Upper Tribunal (Administrative Appeals Chamber) case involving information request to Wirral Council by Martin Morton listed for public hearing on Thursday 26th April 2018

Upper Tribunal (Administrative Appeals Chamber) case involving information request to Wirral Council by Martin Morton listed for public hearing on Thursday 26th April 2018

Upper Tribunal (Administrative Appeals Chamber) case involving information request to Wirral Council by Martin Morton listed for public hearing on Thursday 26th April 2018

Liverpool Civil & Family Court, Vernon Street, Liverpool, L2 2BX (where the hearing for First-Tier Tribunal case EA/2017/0108 would have been held) which was cancelled and transferred to the Upper Tribunal (Administrative Appeals Chamber)
Liverpool Civil & Family Court, Vernon Street, Liverpool, L2 2BX (where the hearing for First-Tier Tribunal case EA/2017/0108 would have been held) which was cancelled and transferred to the Upper Tribunal (Administrative Appeals Chamber)

On the 26th April 2018 next week starting at 10.30 am is a public hearing in Upper Tribunal case GIA/3037/2017.

This involves a Freedom of Information request made to Wirral Metropolitan Borough Council by Anthony Martin Morton on the 5th August 2016.

This was refused twice by Wirral Council and then this refusal was appealed to the regulator the Information Commissioner.
Continue reading “Upper Tribunal (Administrative Appeals Chamber) case involving information request to Wirral Council by Martin Morton listed for public hearing on Thursday 26th April 2018”

What’s in a whistleblowing report about Wirral Council’s “dismal decade?”

What’s in a whistleblowing report about Wirral Council’s “dismal decade?”

What’s in a whistleblowing report about Wirral Council’s “dismal decade?”

                                 

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

On the 5th August 2016 a former Wirral Council employee Martin Morton made a Freedom of Information request to Wirral Council for a copy of a report commissioned from Nick Warren on whistleblowing by former Wirral Council employees.

After Wirral Council had ignored his request for a month, Martin Morton requested an internal review on the 6th September 2016.

Wirral Council completed that internal review and communicated the results to Martin Morton on the 3rd October 2016 refusing to supply the report in its entirety.

The refusal was made by Wirral Council’s Monitoring Officer Surjit Tour on the basis that it would prejudice the effective conduct of public affairs (section 36).

Martin Morton then appealed Surjit Tour’s decision to the regulator ICO (the Information Commissioner’s Office).

During the course of ICO’s investigation, Wirral Council apologised for how long it had taken to reply to Martin Morton‘s request, but added an additional reason for refusing some of the information giving personal information (section 40) as a further reason.

On the 27th April 2017 ICO issued a decision notice (FS50649341). The decision notice required some of the information requested to be released to Martin Morton within 35 calendar days as ICO disagreed with Wirral Council and felt there were parts of the report to which neither section 36 nor section 40 applied.

Wirral Council released that information yesterday which comprise paragraphs 1-8 of the report (although part of paragraph 4 is redacted) and paragraph 76. I’ve put in a line break between different pages and in the conversion from print to HTML there may be some minor formatting changes.

I include what has been released below yesterday as it is rather short. A series of XXXX represents the redacted bit. I’ve made two additions. The first is that I’ve linked the words “precise terms of reference” in paragraph 4 to the terms of reference as the report makes more sense when read together with the terms of reference. The second is that I’ve made it clearer that paragraphs 5-75 haven’t been released of the report.



Report


A. INTRODUCTION

  1. This review arises from events which formed part of a dismal decade for Wirral Borough Council (“Wirral”) culminating in a remarkable joint statement from the Leader of the Council and the then Chief Executive (CE) which have accepted a number of failings and recognised the need to improve Wirral’s corporate governance, culture and workforce policies.

  2. Part of the statement concerned the Highways and Engineering Services procurement exercise (“HESPE”). This work was put out to tender; there were bids from the private sector and an in house bid from the Wirral “DLO”. It is convenient to state here some important dates concerning HESPE.







    Dec 2007 Announcement in the Official EU Journal.
    13 March 2008 Qualifying bidders chosen
    2 July 2008 Bidders invited to tender according to a Bill of Quantities.
    4 Sept 2008
    (later extended to
    5 Sept 2008)
    Tender return date.
    16 Oct 2008 Contract formally awarded to COLAS.


  3. The DLO bid was therefore unsuccessful. This meant that the DLO staff would transfer to COLAS from April 2009.



  4. In November 2008 some employees of the DLO made a disclosure on the advice of their Trade Union to Wirral’s CE. I will refer to them collectively as “the Whistleblowers”. They had all worked for Wirral for many years. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX I have been asked to review the treatment of the Whistleblowers. It is not necessary to recite precise terms of reference.

  5. I have interviewed the Whistleblowers and other witnesses and have read a large number of documents provided by Wirral. I thank Wirral staff for the co-operation which I have received. I will not deal with all the evidence because I want to make my report as short and as readable as I can. If required, I can expand on or explore any individual issue.

  6. I have of course used hindsight. That is in the very nature of a review. There is nothing wrong with this provided I do not use it to criticise people or actions unfairly.

    B. WHAT THE WHISTLEBLOWERS HAVE DONE FOR WIRRAL


  7. It took Wirral about four months to respond to the Whistleblowers. They were dissatisfied and went to the Audit Commission. The Commission took the


    unusual step of issuing a public report identifying serious weakness in Wirral’s arrangements for:-

    (a) Declaration of Interests.
    (b) Internal Audit
    (c) Reporting to Elected Members
    (d) Dealing with Whistleblowers
    (e) Evaluating Tenders

  8. As a result Wirral has altered and improved its procedures in these important areas of work. It seems clear that the weaknesses would not have been exposed, nor would the improvements have come about, if the Whistleblowers had not had the courage to speak out. I am not aware that Wirral has acknowledged publicly or privately the contribution which the Whistleblowers thus made to our community.

    (Paragraphs 5-75 are redacted).

    L. CONCLUSION



  1. The Whistleblowers have not received sufficient credit for exposing poor practice within Wirral. The “informal” nature of the first investigation resulted


    in them having to work under great stress for several months. While they were still Wirral employees, their names were disclosed to their new employer as being in some way untrustworthy. Their health and their jobs were adversely affected over an extended period.

    Nicholas Warren 6th October 2015.


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What did a 3 year FOI battle with Wirral Council reveal about councillors’ equipment and training?

What did a 3 year FOI battle with Wirral Council reveal about councillors’ equipment and training?

                                                    

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

A fortnight ago, required to do so by ICO decision notice FS50596346 Wirral Council finally provided some more information in response to my FOI request first made on the 29th March 2013.

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.

Mind you this is Wirral Council. Wirral Council is where responses to FOI requests from the press get delayed because they have to be "signed off" by the former head of their press office Emma Degg and their Monitoring Officer Surjit Tour?

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

  1. Actions from the last Meeting
    I Pads had been discounted at the last meeting.

  2. Members’ Homepage and Toolkit
    – Homepage
    Members would consider the proposed content and come back to XXXXXXXXXXXX with any suggestions for inclusion.

    – Toolkit
    The proposed detail of the Members’ Toolkit was endorsed and XXXXXXXXXXXX would progress it.

  3. 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
  4. 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.
  5. 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.

  6. 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.

    – Laptop
    This was an option. Members will keep their existing bag.

    – Router
    This was an option.

    – Telephone Handsets
    Members would keep their existing handsets.

    – Furniture
    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

  7. Councillor Case Management Systems
  8. Use of Personal Electronic Devices
  9. Use of Councillors own equipment
  10. iPad and HP Slate Autumn Trial
  11. Audio Recording and Webcasting of Committee Meetings
  12. Date and Time of Next Meeting

    XXXXXXXXXXXX to canvass Members and arrange the next meeting.

  13. 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.


Action Minutes

Member Training Steering Group

19 March 2013

Apologies -: Surjit Tour, XXXXXXXXXXXX

Attending -: Cllr McLachlan (Chair), Cllr Clements, Cllr Glasman, Cllr Gilchrist, Cllr Harney, Cllr Hornby, Chris Hyams, XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

  1. Welcome and introductions

    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.

  2. 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.

  3. 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.

  4. 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.

  5. 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.

  6. 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.

  7. 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.

  8. 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

  9. AOB

    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

  10. Date and Time of next meeting

    30 April 2013 4 – 5.15pm



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After 2 reasons for refusing a FOI request are overturned by ICO decision notices, Wirral Council just picks another!

After 2 reasons for refusing a FOI request are overturned by ICO decision notices, Wirral Council just picks another!

After 2 reasons for refusing a FOI request are overturned by ICO decision notices, Wirral Council just picks another!

                                            

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

In March 2013 I made a Freedom of Information Act request to Wirral Council. You can view it on the whatdotheyknow.com website here.

Yesterday I had another refusal at internal review by Mr. Tour of Wirral Council of the part of the request that still remains outstanding.

This was after ICO (the Information Commissioner’s Office) intervened with decision/enforcement notice FS50509081 on the 28th September 2014 and followed by decision/enforcement notice FS50569254 on the 25th July 2015.

However parts 15, 18, 19 and 26 of the request were refused by Wirral Council again.

All those four parts of the request have been withheld because Wirral Council decides that section 36 (prejudice to effective conduct of public affairs) is engaged. The minutes of the Safeguarding Reference Group (part 26) have an additional reason for refusal because of section 40 (personal information).

I of course plan to appeal this latest refusal to ICO again (which probably won’t come as a surprise to anyone). Essentially however the problem I face to do with this request (which may be familiar to those who make FOI requests and have more experience than I do).

Public body decides on a reason to refuse a FOI request initially and at internal review (this stage could take up to 60 days). ICO disagree with the reason and issue a decision notice requiring the public body not to use that reason for refusing that request and to either provide the information or another reason.

So the public body comes up with another reason. That reason is challenged at internal review (again adding another 60 days). That reason is then appealed to ICO who disagree with the reason and ICO issue another decision notice.

The public body picks another reason to refuse the request and eventually it becomes a merry-go-round. The public body clearly really doesn’t want to give up the information, yet ICO is giving the public body a loophole each time a decision notice is issued by giving them a chance to pick another reason.

This Youtube clip (it should play at the bit that’s relevant) sums up how I feel about this latest development in this FOI request.

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ICO requires Wirral Council to supply internal audit report within 35 days

ICO requires Wirral Council to supply internal audit report within 35 days

ICO requires Wirral Council to supply internal audit report within 35 days

                                                  

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

The Information Commissioner’s Office (which I will refer to as ICO) have issued a decision notice about a Freedom of Information Act request made by Nigel Hobro to Wirral Council. The unique number for this decision notice is FS50559883. It’s not yet on ICO’s website but should be in the near future. ED: Updated 04/09/2015 I looked on ICO’s website and it has been published since this article was written and decision notice FS50559883 can be viewed on ICO’s website.

The Freedom of Information Act request is for an “incomplete internal audit investigation report” and was originally made on the 20th August 2014.

As you can read on the whatdotheyknow.com website Surjit Tour (Monitoring Officer) of Wirral Council refused this request on the 26th November 2014 and at internal review it was refused by Eric Robinson (Chief Executive) on the 4th June 2015.

The reasons given by both Surjit Tour and Eric Robinson for not supplying the information requested (both times an apology was given for taking too long to reach a decision) were two-fold:

  • section 36(2)(c) Prejudice to effective conduct of public affairs
  • section 40(2) Personal information

The decision notice shows that ICO disagrees with the first of those reasons (section 36(2)(c)), but agrees with the second reason for part of the information (section 40(2)).

Interestingly the Information Commissioner’s Office agreed with Wirral Council that applying section 36(2)(c) was reasonable but disagreed with the public interest test element.

ICO requires Wirral Council to take the action below within 35 calendar days of the date of the decision notice dated the 24th August 2015. This is assuming that Wirral Council do not appeal the decision:

    "Disclose the withheld information with redactions made under section 40(2) for the names of individuals within the report"

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