COUNCIL DUTY to ACT Openly, Fairly, Reasonably And Proportionately

Gwrthodwyd y cais gan Croydon Borough Council.

Dear Croydon Borough Council,

Could you please confirm whether you accept that the council is under a Duty to act Openly, Fairly, Reasonably and Proportionately in all its actions and decisions, and in particular when consulting on, taking and making Decisions on traffic management?

Many borough electors would have hoped if not assumed this did not need to be said, but various recent actions and decisions of the council make this a timely and legitimate question.

Unless the answer is an unqualified YES, please provide a full explanation of the council's DUTY in this regard.

Yours faithfully,

Farook Jahman

Dear Croydon Borough Council,

12 days have passed without any reply.
Please confirm my FOI Request is being processed.

Yours faithfully,

Farook Jahman

Information, Croydon Borough Council

Dear Mr Jahman

Thank you for your email.

I have searched our inboxes and database and we do not appear to have received your request.

If you could forward it to me at this email address, I shall book it in as a matter of urgency.

Kind regards.

Jo
Information Team

Dear Information,

The original FOI Request may be seen at these weblinks.
http://bit.ly/2vhYNb8
https://www.whatdotheyknow.com/request/c...

The text is very simple.
"Could you please confirm whether you accept that the council is under a Duty to act Openly, Fairly, Reasonably and Proportionately in all its actions and decisions, and in particular when consulting on, taking and making Decisions on traffic management?

Many borough electors would have hoped if not assumed this did not need to be said, but various recent actions and decisions of the council make this a timely and legitimate question.

Unless the answer is an unqualified YES, please provide a full explanation of the council's DUTY in this regard."

The system failure is under investigation.

Yours sincerely,

Farook Jahman

Sent request to Croydon Borough Council again.

Information, Croydon Borough Council

Dear Mr Jahman

Thank you for your email.

This is not an FOI request and has been passed on to the relevant service who will get back to you.

Kind regards.

Jo
Information Team

Dear Croydon Borough Council,

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

I am writing to request an internal review of Croydon Borough Council's handling of my FOI request 'COUNCIL DUTY to ACT Openly, Fairly, Reasonably And Proportionately'.

I do not see why the council claimed this was not an FOI Request.
I asked for information on the council's duty to act OPENLY, FAIRLY, REASONABLY and PROPORTIONATELY when making decisions or taking action.

Regardless, no substantive reply has been provided, despite 3 months having passed, and that is after the council claimed not to have received the original request, despite it showing confirmed Delivery.

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

Yours faithfully,

Farook Jahman

Gadawodd Abdul Sulieman anodiad ()

Page 89, §11.4 of Operational Guidance to Local Authorities: - Parking Policy and Enforcement - Traffic Management Act 2004 dated March 2008, states: "Under general principles of public law, uthorities have a duty to act fairly and proportionately".

Information, Croydon Borough Council

Dear Mr Jahman,

Thank you for your email.

Your original request was sent to the service to deal and I am sorry that you have not received a response yet.

I shall log this as an FOI request to ensure you get a prompt reply.

Kind regards.

Jo Welch-Hall

Information Team

dangos adrannau a ddyfynnir

Information, Croydon Borough Council

Dear Mr Jahman

 

 

Thank you for your email, you have asked:

 

 

I asked for information on the council's duty to act OPENLY, FAIRLY,
REASONABLY and PROPORTIONATELY when making decisions or taking action.

 

In response to the above, the Freedom of information Act (FoIA) and
Environmental Information Regulations (EIR) provides a general right of
access to recorded information held by public authorities, however you
have sought views/opinions which by their very nature are not recorded
information. 

 

FoIA/EIR is only applicable to information held by the public authority in
recorded format and we are not required to provide opinion or speculate in
order to answer a FoIA/EIR request therefore the Council is unable to
provide you with a response in respect of the above.

 

If you have a request for recorded information then we will be happy to
assist you.

 

Kind Regards

 

Ash Riaz

Information Coordinator

ICT Client Unit (ICU)

Customer Transformation and Communications Services

Information Team

Resources Department

7th Floor, Zone B

Bernard Weatherill House

8 Mint Walk

Croydon, CR0 1EA

 

 

 

dangos adrannau a ddyfynnir

Dear Information,

Thank you for your reply.

I was not asking for random views or opinions, but the settled policy of the council on this issue.
Either it has or it does not have such a policy - and each of the 4 elements has to be considered separately.

I note the council is under a duty to assist, and should not take a narrow definition of recorded information.
For example if something is established policy and practice, then that should be revealed even if it is not explicitly written down.

The question is whether the council is under a duty to act Openly, Fairly, Reasonably And Proportionately in all its actions and decisions, and in particular when consulting on, taking and making Decisions on traffic management.

As a matter of fact, it must be the case that one of each applies as below, that is either the council IS, or IS NOT under such a duty, or DOES NOT KNOW either way.:

OPENLY : - YES - NO - NOT KNOWN
FAIRLY : - YES - NO - NOT KNOWN
REASONABLY : - YES - NO - NOT KNOWN
PROPORTIONATELY : - YES - NO - NOT KNOWN

To determine the facts here, the council needs to search through its policies and practice statements, and the guidance issued by senior officers within their department, and that issued by the legal department, and see whether in fact there is any recorded advice to officers in each of the above regards.
It might assist to consult senior officers in the Parking, Traffic and Highways Department, who may be able to say whether in fact they are aware of any such duty, for example whether they have been asked about it, and if so whether they have replied, and if so, what they said.

To assist, there is an annotation posted to this FOI:

Abdul Sulieman left an annotation (23 November 2017)

Page 89, §11.4 of Operational Guidance to Local Authorities: - Parking Policy and Enforcement - Traffic Management Act 2004 dated March 2008, states: "Under general principles of public law, authorities have a duty to act fairly and proportionately".

Accordingly, the council needs to confirm if senior officers are aware of this guidance, for example it probably was drawn to their attention when issued?
It should be a standard reference text for the Parking, Traffic and Highways Department,
Then does the council have any policy or practice statement to say it will comply with this?

Then there is this:
http://bit.ly/1y6gNEQ
"The authority, under the direction of the commissioners, will have 3 months to prepare a strategy and action plan setting out how it will comply with its duty to act openly and transparently, serving all of its communities fairly and securing value for money."

Accordingly, the council needs to confirm if senior officers are aware of this guidance, for example it probably was drawn to the attention of some officers when issued?
Then does the council have any policy or practice statement to say it will comply with this?

Yours sincerely,

Farook Jahman

Information, Croydon Borough Council

Dear Mr Jahman

 

Thank you for your reply.

 

I was not asking for random views or opinions, but the settled policy of
the council on this issue.

Either it has or it does not have such a policy - and each of the 4
elements has to be considered separately.

 

I note the council is under a duty to assist, and should not take a narrow
definition of recorded information.

For example if something is established policy and practice, then that
should be revealed even if it is not explicitly written down.

 

The question is whether the council is under a duty to act Openly, Fairly,
Reasonably And Proportionately in all its actions and decisions, and in
particular when consulting on, taking and making Decisions on traffic
management.

 

As a matter of fact, it must be the case that one of each applies as
below, that is either the council IS, or IS NOT under such a duty, or DOES
NOT KNOW either way.:

 

OPENLY : -    YES - NO - NOT KNOWN

FAIRLY   : -   YES - NO - NOT KNOWN

REASONABLY  : -     YES - NO - NOT KNOWN

PROPORTIONATELY  : -    YES - NO - NOT KNOWN

 

To determine the facts here, the council needs to search through its
policies and practice statements, and the guidance issued by senior
officers within their department, and that issued by the legal department,
and see whether in fact there is any recorded advice to officers in each
of the above regards.

It might assist to consult senior officers in the Parking, Traffic and
Highways Department, who may be able to say whether in fact they are aware
of any such duty, for example whether they have been asked about it, and
if so whether they have replied, and if so, what they said.

 

 

Here is a web link to policies on the Councils website,
[1]https://www.croydon.gov.uk/democracy/dan... the Council does
have other inhouse policy documents none of which will have the four
headings you are asking seeking.

 

The Freedom of Information (Fees and Appropriate Limit) Regulations 2004
specify an “appropriate limit” for the amount of time the council needs to
spend undertaking that search.  If the council estimates that the time to
taken to locate, retrieve and extract the information requested will
exceed the appropriate limit, then under Section 12 of the Act, it is not
obliged to carry comply with that request.

 

The appropriate limit currently specified by the Regulations for local
authorities is £450. This represents the estimated cost of one person
spending two and a half working days in locating, retrieving and
extracting the information from where it is stored. 

 

This information is not located centrally and so in order to provide the
information you have requested, the Council would need to undertake a
specific piece of work and speak hundreds of staff to ensure all policies.

 

There will then be a need to collate all this information centrally and
even send reminders to those officers who do not respond in a timely
manner, once all this data has been gather it will then need to be
collacted and gone through again to ensure it complies with your request.

 

And so in light of all of the above the cumulative time it would take
Council officers to do this would exceed the “appropriate limit”. 
Therefore, we are unable to disclose the information you are seeking as it
would take our officers in excess of 18 hours.

 

 

To assist, there is an annotation posted to this FOI:

 

Abdul Sulieman left an annotation (23 November 2017)

 

Page 89, §11.4 of Operational Guidance to Local Authorities: - Parking
Policy and Enforcement - Traffic Management Act 2004 dated March 2008,
states: "Under general principles of public law, authorities have a duty
to act fairly and proportionately".

 

Accordingly, the council needs to confirm if senior officers are aware of
this guidance, for example it probably was drawn to their attention when
issued?

It should be a standard reference text for the Parking, Traffic and
Highways Department, Then does the council have any policy or practice
statement to say it will comply with this?

 

Then there is this:

http://bit.ly/1y6gNEQ

"The authority, under the direction of the commissioners, will have 3
months to prepare a strategy and action plan setting out how it will
comply with its duty to act openly and transparently, serving all of its
communities fairly and securing value for money."

 

Accordingly, the council needs to confirm if senior officers are aware of
this guidance, for example it probably was drawn to the attention of some
officers when issued?

Then does the council have any policy or practice statement to say it will
comply with this?

 

This is not recorded information.

 

 

Kind Regards

 

Ash Riaz

 

Information Coordinator

ICT Client Unit (ICU)

Customer Transformation and Communications Services

Information Team

Resources Department

7th Floor, Zone B

Bernard Weatherill House

8 Mint Walk

Croydon, CR0 1EA

 

 

 

 

 

 

dangos adrannau a ddyfynnir

Freedom of Information, Croydon Borough Council

 

Dear Mr Jahman

 

Freedom of Information Request

 

Thank you for your recent request.

 

Your request is being considered and you will receive a response within
the statutory timescale of 20 working days, subject to the application of
any exemptions. Where consideration is being given to exemptions the 20
working day timescale may be extended to a period considered reasonable
depending on the nature and circumstances of your request. In such cases
you will be notified and, where possible, a revised time-scale will be
indicated. In all cases we shall attempt to deal with your request at the
earliest opportunity.

 

There may be a fee payable for the retrieval, collation and provision of
the information requested where the request exceeds the statutory limit or
where disbursements exceed £450. In such cases you will be informed in
writing and your request will be suspended until we receive payment from
you or your request is modified and/or reduced.

 

Your request may require either full or partial transfer to another public
authority. You will be informed if your request is transferred.

 

If we are unable to provide you with the information requested we will
notify you of this together with the reason(s) why and details of how you
may appeal (if appropriate).

 

Please note that the directorate team may contact you for further
information where we believe that the request is not significantly clear
for us to respond fully.

 

 

Yours sincerely

 

Ahtisham Riaz

FOI Co-ordinator

Croydon Council

 

Information in relation to the London Borough of Croydon is available
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Dear Croydon Borough Council,

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

I am writing to request an internal review of Croydon Borough Council's handling of my FOI request 'COUNCIL DUTY to ACT Openly, Fairly, Reasonably And Proportionately'.

16-8-17: - FOI Request made
21-8-17: - Follow up sent
21-8-17: - Croydon claim original not received
21-8-17: - FOI resent
22-8-17: - Croydon claim is not an FOI Request, sent for reply
23-11-17: - Internal Review , no Croydon reply
27-11-17: - Croydon log as FOI for reply
29-11-17: - Croydon claim asking for opinions, not recorded material
30-11-17: - Explain why FOI Request is for recorded information
30-11-17: - Croydon REFUSE on cost grounds, claiming need to speak to "hundreds of staff to ensure all policies"
30-11-17: - Croydon then treat as fresh FOI
17-12-17: - 2nd Internal Review - No actual response to 23-11-17 IR Request. Contradictory responses on 30-11-17.

Please note, there is no need to contact "hundreds of staff to ensure all policies".
I suggested contacting "senior officers in the Parking, Traffic and Highways Department", which cannot be more than about 20 people.
It would in any event be sensible to start with the most senior staff and work down if nothing was known.
That means .Chief Executive + Executive Directors, then the Directors within their departments, notably PLACE.

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

Yours faithfully,

Farook Jahman

Derby, James, Croydon Borough Council

Dear Mr Jahman

I write regarding your email below; you have requested an internal review of the "FOI request" you submitted to the Council; I note the series of correspondence between you and officers of the Council in the Information team who are responsible for processing requests for information under the Freedom of Information Act 2000 and other relevant access to information legislations. I apologise for that your initial request was not located and further apologise for any inconvenience this may have caused you. Please find below the outcome of my internal review.

In undertaking this internal review, I have examined your request for information contained and the responses you have been provided with. I have also examined the provisions of the Freedom of Information Act 2000 (FOIA), relevant guidance notes and decision notices from the Information Commissioner’s Office (ICO) and the First Tier Tribunal. I have then set out my decision as to whether or not the Council complied with its obligations under the FOIA.

Section 1 of the FOIA gives a general right of access to information held by a public institution. Where the information requested is held by the pubic authority, it should communicate the information to the requestor. This is however subject to exemptions available under the FOIA.

The issues for determination in this internal review are whether (a ) the information you have requested is held by the Council and ( b ) whether if held the Council should have provide it to you without applying the cost exemption as provided in Section 12 FOIA

Section 1(1)(a) of the FOIA requires a public authority to inform the complainant in writing whether or not recorded information is held that is relevant to the request. Section 1(1)(b) requires that "if the requested
information is held by the public authority it must be disclosed to the complainant unless a valid refusal notice has been issued. In scenarios where there is some dispute about the information held by a public authority and information that a complainant believes may be held, the ICO, following the lead of a number of Information Tribunal decisions, applies the civil standard of the balance of probabilities. In other words, in order to determine such complaints, the Commissioner must decide whether, on the balance of probabilities, a public authority holds any information which falls within the scope of the request (or whether any information was held at the time of the request". (See ICO DECISION of 5th September 2016 - The Chair of Governor: The Abbey Christian Brothers Grammar School, FS50626916).

Section 3(2) of the FOIA sets out the two legal principles that establish whether information is held for the purposes of the FOIA. In the ICO DECISION NOTICE Of 20 July 2017 East Sussex Fire & Rescue Service - FS50669970" the ICO stated the 2 principles as follows: “For the purposes of this Act, information is held by a public authority if—
(a) it is held by the authority, otherwise than on behalf of another
person, or
(b) it is held by another person on behalf of the authority.”

The FOIA covers and is only applicable to any recorded information that is held by a public authority in England, Wales and Northern Ireland. According to the ICO "recorded information includes printed documents, computer files, letters, emails, photographs, and sound or video recordings". (See https://ico.org.uk/for-organisations/gui.... )

For ease of reference I hereby repeat your FOI request : "Could you please confirm whether you accept that the council is under a Duty to act Openly, Fairly, Reasonably and Proportionately in all its actions and decisions, and in particular when consulting on, taking and making Decisions on traffic management".

I have considered your FOI request with the provisions of Sections 1 and 3 of the FOIA and I must agree with the Council's information Team that your purported FOI request has not asked for disclosure of recorded information that is held by the Council. At best your purported FOI request, seems to ask the Council a question about compliance with issues relating to public law when dealing with, consulting on or making decisions on traffic management within the borough; I am therefore of the view that your request does not constitute a request for information as provided for under the provisions of the Freedom of Information Act 2000.

I note the Council's Information Team applied the Section 12 cost exemption in refusing to provide you information. The exemption is only engaged where the information requested is held by the Council however the council is of this opinion that that he cost of complying with the request with the request would exceed the appropriate limit which has been set by the Government. I am therefore of the view that the cost exemption was not engaged as your request did not constitute a proper request under the FOIA.

I have taken the liberty to consider how the Council may be of assistance to you regarding the issues you wish to know in your request; I am aware Council decisions relating to traffic management and related issues are conducted through various democratic processes that ensure principles of public law which includes transparency, fairness, proportionality are applied. These decision making processes are conducted through the Council's Traffic Management Advisory Committee and the relevant documentations are available to the public on the council's website at www.croydon.gov.uk. If there is any specific document relating to traffic management within the council that you wish to access, you may make a FOI request specifying the document and this will be processed appropriately.

I hope you find this satisfactory; if you however remain dissatisfied with this decision, you may refer the matter to the Information Commissioner’s Office.

The Information Commissioner can be contacted at: Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF or at [email address].

James Derby
Corporate Solicitor
Legal & Democratic Services
Resources Department
London Borough of Croydon
Bernard Weatherhill House
8 Mint Walk
CR0 1EA
Tel: 020 8760 6000 Ext. 61359
Fax: 020 8760 5657

dangos adrannau a ddyfynnir

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