Portfolio Holder Decisions

Andy Platt made this Rhyddid Gwybodaeth request to Nottingham City Council

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

Roedd y cais yn rhannol lwyddiannus.

Dear Nottingham City Council,

I am writing to you to request copies of portfolio holders' decisions 727, 729, 730, 731 and 737 under the Freedom of Information Act.

There seems to be a recent trend of announcing portfolio holders' decisions on the NCC website without publishing the decisions themselves. In the case of #727 it is claimed that the decision is exempt from publication but there is no explanation why. No such claim is made for the other unpublished decisions.

Please could you therefore provide a specific explanation for the claimed exemption for publication of #727?

In addition, if it is in fact claimed that the other decisions are exempt from publication please also provide specific explanations for those also.

Can I add that I have emailed committee services a number of times asking for explanations on all but #737 (it has only gone up today) but for reasons known only to themselves they have not bothered to reply. There have been cases in the past where decisions have been left off the website in error in the past.

Yours faithfully,

Andy Platt

Information Governance, Nottingham City Council

Dear Sir,

Thank you for your request for information. As the information you requested is not personal nor environmental it will be processed in accordance with the relevant section of the Freedom of Information Act 2000.

A response will be sent to you as soon as possible and in any case within the statutory deadline which is 20 working days starting the working day after this authority received your request.

If you should have any questions please contact this office on the above number quoting your personal case reference which is IGO/10-7439.

Sincerely,

Glenn E. Estes
Information Governance Case Administrator

Information Governance
Nottingham City Council
1st Floor
Loxley House
Station Street
Nottingham
NG2 3NG

Telephone: 0115 876 3855

dangos adrannau a ddyfynnir

Gadawodd Andy Platt anodiad ()

Interesting to note that notices now added saying that the unpublished decisions are exempt from being published under sch 12A of LGA 1972. Still no explanations why though.

Hard to see why decisions purchasing property can ever be exempt, nor a review of the waste management and carbon management plan.

The fact that these decisions are made by a single councillor and are kept secret only invites suspicion.

Hopefully, we will at least get explanations for the exemptions out of this FoIA request.

Information Governance, Nottingham City Council

1 Atodiad

Dear Sir,

Please find attached the response to your request.

Sincerely,

Glenn E. Estes
Information Governance Case Administrator

Information Governance
Nottingham City Council
1st Floor
Loxley House
Station Street
Nottingham
NG2 3NG

Telephone: 0115 876 3855

dangos adrannau a ddyfynnir

Dear Nottingham City Council,

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

I am writing to request an internal review of Nottingham City Council's handling of my FOI request 'Portfolio Holder Decisions'.

The decision states that the information is exempt under s.44 and I understand that this is an absolute exemption. However the exemption relies in turn on sch 12A LGA 1972 and this includes an inbuilt public interest consideration. I therefore argue that a review of this decision does in effect require an assessment of the public interest in disclosure, if not under s.44 then under sch 12A.

In the case of Portfolio holders decisions 727, 729, 730 and 731 I note that the following reason for non publication is given under sch 12A

"...it contains information relating to the financial or business affairs of any particular person, including the City Council and, having regard to all the circumstances, the public interest in maintaining the exemption outweighs the public interest in disclosing the information."

I would argue that the threshold for the public interest being with non disclosure would be extremely high. Firstly, without the public interest qualification this exemption would potentially cover all NCC decisions which cannot be the purpose of the legislation. This implies that the use of such an exemption should very much be the exception.

Secondly, there is always a public interest in the public being able to observe the business of the council, after all they pay for it, they base their votes on how well the council spends their money and secrecy is simply not consistent with these requirements of a democracy. Again, this sets the threshold extremely high for non-disclosure.

NCC could consider publishing a redacted version of the decision if there are certain commercial details contained. However, information concerning the total cost and what council taxpayers get in return would, I suggest be subject to the same very high threshold of justification for non disclosure.

One of the difficulties of arguing public interest is that it is difficult to do without knowing what the decisions are about. However, it is difficult to see what public interest there could be in non disclosure of a simple property transaction or a decision on sporting activities in Nottingham. In addition the decision for hospitality at the Royal Centre is a very long term contract which presumably will lock the council in for the entire length of the contract, potentially beyond the current administration remaining in power.

I do not accept that there is any public interest in keeping the details of suppliers secret, these are normally routinely published.

Decision 737 has been kept from disclosure for the following reason

"...it contains information relating to consultations or negotiations or contemplated negotiations or contemplated negotiations in connection with a labour relations matter arising between the Council and employees of the Council and, having regard to all the circumstances, the public interest in maintaining the exemption outweighs the public interest in disclosing the information."

Again a review should consider the public interest in non disclosure v disclosure. In this case the Carbon and Waste Management Plan has been announced with great fanfare to the press and on the council's website. There is therefore legitimate public interest as to why it is to be reviewed so soon.

In addition, being a citywide initiative it is questionable as to whether it is constitutional for a portfolio holder to make such a decision and disclosure would aid an interested observer in making that judgment.

Again, the council could have considered publishing a redacted decision with personnel matters removed for example.

To conclude, in all these cases there is no evidence of the public interest in disclosure having been made properly. I would also remind you that the public interest is not served by saving the council or particular councillors from embarrassment, quite the opposite.

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

Yours faithfully,

Andy Platt

Information Governance, Nottingham City Council

Dear Mr. Platt,

Thank you for your request for an internal review of the decision to
withhold several Portfolio Holder decisions under S.12A of the Local
Government Act 1972 (LGA). Please note that we will not be actioning your
request for the following reason.

The LGA does not provide for a right of appeal of the decisions to exempt
certain information.

As you are also aware, schedule 12A of the Local Government Act 1972
provides for a prohibition on disclosure in certain circumstances where
the public interest is in maintaining the exemption. The information in
question was assessed, a public interest test was carried out and the
information exempted at the time it was created.

As you correctly pointed out, section 44 of the Freedom of Information Act
2000 (FOIA) is an absolute exemption and therefore, as long as the
information in question falls within the definition of the exemption, no
public interest is required. FOIA does not incur any obligation on this
Authority to examine the original decision to assess its authority in
these circumstances. It only requires that the information is assessed to
see whether it falls within the definition of the exemption, which in this
case it obviously does.

I am not in a position to advise you of any method by which the original
decision to exempt the information under s.12A of the LGA 1972 could be
challenged and I would suggest that you seek your own legal advice if you
wish to take the matter further.

I trust the above is clear however should you have any queries regarding
this email please do not hesitate to contact this office.

Regards,

Andrew Goodfellow

Senior Information Governance Officer

Nottingham City Council | Loxley House | Station Street | Nottingham | NG2
3NG

dangos adrannau a ddyfynnir

Dear Information Governance,

You do not have a right to refuse to carry out a review, therefore I am taking your response to be a refusal notice and will therefore refer the matter to the Information Commissioner.

Yours sincerely,

Andy Platt

Information Governance, Nottingham City Council

Dear Mr. Platt,

As previously stated, there is no formal right of appeal with the
application of schedule 12A of the Local Government Act 1972. In addition
and for your information, the Information Commissioner has no powers to
issue a decision notice on matters outside of his jurisdiction, that is
those matters which lie outside of the Freedom of Information Act 2000,
the Environmental Information Regulations 2004 and the Data Protection Act
1998.

The above notwithstanding, we are willing to interpret your communication
as an appeal of our application of the section 44 exemption and will issue
a formal response in due course.

Regards,

Andrew Goodfellow

Senior Information Governance Officer

Nottingham City Council | Loxley House | Station Street | Nottingham | NG2
2NG

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Gadawodd Matt Kane anodiad ()

I'd challenge them on this. Schedule 12A of the LGA does not provide a section 44 exemption. This has been confirmed by the ICO here: http://www.ico.gov.uk/upload/documents/d...

Section 44 provides for an exemption if disclosure would be prohibited by other legislation. Schedule 12A of the LGA does not prohibit release. I have requested internal reviews on a number of occasions when councils have attempted to use schedule 12A, and each time the legal advice they have taken has led to them changing their decision, and disengaging the section 44 exemption. Take a look at some of my requests for examples.

Gadawodd Andy Platt anodiad ()

Thanks a lot Matt, that's extremely helpful.

Andy

Dear Information Governance,

I would suggest that you consider this earlier decision by the Information Commissioner

http://www.ico.gov.uk/upload/documents/d...

and in particular paras 50-52 which say -

"50. The public authority has argued that schedule 12A of the Local Government Act 1972 operates as a statutory bar to disclosure and therefore the exemption at section 44 of the Act is engaged. Schedule 12A sets out categories of information considered to be “exempt information” – i.e. information that is exempt from the duty to disclose under the Local Government Acts. It has been replaced by Schedule 12A of the Local Government (Access to Information) (variation) Order 2006 (SI 2006/88).

51. It is the Commissioner’s belief that schedule 12A operates only to exempt information from being disclosed for the purpose of the formal decision-making process and other local government proceedings. The Commissioner does not accept that information which is exempt under those provisions for those specific purposes is necessarily exempt from disclosure under the Freedom of Information Act. When a request to which the Freedom of Information Act applies is received, the relevance of any exemptions under that Act must be considered as at the time the request is received.

52. Accordingly, it is the Commissioner’s view that schedule 12A does not operate as a statutory prohibition to disclosure under the Act and therefore the exemption at section 44 of the Act does not apply in this instance."

It is clear that the Commissioner does not consider sch12A to be a statutory bar to disclosure so s.44 doesn't necessarily apply.

Yours sincerely,

Andy Platt

Gadawodd Andy Platt anodiad ()

Gadawodd Matt Kane anodiad ()

Glad I could help! I think a lot of councils seem to be under the mistaken impression that they can use schedule 12a as some kind of blanket exemption.

Dear Information Governance,

Can you please confirm what is happening with this? Are you still intending to provide a formal response to my request for a review?

It's just that, if you are not, the time limit for responding to my review request expires tomorrow and if I hear nothing further I will be referring the case to the ICO as a refusal the day after.

Yours sincerely,

Andy Platt

Information Governance, Nottingham City Council

Dear Mr Platt

I can confirm that I am still intending to respond to your request but regret that the answer will not be with you by today's statutory deadline.

The Council is exercising its right to extend the deadline by a further 20 working days permitted under section 10(3) of the Freedom of Information Act 2000.

Please accept this email as a refusal notice issued in accordance with section 17(1) as the Public Authority requires more time in order to consider the public interest issues in the case and to reassess the application of the Schedule 12A exemption in each instance.

I shall therefore respond to you as soon as I am able and in any event no later than 27th October 2010.

Yours sincerely

Stephanie Pearson
Information Governance Manager
Nottingham City Council
Loxley House, Station Street,
Nottingham, NG2 3NG
Tel: 0044 115 87 63855
E-mail: [email address]
Web: www.nottinghamcity.gov.uk

dangos adrannau a ddyfynnir

Dear Information Governance,

You said that you would be providing me with a response by yesterday yet I have yet to hear back from you.

I am of the view that the reasons for your delay are fundamentally misconceived and that furthermore, as the matter is already at the internal review stage, I am not sure that you can delay the response under s.10.

Therefore, unless I receive a full response by midday 29/10/10 I will be referring the matter to the Information Commissioner.

Yours sincerely,

Andy Platt

Information Governance, Nottingham City Council

Dear Mr Platt

Further to your communication below, I can advise you that a response has been prepared and will be issued to you on Monday 1st November 2010. Please accept my sincere apologies for the delay; this is owing to my needing to contact a senior officer for comments, prior to disclosure, who is unavailable today.

Yours sincerely

Stephanie Pearson
Information Governance Manager
Nottingham City Council
Loxley House, Station Street,
Nottingham, NG2 3NG
Tel: 0044 115 87 63855
E-mail: [email address]
Web: www.nottinghamcity.gov.uk

dangos adrannau a ddyfynnir

Dear Information Governance,

I was expecting your response a couple of days ago, any reason for the delay?

Yours sincerely,

Andy Platt

Gadawodd Andy Platt anodiad ()

Disgraceful lack of response despite promises. Sent to Information Commissioner.

Dear Information Governance,

What happened to the response that was supposedly due on 1 November?

You are in breach of the law in refusing to provide a response.

Yours sincerely,

Andy Platt

Gadawodd Andy Platt anodiad ()

NCC's final response to this request has been incorrectly added to a different request. As such it can be found here

http://www.whatdotheyknow.com/request/de...

Information Governance, Nottingham City Council

4 Atodiad

Dear Mr Platt

Please find attached the response to an internal review that you made to
the Authority surrounding a lack of response to an earlier request in
relation to 5 exempt Portfolio Holder Decisions. Please now find three of
these decisions attached for your information. One (727) has been
withheld, and one (729) never existed as it was superseded by 730.

Please accept my sincere apologies for the delay in issuing this reply.

Kind regards

Stephanie Pearson

Information Governance Manager

Nottingham City Council

Loxley House, Station Street,

Nottingham, NG2 3NG

Tel: 0044 115 87 63855

Fax: 0044 115 87 63232

E-mail: [1][Nottingham City Council request email]

Web: [2]www.nottinghamcity.gov.uk

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Information Governance, Nottingham City Council

2 Atodiad

Dear Mr Platt

Please find attached a further reply in relation to original case 7439 and
appeal 7476. I note you have complained about the Council's handling of
this case to the Information Commissioners Office (ICO), and the reply
attached is the Council's further response following dialogue with the
ICO.

Please note a copy of this reply has been sent to the ICO for their
reference.

Yours sincerely

Stephanie Pearson

Information Governance Manager

Nottingham City Council

Loxley House, Station Street,

Nottingham, NG2 3NG

Tel: 0044 115 87 63855

Fax: 0044 115 87 63232

E-mail: [1][Nottingham City Council request email]

Web: [2]www.nottinghamcity.gov.uk

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This e-mail (and any attachments) is confidential and may
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Nottingham City Council unless specifically stated.
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Information Governance, Nottingham City Council

3 Atodiad

Dear Mr Platt

Further to your request for these responses to be sent to the correct case
- please now find these responses attached and below. Please accept my
sincere apologies for this error.

"Dear Mr Platt

Further to additional dialogue with the Information Commissioners Office,
I have now re-instated the name of the previous Contractor to the attached
redacted document. The only information that is now being protected under
section 43(2) is the financial information and this is for the reasons
explained in my letter of 16^th May 2011. Please therefore accept this
email as a further refusal notice issued in accordance with section 17 of
the Act".

Yours sincerely

Stephanie Pearson

Information Governance Manager

Nottingham City Council

Loxley House, Station Street,

Nottingham, NG2 3NG

Tel: 0044 115 87 63855

E-mail: [1][email address]

Web: [2]www.nottinghamcity.gov.uk

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This e-mail (and any attachments) is confidential and may
contain personal views which are not the views of
Nottingham City Council unless specifically stated.
If you have received it in error, please delete it from
your system, do not use, copy or disclose the information
in any way nor act in reliance on it and notify the sender
immediately. Please note that Nottingham City Council
monitors e-mails sent or received for the purposes of
ensuring compliance with its policies and procedures.
Further communication will signify your consent to this.
The contents of e-mails sent or received may have to be
disclosed if a relevant request is made under current
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