreasonable cost and therefore could be refused on the basis of regulation 12(4)(b).
18. However, there are additional factors that should always be considered in assessing whether the costs of complying with a request for environmental information are manifestly unreasonable, in particular the proportion of burden on the public authority’s workload (taking into consideration the size of the public authority), and the individual circumstances of the case (including the nature of the information requested and the importance of the issue at stake). In additional to these factors, regulation 12(4)(b) is also subject to a public interest test.
Can the requests be aggregated?
19. In cases were a single piece of correspondence contains multiple requests for information, the Commissioner’s position is that each request is separate. This was confirmed by the Information Tribunal in the case of Fitzsimmons v Information Commissioner and the Department for Culture, Media and Sport (EA/2007/0124).
20. Under the Fees Regulations, public authorities can aggregate the cost of complying with requests if they ‘relate, to any extent’, to the same or similar information’. The Commissioner interprets this phrase broadly, and considers that providing there is an overarching theme or subject matter that connects the requests, the cost of compliance with each request can be aggregated.
21. In the circumstances of this case the Commissioner has reviewed the correspondence in which the complainant requested information, and has identified that it contains 24 numbered requests for specific information. The complainant has advised the Commissioner that he has made these requests for the purpose of ensuring transparency on the part of councillors who have taken part in committees. The Commissioner is therefore satisfied that the requests are connected through an overarching theme, and that the cost of compliance can therefore be aggregated.
Can the requests spanning different access regimes be aggregated?
22. It is the Commissioner’s position that when considering the cost of compliance under section 12(1) of the FOIA or regulation 12(4)(b) of the EIR, requests that clearly fall under one access regime cannot be aggregated with those that fall under the other.
23. However, when an individual request is likely to span both access regimes, then the Commissioner recognises that the initial collation of the information will incur costs before the information can be subsequently assessed to decide which access regime applies. As such, the Commissioner considers it appropriate to consider the costs of such collation under the FOIA.
24. In the circumstances of this case, the Commissioner considers it highly likely that the information sought in requests 20, 21, and 22 will include environmental information (such as that relating to the environmental remit of the committee), and non-environmental information (such as that relating to the administration of the committee). The Commissioner is therefore satisfied that it is appropriate to consider the initial collation of any held information under the FOIA.
Does the aggregated cost of compliance exceed the appropriate limit?
25. The council’s position is that the combined costs of identifying whether the information is held in response to the 24 requests, in conjunction with any ensuing costs of locating and retrieving the information, would exceed the appropriate limit of 18 hours.
26. The council has explained to the Commissioner that the requests cover a broad range of committees, many of which are advisory in nature, and have minutes that are not electronically available through the information system that the council uses to manage its committees. The council has also suggested that due to many of the committees being advisory in nature, they may not subject to the terms of the FOIA or EIR.
27. The Commissioner, in reviewing the content of the council’s response, has identified that it has not provided the results of any sampling exercise, nor has it provided a detailed time or cost estimate to support its position that the cost of compliance would exceed the appropriate limit.
28. The Commissioner has further identified that whilst committee minutes may not be directly retrievable through the normal information system that the council uses to administrate committee minutes, he considers it reasonable to consider that the information would still be contained within a relevant filling system, either manual or electronic, which would allow the council to both identify whether the information was held, and take steps to collate it.
29. The Commissioner also considers that the council’s position that a proportion of the committees are not subject to the FOIA or EIR, further weakens the council’s grounds for refusal. Should specific committees not fall under the council’s responsibility, this would suggest to the Commissioner that the council’s compliance with the requests would only comprise meeting its duty to confirm or deny whether the information is held under section 1(1) of the FOIA or regulation 5(1) of the EIR.
30. Having considered the above factors, the Commissioner has concluded that the council has not provided sufficient evidence to support its refusal under section 12(1) of the FOIA and regulation 12(4)(b) of the EIR. As the Commissioner has concluded that regulation 12(4)(b) of the EIR is not engaged, he does not need to consider the required public interest test under regulation 12(1)(b).
Section 16 (FOIA) and regulation 9 (EIR) – Advice and assistance
31. Section 16(1) of the FOIA imposes an obligation on a public authority to provide advice and assistance to a person making a request, so far as it would be reasonable to do so. Section 16(2) states that a public authority is to be taken to have complied with the provisions in the Section 45 Code of Practice (“the Code of Practice”) in relation to the provision of advice and assistance.
32. Regulation 9(1) of the EIR likewise imposes an obligation on a public authority to advice and assistance to a person making a request, as far as it would be reasonable to do so.
33. In the circumstances of this case, the Commissioner has reviewed the council’s refusal dated 19 June 2014, does not consider that advice and assistance has taken place, despite the council refusing the request on the basis of cost. The Commissioner further considers that the council’s position that some of the relevant committees do not fall under the control of the council, suggests that advice and assistance about the extent of what information is held by the council could have been provided. Therefore, in respect of its revised position dated 19 June 2014, the council has breached section 16(1) of the FOIA and regulation 9(1) of the EIR.
Section 10(1) of the FOIA and regulations 5(2) of the EIR – Time for compliance
34. Section 10(1) of the FOIA and regulation 5(2) of the EIR requires that an information request should be responded to within 20 working days following the date of receipt. In this case a response was not provided until after that length of time. The council therefore breached section 10(1) of the FOIA and regulation 5(2) of the EIR.
35. Either party has the right of appeal against this decision notice to the First-tier Tribunal (Information Rights). Information about the appeals process may be obtained from:
36. If you wish to appeal against a decision notice, you can obtain information on how to appeal along with the relevant forms from the Information Tribunal website.
37. Any Notice of Appeal should be served on the Tribunal within 28 (calendar) days of the date on which this decision notice is sent.
Signed (signature of Andrew White) Andrew White
Group Manager
Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF
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Cabinet (Wirral Council) 10th October 2013 | Minutes silence (Sylvia Hodrien) | Birkenhead Priory Heritage Lottery Grant | Declarations of Interest | Minutes | Annual Governance Statement 2012/2013
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Cabinet (Wirral Council) 10th October 2013 | Minutes silence (Sylvia Hodrien) | Birkenhead Priory Heritage Lottery Grant | Declarations of Interest | Minutes | Annual Governance Statement 2012/2013
Prior to the first item the Chair of Wirral Council’s Cabinet, Cllr Phil Davies asked for people to stand for a minute’s silence in response to the news of the death of former councillor Sylvia Hodrien. Once the minute’s silence had finished, he reported the news (which was already reported by the Wirral Globe two days ago) that Wirral Council had been successful in obtaining a Heritage Lottery Grant for Birkenhead Priory of £393,100.
He said that the money would be used to improve the visitor experience, for a digital learning pack for schools and would lead to opportunities for volunteers. Cllr Davies was “delighted” at this “really good news story” and thanked the team at Wirral Council that had applied for the funding. He asked if Cllr Chris Meaden wanted to make any comments?
Cllr Chris Meaden referred to Jo McGuire the conservationist and pointed that this was the second Heritage Lottery Grant that Wirral Council had received for Birkenhead Priory. She also thanked the team.
Cllr Phil Davies suggested that for item 17 (Proposed changes to school funding formula) that they make a block interest declaration as many of the Cabinet were school governors. Cabinet agreed to a block declaration of interest.
Cllr Harry Smith asked if he needed to declare that his brother was a lay reader at Birkenhead Priory? Cllr Phil Davies told them he didn’t need to.
Cllr Phil Davies, Cabinet Member for Finance said that the Annual Governance statement was an important document and a draft had been presented to the Audit and Risk Management Committee meeting of the 18th September. He wanted to make a few general comments, first that he was pleased to see references to the progress made on getting Council’s finances on a sustainable footing which was welcome. Cllr Davies also said the report mentioned work on a new vision for Wirral Council and that there would be a councillor’s training session on Saturday to look at that.
He said that they’d be having an annual policy Council meeting in November of this year to look at the future direction of the Council and refresh the Corporate Plan. Ed – The policy Council meeting will be in December as was mentioned in an earlier blog post.
Cllr Davies said they’d done a lot of work on improving their corporate management procedures and making sure they got their risk management in good order. In section five of the Annual Governance Statement he said there were a number of challenges ahead, such as the bad debts issue, saying “I think we’ve taken quite strong and prompt action to address the bad debts”. Cllr Davies wanted to draw Cabinet’s attention to the conclusion which referred to the auditors being pleased about considerable progress made to address the governance issues and that this had been reflected in the recent Corporate Peer Challenge report that was debated in Cabinet and Council.
He said that it also recognised a number of developments put in place to address the further challenges in section five and that they needed to agree a plan and review process to check that the items were addressed. Cllr Davies described it as “generally an encouraging report and lots of progress has been made but a fair amount of progress still to be done”. He asked Cabinet to agree the recommendations, which were that the Annual Governance Statement, action plan for 2012/2013 and updated code on corporate governance were all approved by Cabinet. Cabinet agreed this.