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)?

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.

This continues from two earlier blog posts headlined What were the 6 A4 pages of partially redacted minutes of a Headteachers’/Teachers’ Joint Consultative Committee meeting and the name of a LGA Associate Tutor that Wirral Council disclosed voluntarily in response to a First Tier-Tribunal (General Regulatory chamber) hearing (case number EA/2016/0033) about a Freedom of Information request first made in March 2013? and What was in the 5 A4 page witness statement of Andrew Roberts (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)?.

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.

Surjit Tour (Monitoring Officer (Wirral Council)) at the Coordinating Committee held on 15th June 2016
Surjit Tour (Monitoring Officer (Wirral Council)) at the Coordinating Committee held on 15th June 2016

Continue reading “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)?”

After 2 years, 10 months and 3 ICO decision notices will Wirral Council finally provide a response to a FOI request about councillors?

After 2 years, 10 months and 3 ICO decision notices will Wirral Council finally provide a response to a FOI request about councillors?

                                                                            

ICO Information Commissioner's Office logo
ICO Information Commissioner’s Office logo

Last week I received another decision notice from the Information Commissioner’s Office through the post about this freedom of information act request I made to Wirral Council on the 29th March 2013.

Yes it’s now 2016, but this request has already been the subject of decision notice FS50509081 (dated 8th September 2014) (9 pages) and decision notice FS50569254 (dated 29th July 2015) (13 pages).

This decision (decision notice FS50596346) dated the 25th January 2016 is 11 pages long.

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.

Out of the remaining four parts to this request, Wirral Council released the minutes of the Safeguarding Reference Group meeting of the 19th April 2011 a fortnight before the decision notice is dated.

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.

A copy of the text of the decision notice is below (although there may be some minor formatting changes between this web version and the print version). Edited on 15/2/2016 The decision notice (FS50593646) has now been published on ICO’s website.


Reference: FS50596346

Freedom of Information Act 2000 (FOIA)

Decision notice

Date: 25 January 2016

Public Authority: Wirral Metropolitan Borough Council
Address: Wallasey Town Hall
Brighton Street
Wallasey
Wirral
CH44 8ED

Complainant: John Brace

Address: Jenmaleo
134 Boundary Road
Bidston
Wirral
CH43 7PH

Decision (including any steps ordered)



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:

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Reference: FS50596346

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.

Background


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.

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Reference: FS50596346

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.

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Reference: FSSOS96346

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

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Reference: FS50596346

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

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Reference: FS50596346

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

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Reference: FS50596346

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

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Reference: FS50596346

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

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Reference: FS50596346

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

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Reference: FS50596346

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.

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Reference: FS50596346

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:

First-tier Tribunal (Information Rights)
GRC & GRP Tribunals
PO Box 9300
LEICESTER
LE1 8DJ

Tel: 0300 1234504
Fax: 0870 739 5836

Email: GRC@hmcts.gsi.gov.uk
Website: www.justice.gov.uk/tribunals/general-regulatory-chamber

53. 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.

54. 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 Pamela Clements)………..

Pamela Clements
Group Manager
Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF

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What were the 9 most viewed stories on this blog over the last week?

What were the 9 most viewed stories on this blog over the last week?

                                                      

ICO Information Commissioner's Office logo
As nearly half of the stories this week are about freedom of information requests the logo above is of ICO (Information Commissioner’s Office) who are the regulator

It’s time again to look back at the 9 most viewed stories of the last week (with a few comments on each of them).

1. 5 different versions of one political cover up but which one will you choose?

The BIG/ISUS issues rumble on with a government minister making sure an audit report isn’t provided in response to a FOI request.

2. Isle of Man company cancels plans for ICT College in Birkenhead

Wirral Council is forced to go back to the drawing board on plans to lease the Conway Building and Hamilton Building in Birkenhead as Isle of Man based International Centre for Technology Ltd pulls the plug on the project.

3. Incredible: FOI reveals “the Council are seeking to draw a line under matters in relation to Mr Morton”

A FOI request reveals a behind the scenes email about how to manage Martin Morton.

4. Why after 2 years, 9 months and 13 days have Wirral Council U-turned on refusing a FOI request for minutes of the Safeguarding Reference Group?

Another story about a FOI request and a long running battle to persuade Wirral Council to produce minutes of a meeting about safeguarding.

5. Does fire safety construction flaw at PFI school affect Wirral schools?

A story about how a flaw at one of Merseyside’s school built using PFI led to fire safety problems, are any of the PFI schools on Wirral affected?

6. Is this what an “open and transparent” Council looks like?

A question answered by a number of blacked out pages from the BAM Nuttall Highway Services contract.

7. Deputy Chief Fire Officer Phil Garrigan tells councillors “90 working days” are lost each year in responding to FOI requests

Continuing a theme running through a number of these stories about freedom of information requests, Merseyside Fire and Rescue Service’s Deputy Chief Fire Officer Phil Garrigan gives his view on freedom of information.

8. Cllr Foulkes on Mersey Ferries “we cherish that service and want to maintain it”

Cllr Foulkes responds to the campaign to save Woodside ferry terminal.

9. Why is Merseytravel spending £57,000 + VAT to monitor this blog?

The top story in last week’s round up details how much Merseytravel spend on media monitoring.

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Why after 2 years, 9 months and 13 days have Wirral Council U-turned on refusing a FOI request for minutes of the Safeguarding Reference Group?

Why after 2 years, 9 months and 13 days have Wirral Council U-turned on refusing a FOI request for minutes of the Safeguarding Reference Group?

                                                   

ICO Information Commissioner's Office logo
ICO Information Commissioner’s Office logo

Before I start this epic tale, I would just like to point out that someone has started a petition demanding an apology from the Labour administration at Wirral Council for their answer at the last Council meeting about information requests and their poor record on FOI requests.

A long time ago (29th March 2013), I made this FOI request for the minutes of meetings that happen behind closed doors (not public meetings) for committees that councillors sit on. Part of this request (part 26) was for minutes of the Safeguarding Reference Group.

I think it is better to provide a chronology at this stage as to how this part of the request went (references are to this part of the request).

29th March 2013 FOI request made.
29th April 2013 Internal review requested due to lack of reply.
30th April 2013 Internal review sent by Wirral Council. Request refused on cost grounds (section 12), but offer made to send minutes of Safeguarding Reference Group.
30th April 2013 Clarification over meaning of request sent/internal review as response on 30th April 2013 was first response.
30th July 2013 Internal review changes reason from cost grounds (section 12) to vexatious or repeated request (section 14).
14th August 2013 Decision appealed to Information Commissioner’s Office.
19th June 2014 Wirral Council amends reason for refusal from vexatious or repeated request (section 14) to cost grounds (section 12).
8th September 2014 ICO issue decision notice FS50509081. Decision notice overturns cost grounds (section 12) reason, finds Wirral Council failed to provide advice and assistance (section 16) and hasn’t responded to request within 20 days (section 10(1)). Wirral Council given 35 days to provide information or different reason.
4th November 2014 FOI request for minutes of Safeguarding Reference Group refused on section 40 (personal data) grounds.
12th November 2014 Internal review of 4th November 2014 decision requested.
30th April 2015 After ICO intervention Wirral Council replies. Wirral Council refuses internal review on section 14 (vexatious or repeated request) grounds.
Unknown date Decision appealed to ICO.
29th July 2015 ICO issued second decision notice (FS50569254). Decision notice overturns section 14 (vexatious or repeated request) reason for all of request except adoption/fostering panel part. Finds Wirral Council have breached section 10 (again).
3rd September 2015 Wirral Council respond to decision notice FS50569254. Minutes of Safeguarding Reference Group now refused on section 36 (prejudice to effective conduct of public affairs) and section 40 (personal data).
7th September 2015 Decision appealed to Information Commissioner’s Office (ICO).
11th January 2016 Wirral Council supply minutes of Safeguarding Reference Group held on 19th April 2011.

Wouldn’t it have just been easier (as they made the offer to send the minutes of the Safeguarding Reference Group in April 2013) to supply these minutes then? How much officer time was wasted in refusing six pages of minutes on a committee that 7 councillors sat on and at least 5 senior managers (although one wasn’t present for the meeting).

The sixteen page serious case review about Child A, Child B, Child C & Child D referred to in the minutes dated 6th April 2011 can be found on Wirral Council’s website.

Three of the 7 councillors present are no longer councillors and at least three of the senior managers have either gone into early retirement or left Wirral Council.

There are 4 parts in the six pages of minutes where names have been blacked out. Did it really take 2 years, 9 months and nearly a fortnight to do this?

What was the point in spending over 2 years and 9 months refusing this request? The minutes they’ve supplied refer to a further meeting on the 20th July 2011 so although this is welcome, they may not be the right ones! I requested the minutes of the meeting immediately before my request on the 29th March 2013. Is the implication that the incoming minority Labour administration in 2011 scrapped the Safeguarding Reference Group (which was re-established on the 15th December 2014)? I’m not sure!

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ICO issues 2nd decision notice stating Wirral Council breached more laws in how it handled a FOI request

ICO issues 2nd decision notice stating Wirral Council breached more laws in how it handled a FOI request

ICO issues 2nd decision notice stating Wirral Council breached more laws in how it handled a FOI request

                                          

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ICO Information Commissioner’s Office logo

So far I’ve written three blog posts about this one FOI request, which in chronological order are ICO issues decision notice stating Wirral Council breached 4 laws in how it handled a FOI request (9th September 2014), Wirral Council take nearly 20 months to respond to a FOI request for SACRE meeting minutes that should only take 20 days (10th November 2014) and Why after 2 years, 3 months and 19 days have Wirral Council U-turned on refusing a FOI request for minutes of a public meeting that they claimed was vexatious? (18th July 2015).

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:

a) respond to the FOI request without relying on either section 12(1) of the Freedom of Information Act 2000 c.36 or Regulation 12(4)(b) of the Environmental Information Regulations 2004. The first relates to a costs exemption and the second relates to that “the request for information is manifestly unreasonable”.

and

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 School Appeals Panel meeting (part 4 of the request) were refused based on section 40 (personal information) of the Freedom of Information Act 2000.

Minutes of a Standing Advisory Committee on Religious Education meeting (part 5 of the request) were provided but with names other than that of councillors blacked out based on section 40 (personal information) of the Freedom of Information Act 2000.

Minutes of the Adoption/Fostering Panels (part 8 of the request) were refused based on section 40 (personal information) of the Freedom of Information Act 2000.

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.”

Minutes of a Discharge from Guardianship by Wirral Council under the Mental Health Act 1983 Panel (part 11 of the request) were refused based on section 40 (personal information) of the Freedom of Information Act 2000.

Minutes of a Headteachers and Teachers Joint Consultative Committee meeting were refused based on section 36 (prejudice to the effective conduct of public affairs) of the Freedom of Information Act 2000.

Minutes of a Members’ Training Steering Group meeting were refused based on section 36 (prejudice to the effective conduct of public affairs) of the Freedom of Information Act 2000.

Minutes of a Members’ Equipment Steering Group meeting were refused based on section 36 (prejudice to the effective conduct of public affairs) of the Freedom of Information Act 2000.

Finally, minutes of a Safeguarding Reference Group meeting were refused based on section 40 (personal information) of the Freedom of Information Act 2000.

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’s response was that section 14 (vexatious or repeated requests) of the Freedom of Information Act 2000 applied and it didn’t have to do an internal review.

This decision was then appealed to the Information Commissioner’s Office.

On the 17th July 2015, Wirral Council did a U-turn. In respect of part of the internal review that challenged obscuring names (other than councillors) in minutes released of the Standing Advisory Committee on Religious Education (part 5 of the request), I’d pointed out that the minutes of this public meeting were open to public inspection because of regulation 7 of the Religious Education (Meetings of Local Conferences and Councils) Regulations 1994. Wirral Council agreed with me and released the complete minutes of the SACRE meeting (which meets in public).

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.

On the 29th July 2015 the Information Commissioner’s Office issued a further 13 page decision notice (FS50569254).

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:

However, ICO stated that Wirral Council breached section 10 (time for compliance with request) of the Freedom of Information Act 2000 with regards to part 5 (Standing Advisory Committee on Religious Education (SACRE)) of the request and part 10 (Unified Waiting List Management Advisory Board) because “it did not disclose information or provide a response in relation to these parts within 20 working days”.

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.

So do you think that now Wirral Council can’t rely on section 12 (exemption where the cost of compliance exceeds appropriate limit) or section 14 (vexatious or repeated requests) in respect to the Headteachers and Teachers JCC meeting, Members’ Training Steering Group meeting, Members’ Equipment Steering Group meeting and Safeguarding Reference Group meeting part of this request that I’ll finally get the information?

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!

and another

“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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