What was the answer to my question to Cllr Steve Foulkes about openness at Merseytravel and the Liverpool City Region Combined Authority?
Yesterday I asked a question to Cllr Foulkes (pictured above), who is the Lead Member for Finance and Organisational Development on the Liverpool City Region Combined Authority’s Transport Committee. You can also watch video of the question asked and Cllr Foulkes’ answer below.
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Transport Committee (Liverpool City Region Combined Authority) 9th August 2018 Public Question Time – Question to Cllr Steve Foulkes
Q. On the last day of the public inspection period for the 2017/18 accounts, I emailed a request to inspect and receive copies of 141 invoices relating to either Merseytravel or the LCRCA for the 17/18 financial year. Whereas I realise that copies of 8 of the invoices were supplied in response to an earlier FOI request, that still leaves copies of 133 invoices that I have not received. I made a request for copies of a similar quantity of invoices to another public body this year and the information requested was supplied within 5 calendar days of the request being made. Two weeks ago I received a reply from a Merseytravel employee implying he was awaiting legal advice but have not heard anything since. I attach to this question a two page letter from the Director of the National Audit Office to Lambeth Council which states “it may not be appropriate to take the limitations in FOI legislation and apply them to public inspection” (the Senior Information Management Officer had previously stated his intention to treat the request as a FOI request).
Will Merseytravel and the LCRCA supply me with copies of the 133 invoices requested on or before the date of this meeting which will be 4 weeks after the request was originally made?
A. (Cllr Steve Foulkes) Well, clearly we haven’t been able to comply with the last part because I still assume you haven’t received the invoices?
OK, so my, my errm is thank you John for your ongoing and due diligence and examination of our systems over a long period of time. Given the detailed question I’m going to take Liam’s lead and make sure we get a full written response to you within the timescale.
A copy of the two-page letter referred to in the question from the National Audit Office to Lambeth Council is below.
Below is a response received by email today from Louise Outram who works for Merseytravel.
Dear Mr Brace
I have considered the points you raised in your email to Mr Henderson of 20 July, and have addressed them below.
It is important at the outset that we consider the circumstances surrounding this correspondence
1. The statutory period for inspection of accounts commenced on 1 June and concluded at 4 PM on Thursday 12 July. A period of six weeks encompassing 30 working days.
2. Your request to access 132 invoices and any relevant supporting information was received at 11.43 on Thursday 12 July. A significant request for information.
3. You have made requests in previous years during this “window of inspection”. The regime has not altered so I draw the conclusion that you are aware of the provisions. On this basis you will also be aware of the significant amount of work undertaken by officers of the public body to gather the invoices, consult with parties on issues of commercial confidentiality and personal data and to make any necessary redactions. In previous years you have complained about the redactions to the documents.
4. Merseytravel and the Combined Authority have met their obligations to make documents available for the exercise of public rights, this is been demonstrated for many years of responding to your requests during the period of inspection. In addition they have provided documentation in alternate formats.
5. The guidance is clear though that the onus is on the Requestor to act and behave reasonably.
I turn now to consider specific points made in your email, Regulation 14 addresses the period for the exercise of public rights. The National Audit Office gives specific guidance to Applicants and repeatedly emphasises that it is the Applicants responsibility to be reasonable. This is because this is a right exercisable by the Applicant and one which the Public Body (Relevant Authority) needs to be responsive to, so the onus is on the Applicant to be reasonable to the Public Body. It recognises that these are onerous responsibilities on a public body which is already significantly stretched both in financial and resource terms.
Paragraph (3) states
During the period for the exercise of public rights a Relevant Authority must make the documents referred to in section 26(1) of the Act available for inspection on reasonable notice at all reasonable times.
This does not mean however that a public body must have all of its invoices printed out redacted reviewed and ready for inspection “just in case” an application is received. Clearly such a requirement would not be reasonable given the financial and resource position of public bodies.
We agree that the period for the exercise of public rights ended at 4pm on Thursday 12 July. This was in fact day 30 of the requisite 30 working day “window for inspection”. It must be noted that this is in effect a six-week period.
As stated in the explanatory note to The Accounts and Audit Regulations 2015:
Section 3 of the Local Audit and Accountability Act 2014 (“the Act”) requires a relevant authority (as defined in Schedule 2 to the Act), other than a health service body, to keep adequate accounting records and to prepare a statement of accounts. Section 25 requires a relevant authority to make various documents available for inspection to local electors. Sections 26 and 27 grant various rights of inspection, objection and to question the local auditor, to local electors and other interested persons.
These Regulations set out the detailed requirements of a Relevant Authority in relation to the duties and rights set out above. They amplify the provisions of the Act.
The 30 working day period for the exercise of public rights contained in the Regulations applies to all rights contained in the entirety of Section 26 of the Act. The Act itself states (emphasis my own):
(1) At each audit of accounts under this Act, other than an audit of accounts of a health service body, any persons interested may—
(a) inspect the accounting records for the financial year to which the audit relates and all books, deeds, contracts, bills, vouchers, receipts and other documents relating to those records, and
(b) make copies of all or any part of those records or documents.
It follows therefore that the right to copies under these provisions clearly only applies to those records that have been inspected. The Regulations allow the Requestor to make copies themselves and reserves a right for the public body to charge for any copies it is requested to make for the Requestor. (This latter is entirely in the discretion of the public body as it is not mandated in the Regulations).
Part (b) is reliant on part (a), that is, that the provisions are cumulative. Due to your late request (contrary to the good practice guidance in this area), it was not possible for the inspection to take place due to the late submission of the request, the volume of documents in your request and that you have acknowledged that you were unavailable to inspect as you were in a public meeting on the afternoon of the 12 July. The Regulations do not require relevant authorities to extend the period designated for inspection.
You have in your letter agreed that you no longer have the right of inspection, it follows therefore that you no longer have a right to make copies (or to have copies made for you) as these rights both arise from the same piece of legislation…
This legislation can only be utilised within a short timeframe (30 working days) each year.
The Freedom of Information Act allows individuals at any point in the year to request information from public bodies. I will not dwell on this point as I am aware you are au fait with this legislation.
You made reference to a letter from the National Audit Office that states that requests during the audit should not be considered as FOI requests.
For clarity, at no time was your request treated as an FOI request. The response you received clearly stated that ‘you are, of course, welcome to request the invoices under the Freedom of Information Act’.
In other words, if you would still like to receive any of the information you have requested you would be able to make a request for the information under the FOI Act.
I do not believe that on Mr Henderson’s part there was any confusion between different access schemes in the handling of your request or in his subsequent response to you. He was merely attempting to be helpful to you.
For the avoidance of any doubt Mr Henderson is fully au fait with both sets of legal provisions and was not required to seek additional guidance.
So in summary
- the period of inspection has closed;
- copies will not be provided under these Regulations for the reasons set out above;
- you have (as you have always had) the right to request information under FOI; and
- if you choose to exercise your rights under FOI you should do so by contacting Mr Henderson.
Head of Legal, Democratic Services & Procurement | Merseytravel | Mann Island, PO Box 1976, Liverpool, L69 3HN
Below is my reply.
Dear Louise Outram, Andrew Henderson and Cllr Foulkes,
I write below a brief reply to the points in your email.
I also attach a copy of a letter from Andrew Henderson dated 18th August 2017 which appears to contradict your point that rights to inspection and copying rights can only be exercised together.
Just for clarity, the 30 working day period in 2017 started on the 1st July 2017 and ended on the 11th August 2017.
The specifics of the request that year was that it was made on the 17th July 2017 (nearly a month before the inspection period ended) although a letter informing of my intention to inspect was dated the 14th July 2017.
Despite this, the Manufacture and Supply Agreement between Merseytravel and Stadler was made available as a copy only and not available for inspection during the 30 day period.
18th August 2017 (when was a copy of the contract was provided) was around a week after the 30 day inspection period had ended.
For clarity in reference to paragraph 2 of your response, the request was not for 132 invoices, but for 141. However I have agreed that 8 were previously supplied in response to a FOI request, making this a request for 133 invoices, not 132.
For clarity also, you state the request was made for “all relevant supporting information” regarding these invoices, but I expressed the request in these terms (I quote from the original email):
“Please find attached a spreadsheet of payments made during the 17/18 FY by Merseytravel/LCRCA. I would like to inspect and receive copies of the associated invoices for those payments.
By invoice I mean all pages of a multi-page invoice including attached schedules of costs or breakdown of costs where applicable. Where there is not an accompanying invoice, I’d like to see some record of what the payment is for.”
Therefore the request is just for the invoices (for some payments in previous years invoices have not been available so a page titled “Proforma Invoice” was supplied instead).
In fact the number of invoices requested by myself this year (141 this year versus 542 last year) is around a quarter of what was requested the previous year (curiously you state the size of this request is “significant” when no reference was made to the size of the request last year).
You state “The 30 working day period for the exercise of public rights contained in the Regulations applies to all rights contained in the entirety of Section 26”, however this is clearly not the case as reg. 14(1) of the Accounts and Audit Regulations 2015 refers to “rights of inspection, objection and questioning of the local auditor conferred by sections 26 and 27 of the Act”.
A copying right is not an inspection right.
You refer to the Explanatory Note to the Accounts and Audit Regulations 2015 (but fail to state the Explanatory Note states its not part of the regulations) and it doesn’t explicitly mention the right to copy.
However going back to your quote of s.26 of the Local Audit and Accountability Act 2014.
The wording used in s.26 before parts (a) and (b) is “may” not “shall”.
Therefore a person may just exercise a right to inspect (but not request or make any copies), or choose just to receive copies or inspect and make or request copies of the documents inspected.
I’m reading “may” as meaning optional (that is a right of inspection and a right of copying can be exercised independently of each other), whereas you are reading “may” as being mandatory. Clearly it needs to be read in context (your interpretation is illogical as it would also mean a person could only inspect documents if they also at the same time requested or made copies of them too).
If a right to copy can only be exercised if the documents are inspected, that argument would also mean that inspection could only happen if copies of the documents were requested before or at the time of the inspection too.
In relation to charging, there is no specific power granted to Merseytravel and the LCRCA in the legislation for a public body to make a charge for copies.
I hope that sets out my position.
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