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

                                          

ICO Information Commissioner's Office logo
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:

https://twitter.com/cllrccarubia/status/622150465715859456

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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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?

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?

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?

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

Wirral Council have over the years discussed the issue of Freedom of Information at many public meetings. I wanted to write about my experience of one request where it took 2 years and 3 and a half months for Wirral Council to release some of the information I requested.

Way back on the 29th March 2013 I made a FOI request to Wirral Council for minutes of various panels, statutory committees, advisory committees and working parties that councillors are on.

I asked merely for the minutes of the meeting held before making the request. One of these (numbered 5 on my list) was the minutes of the Standing Advisory Committee on Religious Education (SACRE).

This is what happened next.

20 working days went past and Wirral Council didn’t respond to the request, so on the 29th April 2013 I requested an internal review of Wirral Council’s lack of response.

On the 30th April 2013 Wirral Council replied refusing the request based on section 12 and claimed it would take longer than the 18.5 hours allowed to respond to the request.

I clarified what appeared to be a misunderstanding in the way I had phrased the original request and requested an internal review of this decision disputing that it would take over the 18.5 hour limit.

The internal review came back on the 30th July 2013, it changed the decision from refusing this part of the request on cost grounds (section 12) to refusing it on section 14 grounds (vexatious or repeated requests).

On the 14th August 2013 I appealed this decision to the Information Commissioners Office (ICO).

On the 19th June 2014 Wirral Council amended its response. It still refused this part of the request but now decided to amend its reason for withholding the information. It was no longer withheld relying on section 14 (vexatious or repeated requests) but back to section 12 (exemption where cost of compliance exceeds appropriate limit). The parts of the request that could be described as environmental information were refused using Regulation 12(4)(b) of the Environmental Information Regulations 2004 as being “manifestly unreasonable”. This is the EIR equivalent of the Freedom of Information Act’s vexatious exemption.

On the 8th September 2014 the Information Commissioner’s Office issued a decision notice for this request (FS50509081).

The 9 page decision notice said that Wirral Council had breached section 10(1) of the Freedom of Information Act 2000 and regulation 5(2) of the Environmental Information Regulations 2004 by not responding to this request within the first 20 working days of making it.

In addition to this it had breached s.16(1) of the Freedom of Information Act 2000 and regulation 9(1) of the Environmental Information Regulations 2004 which require Wirral Council to provide advice and assistance to those making requests.

Finally the decision notice required Wirral Council to issue a fresh response to this request within 35 calendar days of the 8th September 2014 that did not rely upon the exemption in section 12 of the Freedom of Information Act 2000 (cost grounds) or Regulation 12(4)(b) of the Environmental Information Regulations 2004 (that the environmental part of the request was “manifestly unreasonable”.

On the 4th November 2014 Wirral Council released redacted minutes of the Special Advisory Committee on Religious Education’s meeting of the 7th February 2013. Apart from the councillors on the committee anybody else on the committee had their name replaced by “name redacted”.

The minutes now looked like this:

Name redacted was proposed by Councillor Clements and seconded by Name redacted. By a unanimous show of hands Name redacted was duly elected to the post of Vice Chair.

Name redacted nominated Name redacted for the post of Vice Chair and this was seconded by Name redacted. By a unanimous show of hands Name redacted was duly elected to the post of Vice Chair.

Their response stated why the names had been removed, relying on a section 40 exemption for personal information.

I consider that part of the requested information is exempt information under Section 40 (2) of the Freedom of Information Act 2000, in that the Complainant is asking for information which is personal data, in respect of which he is not the data subject. I consider that the disclosure of the requested information would contravene the second data protection principle that personal data shall be obtained only for one or more specified and lawful purposes and shall not be further processed in any manner incompatible with that purpose or those purposes. Certain individuals named in the Minutes dated 7 February 2013 (not including Councillors) would have a legitimate expectation that their personal data would not be further processed in a manner incompatible with the specified and lawful purposes of the Standing Advisory Council for Religious Education. I consider that the Complainant’s request for information can be met by giving him a redacted copy of the minutes dated 7 February 2013, which redacts the names of certain individuals and these are attached.

On the 12th November 2014 I requested an internal review of this (also challenging other information they had withheld). This is what I stated about this part of the request:

“5. Standing Advisory Committee on Religious Education (SACRE)

This relates to the minutes of the meeting held on 7th February 2013.

By statute this meeting meets in public. Another part of statute allows me to request the names and personal addresses of those on the committee. Other local authorities routinely publish the minutes of these SACRE public meetings. They do not redact the information you have.

My internal review on the redactions is then on the basis that:

a) the minutes relate to a meeting held in public
b) because of the above there is no legitimate expectation of privacy

You state “would have a legitimate expectation that their personal data would not be further processed in a manner incompatible with the specified and lawful purposes of the Standing Advisory Council for Religious Education.”

I will give more detail as to the lawful purposes of the SACRE referred to in relation to meeting minutes.

Regulation 7 of The Religious Education (Meetings of Local Conferences and Councils) Regulations 1994

“7. (1) After a meeting the following documents shall be available for inspection by members of the public at the offices of the authority until the expiration of six years beginning with the date of the meeting, namely,—

(a) a copy of the agenda for the meeting;
(b) a copy of so much of any report for the meeting as relates to any item during which the meeting was open to members of the public; and
(c) a copy of so much of the minutes of the meeting as relates to any such item.”

The minutes of the meeting have been held in the last 6 years. Therefore I have an existing right of inspection to a copy of the minutes in unredacted form. Therefore the names of people in the minutes cannot have the private and personal nature that you ascribe to this information.

Secondly in addition to the names, the Group (ranging from A to C) of the individuals present has also been removed. Unless there’s only one representative from that group, merely the group letter
cannot be used to identify an individual.

Therefore I am asking for an internal review based of the information that has been withheld not being provided.”

No response was received in response to the internal review request, so I complained to ICO again.

On the 30th April 2015 (nearly 6 months after the internal review request that are supposed to take a maximum of 40 days) Wirral Council responded.

They stated it would take 32 hours to do a proper internal review, so just classed the request for an internal review as “vexatious” (see section 14 of the Freedom of Information Act 2000).

Understandably I complained to ICO again.

Today (over 8 months since the last internal review request that they claimed was “vexatious”) Wirral Council got back in touch.

They now want to “amend their response”. Apparently the bit about the SACRE meeting minutes was not vexatious. They no longer seek to rely on the exemption contained in section 40 of the Freedom of Information Act 2000.

The minutes of the SACRE meeting of the Standing Advisory Council for Religious Education held on the 7th February 2013 were provided including names.

So for a request made on the 29th March 2013, the information was finally given out on the 17th July 2015 whereas FOI requests are required to be answered within 20 working days.

However, this change of heart of Wirral Council wasn’t just about the part of the request for a meeting of the Special Advisory Council on Religious Education. Their response to the part of the request for minutes of a meeting of the Hilbre Island Nature Reserve Management Committee was modified as follows:

Environmental Information Regulations 2004

Part 21

Hilbre Island Nature Reserve Management Committee

I enclose an extract from an email provided to the Information Management Team which was as follows:-

“There are no minutes from 2013 the Hilbre Island Nature Reserve Management Committee as the present Committee was formed in March 2014.”

This is the reason that the council responded to your original request that it did not hold any information

I asked a councillor on Twitter about whether the Hilbre Island Nature Reserve Management Committee existed prior to 2014.

Two councillors were kind enough to reply to my question. Cllr Chris Carubia stated “From the discussions today I know it has been in existence for over 5 years at least”.

Cllr Pat Williams replied, “Yes I was a proud member for a number of years.”

I include copies of the tweets below.

https://twitter.com/cllrccarubia/status/622150465715859456

Personally I believe the two Lib Dem councillors (one of whom was on the Hilbre Island Nature Reserve Management Committee) rather than Wirral Council’s officially stated position and I think I should draw to the attention of the Information Commissioner’s Office how their view differs from what Wirral Council states.

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Wirral Council take nearly 20 months to respond to a FOI request for SACRE meeting minutes that should only take 20 days

Wirral Council take nearly 20 months to respond to a FOI request for SACRE meeting minutes that should only take 20 days

Wirral Council take nearly 20 months to respond to a FOI request for SACRE meeting minutes that should only take 20 days

                                   

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

I wanted to write this piece to show how hard it is to get information out of Wirral Council, that is routinely published elsewhere.

On the 29th March 2013, I made this Freedom of Information Act request for the minutes of the previous meeting of Wirral Council’s Standing Advisory Committee on Religious Education (SACRE).

Just as a bit of background as to what the Standing Advisory Committee on Religious Education is. The Education Act 1996 c.56 has s.390 to s.397 on these committees and there are also regulations called the The Religious Education (Meetings of Local Conferences and Councils) Regulations 1994 which have the following regulations relevant to this:

Regulation 3 determines that the Standing Advisory Committee on Religious Education meets in public. Unusually the regulations also states that they can’t exclude the public or press except for disorderly conduct.

The public have a right to inspect a copy of the minutes of its meetings for up to 6 years after they’ve happened (also agendas and reports).

Wirral Council even has to give three days advance notice of SACRE meetings.

This document on Brent Council’s website on page 14 states “The main meetings of SACRE are public and open to all. Under the Freedom of Information Act 2000 all SACRE documents are required to be available for public scrutiny.”

Under Wirral Council’s internal rules this committee is not however administered by Legal and Member Services, but instead serviced by officers from the Children and Young People’s Department. It doesn’t for example appear in the list of public meetings on Wirral Council’s website.

So this is what happened when I tried to request the minutes of one meeting of SACRE.

29th March 2013 FOI request made using excellent whatdotheyknow website.
29th April 2013 Wirral Council exceeds 20 day limit for responding to request and is sent a reminder
30th April 2013 Request refused on s. 12(1) cost grounds (require >18.5 hours of work) due to:

“a great deal of Personal Data and Sensitive Data, which would have to be reviewed and redacted were applicable.”

30th April 2013 Internal review of decision of 30th April 2013 requested. It is pointed out to Wirral Council that redacting documents does not count towards the 18.5 hour limit.
30th July 2013 Internal review decision also refuses request, not on s.12(1) cost grounds but on s.14 (vexatious or repeated request) grounds.
14th August 2013 Internal review decision appealed to Information Commissioners Office
8th September 2014 ICO issue decision notice FS50509081

Decision notice states (in relation to this part of the FOI request) Wirral Council breached s.10 and incorrectly applied s.12 and s.16:
s.10 (time for compliance with request) due to failure to respond to FOI request within 20 working days
s.12 (exemption where cost of compliance exceeds appropriate limit) (failed to provide evidence)
s.16 (duty to provide advice and assistance) (breached requirement)

ICO require Wirral Council to take the following steps within 35 calendar days (deadline 13th October 2014) or alternatively appeal the decision notice within 28 days of the 8th September 2014:

Issue a response to the complainant’s request that does not rely upon section 12(1) of the FOIA or regulation 12(4)(b) of the EIR.
Provide advice and assistance to the complainant about which of the requested information is held by the council, and therefore falls under the terms of the FOIA or EIR.

14th October 2014 (36th calendar day after decision notice) no response received from Wirral Council (after which time it is considered contempt of court) so I tell ICO.
4th November 2014 Wirral Council supply the minutes of the SACRE meeting held on 7th February 2013 but remove all names (apart from councillors) on the basis of s.40 (personal information) of the Freedom of Information Act 2000.

So the minutes supplied (this is an extract of the first three agenda items) look like this (I’ve added annotations in italics with an asterisk):

MINUTES OF THE MEETING OF THE STANDING ADVISORY COUNCIL FOR RELIGIOUS EDUCATION HELD ON 7 FEBRUARY 2013

Present:
Names Redacted

* Groups A to D are as follows (who makes up SACRE is determined by s.390 of the Education Act 1996:
Group A “a group of persons to represent such Christian denominations and other religions and denominations of such religions as, in the opinion of the authority, will appropriately reflect the principal religious traditions in the area;”
Group B “except in the case of an area in Wales, a group of persons to represent the Church of England;”
Group C “a group of persons to represent such associations representing teachers as, in the opinion of the authority, ought to be represented, having regard to the circumstances of the area;”
Group D “a group of persons to represent the authority.” (see below)

Councillor W Clements
Group D

Councillor W Smith
Group D

Councillor P Kearney
Group D

Councillor B Mooney
Group D

In Attendance: Names redacted

Name redacted in the Chair

1.
WELCOME

Name redacted formally welcomed everyone to the meeting and introduced the first item on the agenda – the Election of a Wirral SACRE Chair for the year 2013/14. .

2.
ELECTION OF POSTS

Name redacted was proposed by Councillor Clements and seconded by Name redacted. By a unanimous show of hands Name redacted was duly elected to the post of Vice Chair.

Name redacted nominated Name redacted for the post of Vice Chair and this was seconded by Name redacted. By a unanimous show of hands Name redacted was duly elected to the post of Vice Chair.

3.
SACRE Business Matters

Apologies for absence were received from Names redacted, Councillor T Smith, Name redacted.

So advice anyone, should I request an internal review of the decision to redact the names? As these are public meetings, how are the public or press supposed to find out when they meet? If I requested further SACRE meeting minutes do you think they’d take 20 months (rather than the 20 days required under FOI) to supply them?

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