Last year I asked to inspect these invoices during the 30 day inspection period and was told this was unreasonable. I was asked to submit a FOI/EIR request (which I did). Now having submitted a FOI/EIR I am told Merseytravel estimate it would take 11 hours (within the 18.5 hour FOI cost limit). Merseytravel estimate that the activities of consulting and redacting (which don’t count towards the 18.5 hour limit) would take an estimated further roughly 24 hours that Merseytravel wish to class the request as vexatious instead.
What was the government’s response to the Independent Commission on Freedom of Information report?
I will start this by declaring some interests in the area of freedom of information. I am the appellant in case EA/2016/0033 (which is a case with the First Tier Tribunal (Information Rights) involving decision notice FS50596346). A further case involving an appeal to the First Tier Tribunal (Information Rights) involving decision notice FER0592270 was put in the post on Monday, but is yet to be received by the Tribunal. There are also numerous ICO decision notices that have been issued about FOI requests I have made.
Introducing new fees for FOI requests (above those that can be already charged) has been ruled out partly because this would lead to a reduction in FOI requests from the media and others.
The ministerial statement also refers to updated codes of practice published. Interestingly one of the requirements of this new code of practice will be for public authorities with a hundred or more full-time equivalent employees to publish detailed statistics on how they deal with FOI/EIR requests.
As the ministerial statement states “The publication of such data not only provides accountability to the public, but allows the Information Commissioner to identify and target poorly performing public authorities more effectively.”
Certainly once the new code of practice is published, a new requirement on local government bodies to publish this detailed information will provide an insight into how FOI/EIR requests are dealt with.
There is also going to be revised guidance on the application of section 14(1) (vexatious or repeated requests). The ministerial statement states that they expect this only to be used in “rare cases” and that “the ‘vexatious’ designation is not an excuse to save public officials embarrassment from poor decisions or inappropriate spending of taxpayers’ money”.
There is also going to be consideration by the government of whether to include a requirement to publish expenses and benefits in kind received by senior public sector executives. It seems FOI requests have been made for these, but turned down on data protection grounds.
As I’m the Appellant in the Tribunal case EA/2016/0033 (which isn’t classed as “active” yet (as “active” in such cases is defined as from the point when a hearing date is set), I can reveal that the only major development in that case is that Wirral Metropolitan Borough Council has been added as a party to the appeal as second respondent (originally the case was just between myself and the Information Commissioner).
I’m still awaiting the Information Commissioner’s response (due by the 17th March 2016) and Wirral Council’s response is due not more than 21 days after they receive the Information Commissioner’s response.
Once the Information Commissioner responds and Wirral Metropolitan Borough Council responds to the Information Commissioner’s response, I have up to 14 days to respond to their responses.
The Tribunal have asked all parties to notify them of any dates they are not available between 6th June 2016 and 29th July 2016, so I presume a hearing date will be set on some day between those two dates.
I’m sure there are those that could comment better than me about a practice direction that leads to hearings discussing the secret information while one of the parties to the appeal is excluded (secret hearings) and a guide to keeping information secret from one of the parties to the case.
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I will point out (in case you’re wondering why it has taken nearly three years to get to that point) that this request has also been the subject of two other ICO decision notices FS50509081 and FS50569254.
So far Wirral Council has stated that the information requested would cost too much (section 12), that to give me the information would be prejudicial to the effective conduct of public affairs (section 36), that they class that doing an internal review of that decision as vexatious (section 14) and now finally when all of those prior decisions have been proven to be flawed, they withheld some of the information requested claiming it’s personal information (section 40).
My feeling about this is that Wirral Council, who refer to their approach in public as “open and transparent” have tried to engage in attrition warfare with myself and the regulator ICO over this request.
So what did I request that was released a fortnight ago? One document was minutes of the Members’ (Members’ means Councillors’) Equipment Steering Group meeting held on the 7th February 2013. The other document was minutes of the Members’ Training Steering Group held on the 19th March 2013.
Quite what is in these two documents that requires a nearly three year cover up about their contents, I’m not sure. The scanned pages Wirral Council have supplied for the meeting of the Members’ Equipment Steering Group and the Members’ Training Steering Group are unfortunately scanned at a low resolution which can make them hard to read. So I will reproduce them both below starting with the Members’ Equipment Steering Group. As that mentions audio recording and webcasting of committee meetings I will declare an interest.
The part of this request that relates to the minutes of a meeting of the Headteachers and Teachers Joint Consultative Committee I have appealed to the First Tier Tribunal (Information Rights) and am at the stage of awaiting ICO’s response to my appeal.
Actions from Members’ Equipment Steering Group Meeting held on 7 February 2013
Actions from the last Meeting
I Pads had been discounted at the last meeting.
Members’ Homepage and Toolkit – Homepage
Members would consider the proposed content and come back to XXXXXXXXXXXX with any suggestions for inclusion.
The proposed detail of the Members’ Toolkit was endorsed and XXXXXXXXXXXX would progress it.
Councillor Equipment Device Options XXXXXXXXXXXX would obtain a price for the following devices:
430 i 5
430 i 3
A recommendation will be made to the Cabinet subject to price and specification
Councillor Equipment Printer Options
The preferred printer was HP Office Jet 8000. In exceptional circumstances only would a Member’s own printer be connected to the network.
Wireless in Wallasey Town Hall
All Committee Rooms in the Town Hall would have wifi facilities by the time Members were in possession of their new IT kit.
Officers will look at the possibility of Members being able to receive emails on smart phones via wifi.
Councillor Equipment Rollout Timetable – Personally owned Ipad
A system would be purchased, configured and installed by IT Services to allow Members to use their own Ipads.
This was an option. Members will keep their existing bag.
This was an option.
– Telephone Handsets
Members would keep their existing handsets.
New furniture would not be purchased
– Modern.gov Application
Modern.gov could provide an Application so that Personal Devices could access "Exempt Items" at a cost of £3000. This would not be taken up
– Political Offices
Office staff would not be included in the new equipment roll out.
– Windows XP and Office 2010
– Broadband Choices
– Further Members’ Survey
Councillor Case Management Systems
Use of Personal Electronic Devices
Use of Councillors own equipment
iPad and HP Slate Autumn Trial
Audio Recording and Webcasting of Committee Meetings
Date and Time of Next Meeting
XXXXXXXXXXXX to canvass Members and arrange the next meeting.
Any Other Business
Below should be the Action Minutes of the Member Training Steering Group held on the 19th March 2013. On the original there is a third column with OD (Organisational Development) Team written next to points two to nine. It’s easier to write this in HTML without creating the way it is laid out as a table so I have left this out. I’ve also left out the page numbers and the filename/path on Wirral Council’s computer that it’s stored. However these can be viewed on the original.
The group welcomed XXXXXXXXXXX who is an associate tutor with the LGA and will be providing an overview of the Leadership Programme for Members
Noted that Cllr Clements did not attend the last meeting and apologies had been received.
Minutes and Matter Arising
a) Terms of Reference
Agreed that the Chief Executive would be included as support for the group.
The group would continue to sign off requests for training and will continue to be mindful of the travel and accommodation costs.
Agreed that OD would report back on a quarterly basis training approval decisions.
Agreed to put the terms of reference into themes and circulate.
b) Recruitment to Leadership Modules
Agreed that Members should forward names to XXXXXX to reserve a place on the course and to contact XXX should they have any queries.
An introduction session will run on the 10th April a Flyer will be sent out providing the details of the session. XXXXX explained that the Pre course briefing would cover an introduction to the programme followed by the completion of the Myers Briggs Type Indicator questionnaire as this would form the basis for the content on Module one, feedback would then be provided either face to face, which preferable or over the phone, prior to the programme commencing on the 8th May.
It was noted that participants are required to attend both modules to benefit from the programme.
c) Elected Member training onto the committee calendar
Agreed to escalate the request to include members training from the skills for Wirral programme into the committee calendar.
Standing Item – Training Update (since last meetings)
a) 13th February – Developing the Council of the Future
Noted that 30 attended the event with a mixture of feedback
Agreed to chase up the feedback from this event and share with Members.
Agreed to look at how Member’s could be provided with more opportunities to feedback and participate in these events.
b) Public Health and Wellbeing: 20 February 2013
Noted that 9 attended with very good feedback
c) Understanding Local Government Finance: 27 February 2013
Noted that 8 attended with very good feedback
d) Media Skills
Noted that 2 attended with very good feedback
e) High Level Communications Skills
Noted that 5 attended with very good feedback
f) Attendance on training
Agreed to continue to send reminders for training but as a rolling programme of events that month and to include flash reminder the day of the training that spaces are available.
Standing Item – Upcoming training ( Members Development Programme)
a) Effective Surgeries and Caseload Management Training
Agreed to look at were we are up to with an Electronic System for case load Management. Meeting already arranged with IT to discuss this and Members IT training, feedback would be provided at the next meeting.
b) Training Venues
Agreed to look at other venues rather than The Laurie’s Centre for Elected Member training sessions and move the training already book to other venues, to minimise costs.
Standing Item – Approved Duty Requests
No outstanding approved duties
a) Spending for Approved duties
Members to discuss and feedback as to how they would like to spend monies for approved duties, agreed to monitor on a case by case basis.
b) Feedback from Events Attended
Agreed to look at feedback from events and if particularly effective consider developing a Wirral version of the event.
Standing Item – Budget
a) Profile 2012-2013
Budget profile discussed and noted that there would be an under spend this year. Details shared with the group.
b) Profile 2013-2014
Approximately £13,000 has been committed to date. Budget to be monitored at each meeting.
c) Spending for Approved Duties
Agreed to explore options around external funding available.
Members Development Charter.
a) PDP Returns
46 PDP have been completed with 6 scheduled for April. This would bring the total to 52 PDP completed, which takes us over the 75% requirement for completion of the Members Charter. Agreed to continue to encourage the completion of all outstanding PDPs.
Members Development Programme Accreditation
a) Agreed for flyer to be sent to all Elected Members to promote the programme
b) Additional information from ilm to be sent to Cllr Harney
a) 4th April New Constitutional Event 6pm – 8pm Floral
b) 16 May Key Transformation and Improvement Agenda Session
Suggestion from Cllr Glasman Ethics and Conduct.
c) Training for Members – Directorships and Trusts
Advert to be sent to Elected Members when programme agreed
Date and Time of next meeting
30 April 2013 4 – 5.15pm
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Councillors on the Performance and Scrutiny Committee (Merseyside Fire and Rescue Authority) discuss Freedom of Information requests (starts at 15m 35s) (12th January 2016)
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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The FOI request this relates to was made through the excellent whatdotheyknow.com website on the 29th March 2013. It’s for minutes of the meetings of 26 different panels, statutory committees, advisory committees and working parties that councillors are appointed to by Wirral Council.
In September 2014, the Information Commissioner’s Office issued 9 page decision notice FS50509081. In a nutshell that decision notice stated that by the 13th October 2014 Wirral Council had to:
b) advise whether it held the minutes of these meetings or not.
Wirral Council did not respond to the decision notice by the 13th October 2014. Instead it took a further three weeks than was allowed and Wirral Council responded on the 4th November 2014. Minutes of seven meetings were supplied (some minutes were supplied with some information blacked out). In response to other parts of the request it provided links to its website.
This left nine disputed parts of the request which were in relation to the bodies below (I’ll use the original numbering). JCC stands for Joint Consultative Committee and Members means councillors. I provide under each one what it’s remit was:
4 (School Appeals Panel)
To consider, as part of a statutory review process, appeals against decisions by the Local Authority (or the Governors of voluntary or aided schools) concerning the allocation of places in primary and secondary schools, and decisions by governing bodies concerning the exclusion of pupils.
The School Appeals Panel is drawn from a “pool” of lay members or members with experience in education. However, Councillors are ineligible to serve on Appeals Panels for schools under local authority control.
5 (Standing Advisory Committee on Religious Education (SACRE))
SACRE is responsible for advising the local authority on matters concerning the teaching of religious education and collective acts of worship; it decides on applications for determination of cases in which requirements for Christian collective worship are not to apply; and may require the local authority to review its agreed syllabus.
8 (Adoption / Fostering Panels)
As part of a wider membership, to determine applications for the adoption and for the fostering of children.
10 (Unified Waiting List Management Advisory Board)
To consider appeals from applicants who consider they have been unfairly treated or unfairly excluded from the waiting list, having exhausted the Steering Group appeals procedure.
11 (Discharge from Guardianship by Wirral Council under the Mental Health Act 1983 Panel)
To hear requests to discharge service users subject to guardianship upon the application of a professional responsible for their care.
15 (Headteachers and Teachers JCC)
To meet with headteachers’ and teachers’ representatives to discuss educational issues.
18 (Members’ Training Steering Group)
To advise on the preparation of the annual programme of training for Council members and on individual applications to attend courses.
19 (Members’ Equipment Steering Group)
To review IT equipment provision for members.
26 (Safeguarding Reference Group)
Established by Cabinet on 15 April 2010 for the purpose of ensuring that the most senior community leaders of the Council are enabled to carry out their responsibilities of safeguarding children and adults in Wirral.
Minutes of a Unified Waiting List Management Advisory Board meeting (part 10 of the request) Wirral Council merely stated “Officers are investigating if this Board has ever met/if there are any minutes available and we will answer this part of your enquiry as soon as possible.”
So I requested an internal review of the application of these exemptions on the 12th November 2014. On the 30th April 2015 Wirral Council responded to the internal review request. I’ll point out here that internal reviews are supposed to be completed within 40 days, but Wirral Council took 5 months.
Wirral Council also pointed out that since the Council’s housing stock was transferred out of Wirral Council’s control in 2009, that the Unified Waiting List Management Advisory Board (part 10 of the request) hadn’t met.
In relation to part 21 (Hilbre Island Nature Reserve Management Committee) Wirral Council stated “There are no minutes from 2013 the Hilbre Island Nature Reserve Management Committee as the present Committee was formed in March 2014.”
However Wirral Council still regarded the rest of the internal review request to be vexatious.
This decision notice found in relation to part 4 (School Appeals Panel) and part 11 (Discharge from Guardianship by Wirral Council under the Mental Health Act 1983 Panel) that Wirral Council does not hold information related to this part of the request.
This finding on the school appeals panels I find odd since the school appeals panel meets at Wallasey Town Hall. In response to a previous FOI request Wirral Council stated that it pays the taxi expenses for school appeals panel members and Wirral Council employees from the Legal & Member Services section of Wirral Council take the minutes of these meetings. Apparently Wirral Council states that there were School Appeal Panel meetings in 2012 but as they only keep the decision notices for 2 years that now it’s 2015 that Wirral Council don’t have them any more.
ICO also found that Wirral Council didn’t hold meetings of the Hilbre Island Nature Reserve Management Committee and believed Wirral Council when it stated “There are no minutes from 2013 the Hilbre Island Nature Reserve Management Committee as the present Committee was formed in March 2014.”
This is disputed by both Cllr Chris Carubia and Cllr Pat Williams as you can see by their response to a tweet below:
ICO also stated in its decision notice that Wirral Council had incorrectly applied section 14(1) (vexatious or repeated requests) to parts 15 (Headteachers and Teachers JCC), 18 (Members’ Training Steering Group), 19 (Members’ Equipment Steering Group) and 26 (Safeguarding Reference Group) of the request, because “these elements of the request are not vexatious”.
ICO did decide that Wirral Council had correctly applied section 14(1) to part 8 (Adoption/Fostering Panels) of the request because it deemed it to be vexatious (but is clarified in the decision notice as being a “disproportionate burden”). Wirral Council supplied the minutes of one adoption panel meeting and one fostering panel meeting to the Information Commissioners Office which came to a total of 95 pages. Wirral Council estimated it would take 23.5 hours of staff time (just over 15 minutes a page) to make the necessary redactions.
However the minutes of the Headteachers and Teachers JCC meeting, Members’ Training Steering Group meeting, Members’ Equipment Steering Group meeting and Safeguarding Reference Group came to less than 15 double-sided pages (30 sides of A4).
The decision notice also states “The complainant will not receive a response to some parts of his request until more than two years after he submitted it.”
Either Wirral Council or myself could appeal this ICO decision notice to the First-Tier Tribunal (Information Rights) within the next 28 days.
Here are some quotes from the decision notice (committee in the first quote refers to Hilbre Island Nature Reserve Management Committee).
“The Council, however, confirmed to the Commissioner on 20 July 2015 that, having undertaken a thorough search, it does not hold any Committee minutes from 2013 or earlier.
ICO believed Wirral Council so I suppose these published minutes of the Hilbre Island Nature Reserve Management Committee published on Wirral Council’s website from the 13th April 2007, 23rd November 2006, 13th July 2005 and even as far back as 6th April 2001 are just figments of my imagination. Perhaps I’m not “on message” enough!
Here’s another quote:
“The Council’s information manager had calculated that it took 70 hours and £1,750 to provide its response to the complainant dated 4 November. It argued that the amount of time the information management team had to spend on locating, retrieving and reading information falling within the scope of the request had a detrimental impact on the team.”
On the 4th November 2014 Wirral Council provided 22 A4 pages of information. The rest it either said it didn’t hold, was already on its website or that an exemption applied. That’s £79.54 per a page (or over 3 hours per an A4 page) of released information! How can it have had a “detrimental impact on the team” when Wirral Council took the 35 days the decision notice allowed plus an extra 22 days!
“The Council says this work would cause a disproportionate burden because the request does not appear to have an inherent purpose or value.”
So knowing what and how councillors make important decisions on the public’s behalf doesn’t have an “inherent purpose or value”?
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