What was Liverpool City Council’s incredible 6 page response to the FOI consultation?

What was Liverpool City Council’s incredible 6 page response to the FOI consultation?                                                                    You can tell a lot about the culture at a public body by its response and reaction to issues such as FOI and filming of public meetings. I had better declare an interest as a FOI request I made to Liverpool … Continue reading “What was Liverpool City Council’s incredible 6 page response to the FOI consultation?”

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What was Liverpool City Council’s incredible 6 page response to the FOI consultation?


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ICO Information Commissioner’s Office logo

You can tell a lot about the culture at a public body by its response and reaction to issues such as FOI and filming of public meetings.

I had better declare an interest as a FOI request I made to Liverpool City Council is currently being considered by ICO for a decision notice.

Considering there were over 30,000 responses to the recent consultation on changes to FOI legislation it’s something that attracts a lot of strong feeling.

I’m going to start first with Liverpool City Council’s response to the consultation. Those who know Liverpool City Council may say that their response sums up their attitude. From the tone of their response they don’t like openness and transparency and recommend that the goalposts are moved to prevent having to respond to so many FOI requests (whilst displaying a lack of awareness as to why they receive so many FOI requests in the first place). I think that responses like this are often like a window on an organisation’s soul.

It gives some telling insights on the internal review process of FOI requests at Liverpool City Council with comment such as “that an Internal Review is unlikely to reach a different conclusion”, therefore they propose abolishing internal reviews.

They also want advance notice of decision notices so that they can for want of a better word nobble ICO to change what they don’t like as in LCC’s world decision notices are described as “inappropriate”.

Liverpool City Council

Rt. Hon. Lord Burns
Chair – Commission on Freedom of Information Cabinet Office
9th Floor
102 Petty France London

Evidence Submission on review of Freedom of Information Legislation

I write further to my letter of 12 October and with regard to the Call for Evidence document issued by the Commission on Freedom of Information on 9 October, enclosing for the attention of the Commission the formal evidence submission of Liverpool City Council.

I would appreciate it if you would acknowledge receipt of this submission and would again take the opportunity to affirm our willingness to continue to engage constructively with the Commission during the course of its review.

I look forward to hearing from you in due course. Yours

Ged Fitzgerald
Chief Executive


These matters all have a starting point and undergo a number of iterations before coming forward as formal options. It is essential that this process should not be undermined by requests being made for copies of any emails or communications which formed part of the iterative process of decision making. Ultimately the governance framework ensures any decisions taken are informed and legal. This is a cornerstone of any effective public authority – from Central Government to local authorities – and it is essential that this ability to develop policy, proposals and explore options is maintained otherwise it would impair the quality and ability of public authorities to make informed decisions.

The application of this Exemption requires a person qualified under the Act to give their reasonable opinion, and guidance has been issued by the ICO as to the acceptable format of this. It is clear from the consultation document as well as practical experience that there is a need for such Exemption otherwise the quality of both record-keeping and decision-making by public authorities would be impaired.

Current guidance issued by the ICO (“the evidence required by the ICO would be to assess the quality of the Qualified Persons reasoning process and assist in their determination as to whether a substantive opinion could be considered reasonable…”) would appear to indicate that once the Qualified Person has reached and recorded their reasonable opinion then the ICO may only require the production of such a record but may not compel the disclosure of the information to which the Reasonable Opinion relates.

The key issue is that the Qualified Person’s opinion and record of reasoning which includes the public interest test is recorded. The ICO have produced a template for this purpose. The Information Commissioners Guidance also indicates that the potential prejudice claimed arising from any such disclosures must be at least or exceed a 50% chance of occurring.

How long after should that remain sensitive?
An additional key aspect of the decision-making process of public authorities is the duration of how long information which falls under the Exemption may be withheld from disclosure on the basis of the opinion of the Qualified Person. Information relating to ‘internal deliberations’ should remain capable of being withheld from disclosure for as long as the public authority considers necessary. Whether the information held continued to be subject to non-disclosure would of necessity be a matter for the relevant public authority to determine. It would be inappropriate to set any form of definitive time limit after which information could be deemed to no longer be sensitive if published. The sensitivity of any specific piece of information directly relates to the subject of the information itself as opposed to the date when this was created. There should be no limitation as to the period which a Qualified Person may determine that such information should not be disclosed if the subject of a formal request.

The City Council would also consider that opinions issued by Qualified Persons should not be subject to overturn if reached on a reasonable basis and in a manner consistent with ICO guidance and using their standard template. An alternative and more appropriate mechanism would be for any such opinions to be published on the website of the respective public authority and referenced accordingly within the publication scheme of that public authority. This would satisfy the accessibility and transparency requirements for such declarations and for the purposes of Liverpool City Council it is the Monitoring Officer.

An anomaly which the City Council would bring to the attention of the Commission is that of how the Environmental Information Regulations 2004 (EIR) allow an exception (as opposed to the term ‘exemption as used under FOIA) for internal communications under Regulation 12(4) (d) and yet no parallel exemption is extant under FOIA.

Recommendations from Liverpool City Council –

(i) Qualified Person Opinion & Publication – that the Section 36 Exemption be revised to state that the reasonable opinion of the Qualified Person, once drafted and recorded on the relevant ICO template and published to the website of the public authority and referenced within the Publication Scheme, that this may not then be the subject of further review by the ICO.

Questions 2 – this question relates purely to matters within the legislation which are applicable only to Central Government and as such no response is proposed to be made.

Questions 3 & 4 see response to question 6 below.

Question 5 – What is the appropriate enforcement and appeal system for Freedom of Information Requests? What is the appropriate enforcement and appeal system for Freedom of Information Requests?

Appeals & Internal Review
Current legislation includes provision whereby public authorities must provide an internal review process whereby requestors may ask the Public Authority to review the original decision of the Public Authority on their specific request.

The burden placed on public authorities in preparing responses to initial requests is further exacerbated by the requirement to undertake an Internal Review to assess the validity of its response, when in the first instance such responses are issued following careful consideration of information held in the context of FOIA legislation. In terms of the figures set out in this response below, in 2014 of 2,139 requests a total of 49 requestors sought an Internal Review. Of these, only 5 appeals were the subject of Decision Notices from the ICO with only 1 of which requiring any form of action from the City Council – approximately 0.00047% of all requests processed by the City Council.

It is our position that our approach to an FOI request is robust and thorough from the outset, and that the legislation is applied by trained experienced staff so that an Internal Review is unlikely to reach a different conclusion as evidenced by these statistics.

Essentially public authorities are being asked to repeat an assessment when undertaking an Internal Review and to undertake work twice when conducting reviews, which is inefficient and places an excessive burden on local authorities.

ICO Review
We would draw attention to the process which the ICO then undertakes when seeking information from public authorities in such instances when informing their own decision-making. Frequently the level of information sought by the ICO goes beyond that of verifying the information held or application of the exemption concerned and indeed the subject matter of the original request. This process can be both resource intensive and give additional uncertainty in those circumstances where the ICO seeks information or reasoning beyond that which could reasonably be expected on a specific case. We would seek greater clarity as to the remit of the ICO in such circumstances and of the extent to which they may undertake a review.

Decision Notices
Additionally, in concluding reviews, the ICO will then issue a Notice (Decision or Enforcement Notice) setting out their decision on the request concerned. We would suggest that this process be reviewed and aligned more closely to that used by the Local Government Ombudsman whereby any Notices proposed to be issued should firstly be sent to the public authority concerned for response. This would provide a fair and reasonable opportunity for public authorities and the ICO to address any clear factual inaccuracies, assist in maximising the value of any recommendations contained within the final Notice issued and possibly prevent a costly First Tier Tribunal being convened. The timescale for responses by the Public Authority to any Decision Notice to be 10 working days. The inclusion of unsubstantiated and factually inaccurate statements within ICO Notices, issued without opportunity to the public authority of correction or rebuttal, is inappropriate and requires addressing.

Applications to First Tier Tribunal (Information Rights)
The final opportunity for requestors – if unsatisfied with the outcome of a review undertaken by the ICO – is to submit an Appeal to the First Tier Tribunal. There is no threshold to be met before such applications are made and, in seeking to respond, public authorities are required to expend significant resources in responding. Only on the most fundamental principles of information law should this facility be available or otherwise a cost mechanism for such applications should be introduced in the same manner adopted for applications for Judicial Review.

Recommendations from Liverpool City Council –

(ii) Internal Review – that this mechanism be withdrawn on the basis that this offers no practical benefit for requestors and merely requires the duplication of effort by public authorities.

(iii) ICO drafting of Decision Notices – a requirement be introduced whereby the ICO in drafting a Decision Notice and prior to publication, be required to formally consult the subject public authority and allowing not less than ten working days for issues to be raised by the public authority. Such issues if not accepted by the ICO must be recorded as having been raised by the public authority.

(iv) Applications to First Tier Tribunal (Information Rights) – a threshold or application fee be introduced for applications to the First Tier Tribunal, in a similar manner to that used for applications for Judicial Review.

Question 6 – Burden imposed under the Act and whether justified by the public interest in the public’s right to know

Public authorities are subject to detailed requirements set out in the Local Government Acts to date requiring the publication of information and prescribing how this is to be made available to the public. In addition, the introduction of the Local Government Transparency Code as statutory guidance introduced additional publication requirements on public authorities regarding openness and transparency in local government, which represents additional obligations beyond that already seen. Combined these elements demonstrate the breadth of requirements already inherent on public authorities to make information publicly available.

The Freedom of Information Act (FOIA) (and parallel Environmental Information Regulations 2004) place additional substantial burdens on public authorities. In terms of the resources public authorities are required to commit to dealing with Freedom of Information requests, there are a number of key points to be made.

Burden on Public Authorities
Under Section 16 FOIA and Section 45 Code of Practice, all public authorities are already under an obligation to give advice and assistance to requestors both in terms of framing requests as well as giving advice to bring such requests within the cost ceiling as laid down within the legislation. The current ceiling set out in the legislation is 18 hours, which is high in terms of resource and cost implications.

Firstly, by way of example of the experience of Liverpool City Council, the number of requests received in 2010 (1,217 requests) to the number of requests received in 2014 (2,139) shows an increase of 922 or in percentages of approximately 76%, and an increase in costs of approximately £150K per annum. This increase can be set against a context whereby the City Council has seen the funding it receives from Central Government reduced by 58% during the same period, placing substantial pressures on the viability of the delivery of essential services for its residents.

In real terms and using the figure for the average costs incurred in responding to an FOI request as set out in the Consultation Document issued by the Independent Commission, of £164 per request, the cost of responding to FOI requests based solely on this is £350K per annum to Liverpool City Council alone.

This does not take into account more complex, technical and detailed requests which have to be dealt with and which cost substantially more. The Council’s response rate within 20 working days was 88% in 2014.

The City Council would draw to the Commission’s attention the fact that that the average cost per request it has included within its consultation document is based on calculations undertaken in 2008.

It is highly probable that a similar calculation conducted today would reach a substantially higher ‘cost per request’ figure.

Table 1. Number of request received by Liverpool City Council in 2010 and 2014 and associated costs



Month received


Month received



£164 per request


£164 per request


Vexatious Requests
The City Council welcomes the revised ICO guidance. However there needs to be additional clear guidance within that around the real public interest rather than the private interests of unelected individuals or concerted campaigns which are a drain on public resources. This type of requestor continues to rise in terms of complexity and their impact on available resources.

Based on the experience of Liverpool City Council and using the average cost idicated above, a small number of “frequent requesters” are costing a disproportionate amount of time and resources responding to their requests, of up to £7,000 per individual. This needs to be reflected and addressed within a substantive manner within any Guidance issued by the ICO.

There are also resource implications even associated with dealing with frivolous requests such as “what is the total number of red pens bought by the Council in the past year”. Even though this is classed as vexatious a formal response to that effect is still required to be issued, effectively occupying valuable resources.

A further burden associated with FOIA is that of the limited charging mechanisms available under the legislation, specifically, under FOIA public authorities may only charge where the time to deal with the request exceeds 18 hours in total.

The current 18 hours threshold (Section 12) is itself a significant demand on Council resources in that a request can take up to anything just below that timescale and no charge can be made. This in effect is up to and two and half days work . This threshold should be reviewed in the light of some of the research undertaken to date i.e. the average time taken to respond to an FOI request by public authorities of 6 hours and 10 minutes with a lower threshold being established.

In terms of the current charging regime associated with Freedom of Information legislation, again the experience of Liverpool City Council in responding to requests is that the art of redacting specific documents can be very time consuming and should be included within the costs permitted when determining whether complying with a request may exceed 18 hours.

In terms of charging the approach set out in the Environmental Impact Regulations 2004 (EIR) assumes information will be available to inspect ‘for free’ but if information is asked to be supplied in a different format a ‘reasonable’ charge may be made for that supply. Specifically, this charge may extend to the time spent by Officers in responding to the EIR request and supplying the information. This differs to the approach adopted in FOIA and should be made consistent.

The City Council would also draw attention to the difficulties caused by the two disclosure regimes operable in the form of the Freedom of Information Act (FOI) and the Environmental Information Regulations 2004 (EIR). There is considerable overlap between requests which may be received under FOI but which, by virtue of the wide definition under EIR should be considered under that regime. The City Council would seek to encourage greater consistency between both regimes, through either a single consolidating Act or through amendments to both existing regimes to provide for a single common charging mechanism and consistency of the requirements for exemptions and exceptions.

Technical Issues

An additional technical issue which we would seek to highlight is that of an Exemption (Section 21 absolute, class based) which is applied in those instances where information is either already in the public domain or accessible by alternative means. The legislation still requires this to be issued with a supporting Section 17 Refusal Notice. The City Council considers that the application of this Exemption should not require the issue of a Refusal Notice as no information is being withheld given it is either already in the public domain or accessible by other means to which the requestor is then directed. The use of a Refusal Notice in such instances can give rise to an Internal Review which of its nature would only generate additional unnecessary burdens for public authorities.

Recommendations from Liverpool City Council –

(v) 18 Hour Rule – that a review of the 18 hour limit beyond which charging or refusal is permitted be undertaken and consideration given to reducing this threshold to either 6 or 7 hours.

(vi) Charging/Reasonable recovery of costs – public authorities be given greater opportunity to levy charges for compliance with requests to ensure the recovery of reasonable costs associated with fulfilling requests which would include the time taken to redact any documents. To align the charging policies for EIR and FOI.

(vii) Vexatious Requests –that Guidance issued by the ICO in relation to dealing with Vexatious requests be further reviewed and strengthened in respect of frequent and persistent requesters

(viii) FOIA and EIR Alignment of Regimes – that a concurrent review be undertaken of the FOIA and EIR to ensure greater alignment of both pieces of legislation or one consolidating Act.

(ix) Refusal Notices – the requirements for issue of Refusal Notices be reviewed to remove requirements to issue these in such instances where a Section 21 (information in public domain or reasonably accessible by other means) Exemption is applicable.

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Author: John Brace

New media journalist from Birkenhead, England who writes about Wirral Council. Published and promoted by John Brace, 134 Boundary Road, Bidston, CH43 7PH. Printed by UK Webhosting Ltd t/a Tsohost, 113-114 Buckingham Avenue, Slough, Berkshire, England, SL1 4PF.