Why did Wirral Council include Ian Coleman as a whistleblowing contact in the Passenger Transport Contract?
Why did Wirral Council include Ian Coleman as a whistleblowing contact in the Passenger Transport Contract?
Here is my first question to Wirral Council’s auditor (Grant Thornton) about the Passenger Transport Contract.
Wirral Council has a contract with Eye Cab Limited called the "Passenger Transport Contract". This contract started on the 1st September 2014 and runs to the 31st August 2015 and is for the provision of taxi services.
I requested to inspect a copy of the contract (see Audit Commission Act s.15(1)(a)) which was arranged for the 4th September 2015. As a local government elector for the Wirral area, I can question the auditor about the 2014/15 accounts from 9.30am on the 18th August 2015 until the accounts are closed (see Audit Commission Act 1998 s.15(2)).
Page 36 of the contract has a section titled "Section 5 CONFIDENTIAL COMPLAINTS PROCEDURE (Whistle-blowing) A Guide for Suppliers and Contractors (see attached page 36).
Passenger Transport Contract Wirral Council page 36 of 40
At the bottom of this page of the contract it details two people that a complaint under the whistleblowing procedure can be made to.
The second of these individuals is:
"Ian Coleman, Director of Finance, Wirral Borough Council, Finance Department, Treasury Building, Cleveland Street, Birkenhead, Merseyside, CH41 6BU"
Wirral Council’s Employment and Appointments Committee agreed early voluntary retirement for Ian Coleman on the 3rd October 2012 (see attached minutes).
Therefore as Ian Coleman was not an employee of Wirral Council at the time the Passenger Transport Contract was put out to tender (or when the contract was agreed) why was he included as a whistleblowing contact in the contract?
Yours sincerely,
John Brace
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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.
Wirral Council U-turns on refusal of FOI request for values and culture presentation
Wirral Council U-turns on refusal of FOI request for values and culture presentation
Over a year ago (3rd July 2014) I made a Freedom of Information Act request to Wirral Council using the excellent whatdotheyknow.com website for an email (and an attached Powerpoint presentation to the email) sent by Surjit Tour on Thursday 24th April 2014 with the subject of L&MS – Values and Culture Presentation. L&MS stands for Legal and Member Services (Member meaning councillor in local government jargon).
On the last day of July (31st July 2014) I got a reply. Mr Tour had considered the FOI request and refused it. His response referred to section 36 (prejudice to effective conduct of public affairs) of the Freedom of Information 2000. For those familiar with this part of the Freedom of Information Act this is one of the parts that is subject to a public interest test.
Surjit Tour (left) at a recent meeting of Wirral Council’s Standards and Constitutional Oversight Committee
Mr. Tour (who made the first decision on this request) claimed in refusing the request that releasing his email (and attachment) would:
(b) inhibit the free and frank provision of advice or exchange of views;
or (c) otherwise prejudice the effective conduct of public affairs.
Further detail was given about why this request was refused “The information requested was used as an integral part of a management meeting where a corporative initiative was openly discussed and debated” and “The Council has held/is holding a series of management meetings where there must be a safe space to share corporate initiatives and openly discuss and debate any issues arising in these meetings. It is also my reasonable opinion that if the requested information were to be disclosed, it would likely have a “chilling effect” that would inhibit the free and frank discussion and debate on matters of importance to the Council and its workforce. Any disclosure is likely to undermine the ability of officers to express themselves in a frank and open manner.”
It was further claimed that “disclosure would restrict the free and frank exchanges of views”, “disclosure would stifle debate at such meetings and could lead to poorer decision making” and “disclosure would have a potential detrimental effect on future management meetings” although “transparency in disclosure of the content of the management meeting” was given as a factor in favour of disclosure. Also stated in the response was “I consider it is crucial that officers are able to engage in discussion and exchange views in an open and frank manner.”
At the time I got this response I didn’t request an internal review. I’d requested internal reviews before when Mr. Tour had claimed section 36 applied to the information requested. You can see an example of a request here for minutes of the Standards Working Group meeting of the 17th December 2013 where Mr. Tour refuses it based on section 36 and at internal review the former Chief Executive of Wirral Council Graham Burgess agrees with Mr. Tour.
At the time I probably thought it pointless to request an internal review as I thought the Chief Executive would just agree with Mr. Tour.
The new Chief Executive Eric Robinson on the 21st April 2015 agreed with Mr. Tour.
His responses were as follows, first to my point about whether it was a conflict of interest for Mr. Tour to decide on whether to release his own email:
“I do not agree that Mr. Tour would have been conflicted when he gave careful consideration to and applied the Section 36 exemption.”
In response to the point that the email and attachment was sent before the meeting, didn’t detail what was debated at the meeting therefore how could it “stifle debate at such meetings”?
“The contents of the attachments still remain current and topical to the Council. Officers who took part in this management meeting and those who will be present at further meetings, must be afforded a safe space in which they can openly discuss and debate these corporate initiatives.”
Finally responding to my point “well surely if Wirral Council is “open and transparent” then being “open and transparent” here about a very important aspect of the organisation (values and culture) would demonstrate to the public that Wirral Council has changed?” he replied:
“The Council is committed to openness and transparency and communicates this to the public in many ways. As well as the consultation exercises the Council has been involved in with members of the public; we also publish information and communications via our web pages.”
He included various links to the Council’s website to the Corporate Plan, a page on the Transparency Code and a page on the Freedom of Information Act 2000 & the Data Protection 1998.
Finally he stated:
“To summarise, as the Reviewing Officer, I have carefully considered the original response provided by the Monitoring Officer and my reasonable opinion is that I fully concur with his initial response. I am of the opinion that the exemption contained within Section 36 of The Freedom of Information Act 2000 has been correctly and appropriately applied. As the Reviewing Officer, I believe I have considered all relevant and material factors and issues.”
and
“After taking all factors into account, it is my reasonable and considered opinion that the reasons and rationale provided by Mr. Tour are valid and robust in nature. I do not consider I need to add anything more in this regard and I am satisfied that the public interest test in maintaining the exemption outweighs the public interest for disclosure.”
So on the 19th May 2015 I appealed this decision to the Information Commissioner’s Office. On the 11th August 2015 Wirral Council supplied the attached Powerpoint presentation but stated that the email had since been deleted.
Shortly after I received an email from the Information Commissioner’s Office stating that the case was now closed, although I have emailed them this morning asking them to clear up that the Chief Executive at internal review stated “The contents of the attachments still remain current and topical to the Council.” which would suggest more than one attachment to the email, yet only one attachment was supplied.
Ironically (considering what I’ve just written above) slide 10 on integrity states
“We communicate & are open and honest in what we do.”
However that point aside, the slides are about “organisational vision”, “values” and “culture”.
Slide 7 states that Wirral Council’s vision is:
“Wirral should be a place where the vulnerable are safe and protected, where employers want to invest and local businesses thrive and an excellent quality of life is within the reach of everyone who lives here.”
Slide 9 introduces Wirral Council’s values which are:
“integrity, efficiency, confidence and ambition”.
Slides 10 to 13 define each of these values.
“Integrity
We treat everyone with respect
We are accountable and take responsibility for our actions & decisions
We communicate & are open and honest in what we do
Efficiency
We seek innovative & creative solutions
We work effectively together to make the most of our resources
We proactively look for ways to improve
Confidence
We fully use the skills, talents & assets of our partners, communities and organisation
We take decisions and deliver
We learn from & share knowledge and expertise with others
Ambition
We deliver with energy and pace
We are risk aware, not risk averse
We have pride in our place and our people striving to be the best we can for Wirral”
The last slide refers to “support & change agents to be allocated”. If anyone would like to explain to me what a “support & change agent” is please leave a comment!
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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:
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.
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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Personally I thought nothing further would happen on this story until the September meeting of Wirral Council’s Highways and Traffic Representation Panel. However, since writing that story Wirral Council have issued a press release that’s titled either “Resort parking plans quashed” (when it’s linked to from their homepage) or “Wirral Council leader says no to plans to charge for parking in New Brighton” from the press release.
There is a very interesting quote in the press release from Councillor Phil Davies that states “Cllr Pat Hackett, our Cabinet Member for the Economy, has been meeting with traders and business leaders in New Brighton to discuss the proposals, and they made a powerful case for not proceeding. When we looked at the plan and the possible impact on parking and tourism across the whole of the resort, I made the decision to stop the proposal”.
On the 22nd December 2014, I wrote on this blog When Wirral Council introduces car parking charges at Fort Perch Rock, will 3 hours free parking end for a further 423 New Brighton spaces? (later updating it this year by including the public notice). I published the three pages of Wirral Council’s lease for the Marine Point development at New Brighton that detailed if Wirral Council introduced car parking charges at Fort Perch Rock car park, charges could be introduced at the supermarket car park and the “health and fitness” car park (originally Bubbles was going to be a gym but they couldn’t find a company that wanted to run it as a gym). This was plenty of time before the 2015/16 budget for Wirral Council was agreed on the 24th February 2015 for councillors to change their mind.
An article by Liam Murphy in the Liverpool Echo states “But Promenade Estates, who manage part of the successfully regenerated resort, say if the charges are imposed they would have little choice but to follow suit. This would mean parking charges on the car parks serving Morrisons, The Light Cinema, Bubbles play centre and other businesses.”
So it wasn’t just a “possible impact” but a “probable impact”. On the 9th December 2014, Councillor Phil Davies proposed and voted for this resolution at a Cabinet meeting, that was seconded and agreed by all councillors including Cllr Pat Hackett:
“We also feel that it is appropriate to introduce a modest charge for parking at Fort Perch Rock in New Brighton up to 6 p.m.”
“67.We also feel it is appropriate that a modest charge for parking up to 6 pm. at Fort Perch Rock in New Brighton should be introduced.”
So Councillor Phil Davies U-turned on his own policy! However it begs the following question, if the reason for stopping the proposal is the impact on parking across the resort (as stated in the quote from Cllr Phil Davies), then why wasn’t he told about the impact on parking elsewhere in Marine Point by his own officers before Cabinet made the decision? As you can see below from the first page of the lease that has the clauses about parking, Wirral Council is the landlord for the Marine Point development.
New Brighton Marine Point lease Wirral Council Neptune Wirral Ltd cover page
“I confirm that the Authority no longer retains DHA Communications and the use of their services ceased as of March 31st 2015. The Authority recognises that some parts of its relationship with DHA Communications was not fully formalised in some time periods. The Authority has reviewed its practices in relation to this type of contract and has now put in additional measures and monitoring in place to ensure that an accurate audit trail is retained.”
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