Irregularities regarding IW council Cabinet meeting 13th April 2010

Mr. Figg made this Freedom of Information request to Isle of Wight Council

The request was refused by Isle of Wight Council.

From: Mr. Figg

28 June 2010

Dear Isle of Wight Council,

Prior to the meeting of the IW council Cabinet on the 13th April I
wrote to the leader of the council, Cllr Pugh, as the document
produced setting out the four options for the Cabinet to consider
included options which did not appear to comply with the
requirements of the legislation for making the Order. ie
introducing, changing or revoking the Dogs Control Exclusion (Isle
of Wight) Order, which is a Legal Document.
Under their Constitution the Council, when making decisions, are
required to make these in accordance with the law, and to operate
and follow procedures to ensure that these are efficient,
transparent and accountable to local people.

Cllr Pugh has failed to respond to that correspondence or to
subsequent follow up correspondence.
Prior to my pursuing my complaint regarding Cllr Pugh's conduct I
wish to request the following information under the Freedom Of
Information Act:

I require copies of all reports and background papers, and any
records of decisions made by the Council, the Cabinet and the
councils officers from, or relating to, the amendment to the The
Dogs Control Exclusion (Isle of Wight) Order 2008 at the meeting of
the Cabinet on 13th April 2010.

Yours faithfully,

Mr. Figg

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Mr. Figg left an annotation (28 June 2010)

The wightdogs.com website is linking to this request
http://www.wightdogs.com/latestrequests....

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From: Shorter, Penny
Isle of Wight Council

2 July 2010

Attachment 154866.doc
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Dear Mr Figg - please find attached my standard letter of acknowledgement
in response to you recent FOI request

Regards

Penny Shorter | Paralegal - Social Care Team | Legal Team |
Isle of Wight Council | County Hall | Newport | Isle of Wight PO30 1UD
Tel: (01983) 821000 ext. 5292 | Fax: (01983) 823699 | DX: 56361 NEWPORT
(IOW)
Email: [email address] | Web: [1]www.iwight.com

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From: Rowling, Dan
Isle of Wight Council

22 July 2010

Attachment Operational Strategy for Fixed Penalty Notices.pdf
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Dear Mr Figg

Please see below response to your recent request for information via email
dated 28 June 2010.

Your request related to "copies of all reports and background papers, and
any records of decisions made by the Council, the Cabinet and the councils
officers from, or relating to, the amendment to the Dogs Control Exclusion
(Isle of Wight) Order 2008 at the meeting of the Cabinet on 13th April
2010."

The link to the relevant committee report that was on the agenda for the
Cabinet meeting on 13/4/10 is as follows:

[1]http://www.iwight.com/council/committees...

The link to the minutes of the meeting, which record the decision is as
follows:

[2]http://www.iwight.com/council/committees...

As you will see, the background papers on the report are listed as:

44. The comments from the consultation process

45. Isle of Wight Council's Enforcement Policy on the Use of Fixed Penalty
Notices for Environmental Offences.

In regards to your request for a copy of the enforcement policy, this is
attached to the email.

With respect to the comments, there is a large volume of correspondence in
hard copy format. Under the Freedom Of Information Act, the Local
Authority can charge for copies of information provided, based on 10p per
A4 copy, plus postage. If you would like this information to be sent to
you please confirm to me as soon as possible so that the appropriate fee
can be calculated and we can inform you of the correct amount.
Alternatively, you can arrange a suitable appointment to inspect the
records in person.

Please be aware that both options would require a substantial length of
time in order to redact personal information. That time period will be
made known to you once you have made a decision on how you would like to
proceed.

I believe that this letter deals fully with all the matters you have
raised. If you remain dissatisfied with the responses given to your
requests for information, please write to the Corporate Information Unit
at County Hall, or complete the on-line appeals form that can be found at
[3]www.iwight.com/information. If your complaint is not resolved to your
complete satisfaction, you have the ultimate right, once you have
exhausted the internal appeals process, to appeal to the Information
Commissioner.

If we do not hear further within two weeks of receipt of this letter then
we will assume that you are happy for the matters to be considered closed.

Kind regards

Dan Rowling| Operations Coordinator | Community Safety Services
Isle of Wight Council | 14 St Thomas's Square | Charter House | Newport |
Isle of Wight | PO30 1SL
Tel: (01983) 821000
Email: [email address] | Web: [4]www.iwight.com

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From: Mr. Figg

27 July 2010

Dear Isle of Wight Council,

Please pass this on to the person who conducts Freedom of
Information reviews.

I am writing to request an internal review of Isle of Wight
Council's handling of my FOI request 'Irregularities regarding IW
council Cabinet meeting 13th April 2010'.

I would like to offer the Isle of Wight council the opportunity to
review its reply to my FOI request as they have not supplied the
legal advice obtained as to whether the options presented to the
Cabinet complied with the requirements of the legislation, or the
DEFRA guidance on making a Dog Control Order.

If your answer remains that no legal advise was obtained, would you
explain why this was the case and also indicate whether it is the
Isle of Wight council policy to make decisions without first
scrutinising whether the options considered comply with the
requirements of the relevant legislation and guidance issued.

A full history of my FOI request and all correspondence is
available on the Internet at this address:
http://www.whatdotheyknow.com/request/ir...

Yours faithfully,

Mr. Figg

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From: Freedom of Information
Isle of Wight Council

29 July 2010

Dear Mr Figg

Thank you for your recent email.

Your previous request for "copies of all reports and background papers.. relating to the Dog Control Exclusion Order 2008" (ref. iw10/6/48042) was replied to on 22 July. The reply included a link to relevant documents published on the council's website, with respect to the Committee Report presented to Cabinet on 13/4/10. Paper B of the report includes a section on 'Legal Obligations'.

You refer to the council not providing legal advice in the initial reply. However, legal advice, other than that included in the report, does not represent 'background papers', that you previously requested. As such, it is appropriate to consider this request as a new request, rather than an internal appeal.

Your new request has been recorded under reference iw10/7/52746, and will be dealt with in accordance with the Act.

Yours sincerely

Vanda Niemiec (Miss) | Information Manager | Legal Services | Isle of Wight Council | County Hall | Newport | Isle of Wight | PO30 1UD
Tel: (01983) 823803 | Internal: 3803
Email: [email address] | Web: www.iwight.com

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From: Mr. Figg

29 July 2010

Dear Freedom of Information,

I did not only request 'background papers' as you state.
I actually requested:

"I require copies of all reports and background papers, and any
records of decisions made by the Council, the Cabinet and the
councils officers from, or relating to, the amendment to the The
Dogs Control Exclusion (Isle of Wight) Order 2008 at the meeting of
the Cabinet on 13th April 2010."

- any records - includes legal advice. This would be recorded in
relation to the decision as it is a requirement of the IW councils
constitution that decisions are made in accordance with the law.

Would you please supply the information I have requested without
further delay

Yours sincerely,

Mr. Figg

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From: Niemiec, Vanda
Isle of Wight Council

10 August 2010

Attachment Refusal notice S.42.rtf
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Dear Mr Figg

I refer to your email dated 27 July in which you requested legal advice in
respect of the report to Cabinet relating to the Dog Control Orders.

I have checked with relevant colleagues, and can confirm that the council
does hold legal advice with respect to this matter. Unfortunately,
however, the Council is unable to comply with your request for the reasons
set out in the Refusal Notice enclosed.

If you have any complaints in respect of your information request, please
write to the Corporate Information Unit, or complete the on-line appeals
form that can be found at www.iwight.com/foi. If your complaint is not
resolved to your satisfaction, you have the ultimate right, once you have
exhausted the internal appeals process, to appeal to the Information
Commissioner.

Yours sincerely

Vanda Niemiec (Miss) | Information Manager | Legal Services | Isle of
Wight Council | County Hall | Newport | Isle of Wight | PO30 1UD

Tel: (01983) 823803 | Internal: 3803

Email: [1][email address] | Web: [2]www.iwight.com

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From: Mr. Figg

13 August 2010

Dear Niemiec, Vanda,

As the council consider the public interest in maintaining the
exemption from supplying this information outweighs the public
interest in providing it, could the Isle of Wight council therefore
confirm whether the legal advice obtained was acted upon?

And also whether the four options presented to the Cabinet for
consideration in taking the decision to introduce, change or revoke
the Dogs Control Exclusion (Isle of Wight) Order complied with the
legal advice obtained.

I consider the question of whether the council acted in compliance
with the legislation in the making of the Order it to be in the
public interest.

If the council didn't do so the Order would be open to legal
challenge, as would any Fixed Penalty Notices issued and
prosecutions brought as a result of it, in addition this would also
undermine the effectiveness of both Dogs Control Orders, and Fixed
Penalty Notices in general, in tackling anti-social behaviour.

Yours sincerely,

Mr. Figg

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From: Mr. Figg

13 August 2010

Dear Isle of Wight Council,

In addition I am writing to request:

Was the legal advise obtained from the councils own legal
department or from an external source, and was the legal advice
adopted fully?

Yours faithfully,

Mr. Figg

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Mr. Figg left an annotation (14 August 2010)

This annotation is for the information of the members of the wightdogs.com website, which is linking to this request.
http://www.wightdogs.com/apps/forums/top...

The IW council have refused to supply the legal advise requested on the grounds of it being exempt under Section 42 of the Freedom of Information Act, due to "legal professional privilege".

They consider it to be in the public interest for them to withhold the advise they sought as to the legality of the options considered by their Cabinet in determining the Dogs Control Exclusion (Isle of Wight) Order.

The IW Council Constitution it states:
http://www.iwight.com/council/what_is_a_...

Under the heading Executive Summary: "The Constitution which sets out how the Council operates, how decisions are made and the procedures which are followed to ensure that these are efficient, transparent and accountable to local people."

Under Article 1 it further states: "The Council will exercise all its powers and duties in accordance with the law and this Constitution."

At their meeting on the 13 April the councils Cabinet appear to have considered options which prior to being implemented would require a 28 day consultation period, even though the resulting Order was due to come into operation only 18 days after the meeting. I outlined my concerns over this prior to the meeting, which I emailed to Cllr Pugh the Leader of the council, and the head of the cabinet. I never received any reply. When I followed this up with Cllr Pugh my emails were returned to me stating they had been "discarded" as I was "blacklisted".

In accordance to the law?
Efficient, transparent and accountable to local people?
In the public interest?

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From: Niemiec, Vanda
Isle of Wight Council

16 August 2010

Dear Mr Figg

Thank you for your email. The Freedom of Information Act provides for access to recorded information. As your email below does not refer to records, but asks for answers to questions, this falls outside of the Act.

As previously advised, information relating to the committee report and decision made by the Cabinet on 13th April 2010 can be found on the Council's website at http://www.iwight.com/council/meetings/c...

Yours sincerely

Vanda Niemiec (Miss) | Information Manager | Legal Services | Isle of Wight Council | County Hall | Newport | Isle of Wight | PO30 1UD
Tel: (01983) 823803 | Internal: 3803
Email: [email address] | Web: www.iwight.com

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From: Mr. Figg

16 August 2010

Dear Niemiec, Vanda,

I consider the requests I have made pertain to records held by the
Isle of Wight council.

If the Isle of Wight council consider that I have now exhausted the
internal appeals process for this request would you please state
this to be the case in an unambiguous manner. I will then proceed
with an appeal to the Information Commissioner in order to gain
access to the information I am entitled to

Yours sincerely,

Mr. Figg

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From: Niemiec, Vanda
Isle of Wight Council

17 August 2010

Dear Mr Figg

Your above referenced request related to copies of legal advice regarding the amendment to the Dog Control Exclusion Order 2008.

A reply was sent to you by email dated 10 August 2010 enclosing a refusal notice with respect to Section 42 of the Freedom of Information Act.

Please let me know which aspect of the reply you are dissatisfied with, to be considered as an internal review.

Yours sincerely

Vanda Niemiec (Miss) | Information Manager | Legal Services | Isle of Wight Council | County Hall | Newport | Isle of Wight | PO30 1UD
Tel: (01983) 823803 | Internal: 3803
Email: [email address] | Web: www.iwight.com

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From: Mr. Figg

17 August 2010

Dear Niemiec, Vanda,

In answer to your question.

The IW council have refused to supply the legal advice requested on
the grounds of it being exempt under Section 42 of the Freedom of
Information Act, due to "legal professional privilege"

However my original request was for:
"copies of all reports and background papers, and any records of
decisions made by the Council, the Cabinet and the councils
officers from, or relating to, the amendment to the The Dogs
Control Exclusion (Isle of Wight) Order 2008 at the meeting of the
Cabinet on 13th April 2010"

This would include whether the four options presented to the
Cabinet for consideration in taking the decision to introduce,
change or revoke the Dogs Control Exclusion (Isle of Wight) Order,
complied with the legal advice obtained and whether the legal
advice obtained was adopted fully.

This isn't a request to disclose the legal advice but a request for
whether the legal advise obtained was acted upon and fully adopted.
There is a public interest in knowing whether or not legal advice
has been followed. There is also a public interest in public
authorities being accountable for the quality of the decisions they
take and ensuring those decisions are made on the basis of good
quality legal advice. I do not consider that the legal advice in
this case is either complex or involves a fine balance of risks.
There is a requirement in the relevant legislation for a 28 day
consultation period. This is legitimate and valid request. It is in
the public interest although perhaps not in the councils interest.

Yours sincerely,

Mr. Figg

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From: Niemiec, Vanda
Isle of Wight Council

18 August 2010

Dear Mr Figg

Your original request for 'copies of all reports and background papers..' was responded to on 22 July 2010 under reference iw10/6/48042. On the basis that your request for 'legal advice' did not form part of your previous request, this was dealt with as a new request under reference iw10/7/52746. A reply to this request was sent on 10 August 2010.

You are now asking whether the legal advice was provided internally or externally, and, in addition, for confirmation that the legal advice was acted upon. The Council does not consider that this is a valid request for information in accordance with the Freedom of Information Act, and we will therefore not be responding.

If you are dissatisfied with the responses given to your requests for information, please contact the Information Commissioners Office.

Yours sincerely

Vanda Niemiec (Miss) | Information Manager | Legal Services | Isle of Wight Council | County Hall | Newport | Isle of Wight | PO30 1UD
Tel: (01983) 823803 | Internal: 3803
Email: [email address] | Web: www.iwight.com

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Mr. Figg left an annotation (18 August 2010)

I will complain to the Information Commissioner as the council have not supplied all the information requested in order that the public, who they claim to be accountable to, would be able to scrutinise whether the decisions they have taken comply with their own published constitution.

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