Business Change and Information Solutions
Sheffield City Council, PO Box 1283, Sheffield, S1 1UJ
E-mail: xxx@xxxxxxxxx.xxx.xx
Website:
www.sheffield.gov.uk
17th January 2018
Dear Mr Hurd,
I am writing in connection with the Freedom of Information request you submitted
on 19th August 2017 (our reference 733) and subsequent request for internal
review.
Initially please accept my apologies for the protracted delay in response to your
request for internal review. The Council does endeavour to provide a response to
internal reviews within 20 working days, however upon occasion a review can be
delayed as has occurred with this response. Unfortunately due to a number of
factors we have been significantly delayed in providing responses to internal
reviews.
In your request, you specifically asked for the following information:
Steve Eccleston Assistant Director Legal Services has said in a letter:
"Following the Judge’s judgement this week, could you please inform your
supporters by social media prior to August 23 2017 that the council will
continue to view STAG & protesters’ social media postings for the purpose
of gathering evidence in case of breach of the Court Orders"
Can you identify:
1. The number of staff whose role includes monitoring and viewing STAG
& protesters’ social media postings for the purpose of gathering evidence.
2. What department the staff whose role is to monitor and view STAG &
protesters’ social media postings for the purpose of gathering evidence
report and belong to.
3. The start of the record collection exercise to monitor and view STAG &
protesters’ social media postings for the purpose of gathering evidence.
4. The number of records retained by SCC from STAG & protesters’ social
media postings. Both collected in the gathering evidence exercise and any
other monitoring exercise.
Page 1 of 12
No header
5. Any policy documents or guidance issued to staff regarding viewing
STAG & protesters’ social media postings for the purpose of gathering
evidence.
6. Could you please ask the Councillor Bryan Lodge, Paul Billington from
the Management Team and Steve Eccleston Assistant Director from
Legal Service to identify public records they hold or have been sent, cc'd
on that contains Information sourced from Open Source Intelligence from
the Facebook Platform from 2016-present. Or if they know members of
staff who will hold records relevant to this FOI request. For open source
public records which are found please disclose.
In a previous request you couldn't fulfill a similar search of records for as
there are around 140 staff would be subject to the request and any
attempt to collate this information would involve a manual trawl exceeding
the cost limi. The request has been amended to three named individuals
and staff identified by those three, one of which has penned a letter stating
activities pursuant to this FOI are taking place.
I have carried out an Internal Review of the handling of your request. Please take
this letter as the response to your request for an Internal Review.
The intention of an internal review is to consider if we handled your response in
accordance with the law and to consider if any decisions made, for example to
refuse information, were correct and still apply.
In my review of the processing of this request I have considered:
• Your original request
• The response to your request
• The information requested
Time for Compliance
Section 10 – Time for compliance with request (http://www.legislation.gov.uk/ukpga/2000/36/section/10) Section 10 of the Freedom of Information Act states that Sheffield City Council
must respond to requests made under the Freedom of Information Act within 20
working days of receipt. In this case, your request was received by Sheffield City
Council on 19th August 2017 which was responded to on 12th September 2017;
though I appreciate that a document was missing from the initial disclosure and
subsequently provided on the 14th September. These responses were provided
within 20 working days, therefore, I am satisfied that Section 10 of the Freedom
of Information Act was correctly complied with in this case.
Page 2 of 12
No header
The exemption(s) which were applied to the information you requested
Section 17 – refusal notice
(http://www.legislation.gov.uk/ukpga/2000/36/section/17)
Section 17 of the Freedom of Information Act requires the Council to state and
identify the exemption being applied, together with noting the reasons why the
exemption applies. The Council is also required to detail our internal review
procedure and highlight the right of appeal to the Information Commissioner’s
Office (ICO).
Your right of appeal was detailed in our response and we confirmed the
application of exemptions, in this case:
Section 12 - Exemption where cost of compliance exceeds appropriate limit
(http://www.legislation.gov.uk/ukpga/2000/36/section/12) Section 40 – Personal information
(http://www.legislation.gov.uk/ukpga/2000/36/section/40) Section 42 – Legal professional privilege
(http://www.legislation.gov.uk/ukpga/2000/36/section/42) Have the exemptions been correctly applied in this case?
Please see the considerations below. Where appropriate I have also provided my
further considerations on the application of these exemptions in the review of the
specific comments you have raised in your request for internal review.
• Section 12 - Exemption where cost of compliance exceeds appropriate
limit
The explanation why this exemption applied was provided to you in our original
response and was detailed as follows in respect to point 6 of your request where
you asked for details of information held by three named on ‘public records they
hold or have been sent, cc'd on that contains Information sourced from Open
Source Intelligence from the Facebook Platform from 2016-present. Or if they
know members of staff who will hold records relevant to this FOI request. For
open source public records which are found please disclose.’ The response
noted:
While a literal response to your question could be framed as “yes we have asked
them”. We recognise our obligation under Section 16 of the Freedom of
Information Act to assist people making requests and have interpreted your
question as being a request that Steve Eccelston, Paul Billington, Councillor
Lodge trawl through emails, electronic records and paper records with a view to
Page 3 of 12
No header
disclosing what they hold. As explained before, to try and collate this information
would involve a manual trawl of these. As you can appreciate, the seniority of
these individuals indicates the vast amount of correspondence that they deal with
on a daily basis. To even trawl through records for one individual would exceed
the 18 hour time frame reviewing what information would fall within the scope of
your request.. For this reason, as stated before, this information is exempt under
Section 12 of the Freedom of Information Act – exemption where cost of
compliance exceeds appropriate limit. For ease of reference, the cost limit
(18hours or £450) is specified in the Freedom of Information and Data Protection
(Appropriate Limit and Fees) Regulations 2004 (SI 2004 No. 3244).
Review of Application of Section 12:
I consider that the application of this has been communicated appropriately and
in accordance with the Act. The application of a simple search would not be
possible in this circumstance because of the quantity and complexity of
communications received by these staff. Due to their seniority within the
organisation these individuals will receive a wide range of communications both
electronic and in physical form thus the review of all this correspondence held to
try and extract any relevant messages or communications would exceed the cost
threshold for handling FOI requests. As your request covers all communication
received in 2016 and up to the point of receipt of your request 19th August 2017
this will cover an extensive number of communications and thus qualify the
application of this exemption. I do note that the Council could have provided a
single refusal under Section 12 in regard to all elements of your request as the
legislation allows; however, under our duty to assist a requestor we did attempt
to provide information and further responses where such could be completed
within the cost threshold.
• Section 40 – Personal information
In our response to your request for materials related to open source research the
Council noted:
The log created for evidence gathering (see 4 above) links to an appendix with
screen shots of Social Media for use in court evidence if necessary. We don’t
consider it appropriate to disclose this to you because it contains personal
information of a third party, additionally, identifying those who have been subject
to court proceedings, which would be exempt under the Freedom of Information
Act under Section 40 – personal information. As releasing this would be in
breach of the Data Protection Act, this is an absolute exemption and we do not
need to consider the public interest in disclosing this to you.
In this respect I appreciate that such information may be publically available via
the internet; however the Council’s interest in such posts and information in itself
provides an additional quality or element to that personal data. The sheer fact
Page 4 of 12
No header
that the Council has considered it appropriate to collate such information in effect
makes it potentially more sensitive, particularly where considered it as part of
action and evidence gathering in reference to potential legal action.
I note that this exemption was also applied in reference to the redaction of the
signature of a named member of Council staff. I note this is not the subject of
your request for review. I am happy this element of the exemption was applied
correctly and requires no further review as it is clear the personal data of the
individual concerned.
• Section 42 – Legal professional privilege
In regard to point 5 of your request for copies of ‘any policy documents or
guidance issued to staff regarding viewing STAG & protesters’ social media
postings for the purpose of gathering evidence’ the following response was
provided together with a copy of the references evidence gathering protocol:
An evidence gathering protocol was drafted as part of the preparation for court –
please see attached. Any other material is legally privileged, which means it is
therefore exempt under Section 42 of the Freedom of information Act. Section
42 is a qualified exemption which means that we need to consider the public
interest in disclosing the information.
The protocol was provided in response to this element of your request as it was
considered appropriate for disclosure, would meet the terms of your request and
aid your understanding on the use of evidence gathering in regard to this matter.
The application of Section 42 appears appropriate in terms of any wider
communication produced by or instructed to our legal term in respect to such
matters. The free and frank provision of legal advice has to be available to public
authorities without the potential of chilling effects on free and frank provision if
FOI disclosures of such materials were made. As per the initial refusal it is
possible that further information held could be considered subject to your request
but meets the terms of this exemption.
Application of the Public Interest Test
Under the Freedom of Information Act 2000, there are two types of exemption,
“Qualified Exemptions” and “Absolute Exemptions”. When applying an exemption
to information that is requested, if the exemption is a “Qualified Exemption”, then
we are required to carry out a Public Interest Test. If any exemption applies
which is “Absolute”, there is no requirement for us to carry out a Public Interest
Test.
In relation to your request, Section 42 is a qualified exemption and therefore, we
are required to carry out a Public Interest Test in regard to material captured by
this exemption.
Page 5 of 12
No header
In relation to the application of Section 12 and 40 these exemptions are absolute
exemptions and therefore do not require the consideration of a further Public
Interest Test in their application.
Review of the Public Interest Test
Within our refusal notice we confirmed the application of the Public Interest test
in respect to Section 42, the points considered and the result of the test, in this
case to uphold the exemption. Upon review the public interest test was applied
correctly and reviewed the priorities for disclosure on both sides.
There is always a strong public interest for the Council, wherever possible and
lawful, to disclose the information it holds to demonstrate openness,
transparency and accountability and disclosure would demonstrate the rationale
and serious consideration that the Council have given to this issue. However,
the clear public interest in a public authority being able to take confidential legal
and litigation advice is a fundamental necessity in a democratic society and this
clearly outweighs the public interest in disclosure. More so where a case is
contentious, as this one has been.
Response to further comments in your request for review
Within your request for review you noted some specific concerns, I have provided
a response to the concerns raised where applicable below:
My original questions are included in the letter; with notes added for the
purpose of the review request.
1. The number of staff whose role includes monitoring and viewing STAG
& protesters’ social media postings for the purpose of gathering evidence.
RESPONSE: No member of staff has this as a formal role, it is a task
identified as necessary pursuant to the court orders. Street force & legal
department staff will carry out this task as and when required.
NOTE: Sheffield Council has not
complied with Section 1 of the Freedom of Information Act 2000 to confirm
or deny if information is held.
The request did not ask about “this as a formal role” rather “whose role
includes”.
I appreciate the comments noted above and the failure under Section 1(1)(a) to
explicitly confirm if recorded information is held in regard to this element of your
request. It is a challenge at time to reflect on the requirement to confirm or deny
Page 6 of 12
No header
the holding of information and the balancing of the Section 16 duty to assist a
requestor when dealing with such requests; particularly when attempting to
provide a response which is clear and not overly legalistic. In this particular case
I do note that in respect to the specific request you made and the Section 1(1)(a)
requirement the response should have read:
‘Sheffield City Council does not hold recorded information relevant this this
element of your request. As no member of staff has this as a formal role it does
not appear in a set job description or person specification. Under our duty to
assist a requestor we can note that it is a task identified as necessary pursuant to
the court orders and would be subject to all staff’s requirement to complete ad
hoc tasks where required. For information Street Force and legal department
staff will carry out this task as and when required.
3. The start of the record collection exercise to monitor and view STAG &
protesters’ social media postings for the purpose of gathering evidence.
RESPONSE: The necessity to undertake this activity has been identified
and it will take place on an ad hoc basis when deemed necessary.
NOTE: Sheffield Council has not complied with Section 1 of the Freedom
of Information Act 2000 to confirm or deny if information is held. The
request did not ask about “the purpose” nor “the necessity”, rather “The
start of the record collection”.
Ad hoc monitoring is a type of sampling, such like quota monitoring or
continuous monitoring. They all have a start time. I.E the time before there
was no monitoring, in this case before ad-hoc monitoring.
The request for information was not about how the monitoring is
conducted, but when it started.
As above the review confirms that the Council has failed to specifically confirm if
such records are held. In this regard the Council does not hold a specific single
record of when such activity was instigated. I.e. there is no single document
charting all such activity or a physical record noting the instigation of such
activity. Thus the Council’s initial response provided.
4. The number of records retained by SCC from STAG & protesters’ social
media postings. Both collected in the gathering evidence exercise and any
other monitoring exercise.
RESPONSE: In the run up to the court hearings 58 records were logged.
Since the injunctions were granted no formal logging has been judged
necessary. Ad hoc checks of social media have taken place as was
indicated in the communication to protesters. The injunctions clearly
Page 7 of 12
No header
prohibit Social Media activity which would encourage protests which
prevent the construction of safety zones.
NOTE: In response to question one Sheffield City Council States “it is a
task identified as necessary pursuant to the court orders.”, however in this
response Sheffield City Council states “: In the run up to the court
hearings 58 records were logged.”.
In response to question 1 Sheffield City Council States monitoring takes
place by “Street force & legal department staff” Surely there is approval,
moderation, filtering of data before been logged and submitted for the
court hearings.
As such, what about the records not used for the court hearing. Are the
records retained that were not used for court hearings, but have been
reviewed? How many records does the council retain not used in court
hearings, collected under this ad hoc monitoring exercise and similar
monitoring exercise.
Records may have been captured that are not a result of “formal logging”.
Example. On 13th of September, the Star published 3 photographs, that
had been supplied to the Sheffield City Council Press Office by Amey.
These photos were posted to a public group subject to “Ad hoc checks of
social media”. The time between photos been published by the Star and
time they were posted by the author was less than 5 hours.
The Council has confirmed details of the accessible records held and the
statistical output in terms of the 58 logged records held in the run up to the Court
hearing. Any wider records either reviewed and deemed unnecessary of
immaterial to the court process; or collated prior to this process would not be
recorded and or retained in a manner to provide a response to your request. The
Council should have at this point highlighted this fact and that wider details would
be held, and indicated that there is no central recording of all such activity in this
regard infinitum and as a result the collation of all such records held to collate the
number of records would exceed the cost threshold for dealing with FOI under
Section12 of the Act. Therefore this would be exempt from disclosure when
reviewed in accordance with the Council’s response to part 6 of your request.
6. Could you please ask the Councillor Bryan Lodge, Paul Billington from
the Management Team and Steve Eccleston Assistant Director from
Legal Service to identify public records they hold or have been sent, cc'd
on that contains Information sourced from Open Source Intelligence from
the Facebook Platform from 2016-present. Or if they know members of
staff who will hold records relevant to this FOI request. For open source
public records which are found please disclose.
Page 8 of 12
No header
In a previous request you couldn't fulfill a similar search of records for as
there are around 140 staff would be subject to the request and any
attempt to collate this information would involve a manual trawl exceeding
the cost limi. The request has been amended to three named individuals
and staff identified by those three, one of which has penned a letter stating
activities pursuant to this FOI are taking place.
RESPONSE: While a literal response to your question could be framed as
“yes we have asked them”. We recognise our obligation under Section 16
of the Freedom of Information Act to assist people making requests and
have interpreted your question as being a request that Steve Eccelston,
Paul Billington, Councillor Lodge trawl through emails, electronic records
and paper records with a view to disclosing what they hold. As explained
before, to try and collate this information would involve a manual trawl of
these. As you can appreciate, the seniority of these individuals indicates
the vast amount of correspondence that they deal with on a daily basis.
To even trawl through records for one individual would exceed the 18 hour
time frame reviewing what information would fall within the scope of your
request.. For this reason, as stated before, this information is exempt
under [2]Section
12 of the Freedom of Information Act – exemption where cost of
compliance exceeds appropriate limit. For ease of reference, the cost limit
(18hours or £450) is specified in the Freedom of Information and Data
Protection (Appropriate Limit and Fees) Regulations 2004 (SI 2004 No.
3244).
NOTE: Sheffield Council has not complied with Section 1 of the Freedom
of Information Act 2000 to confirm or deny if information is held.
I am not asking “Steve Eccelston, Paul Billington, Councillor Lodge trawl
through emails, electronic records and paper records with a view to
disclosing what they hold.” As noted in Sheffield City Council’s Standard
operating procedure for handling FOI requests:
“The Service Contacts are the main point of contact within their Service
and they are required to search or coordinate the search for the requested
information held within their Service.”
The usage of the word trawl infers some onerous burden. The answer to
the request omitted by Sheffield City Council to Question 3 would narrow
the time span considerably. Further more, the standard electronic means
of communication which would provide this form of audit log details
enabling retrievable of requested information.
Page 9 of 12
No header
Using parameters known about records also would narrow this further the
file type would be an image attachment, as highlighted in 07 November
2016 09:52 ‘Questions at Council’ email where those above were sent a
screen shot / screen grab.
Also as a result of your response that: -
“As you can appreciate, the seniority of these individuals indicates the vast
amount of correspondence that they deal with on a daily basis. To even
trawl through records for one individual would exceed the 18 hour”
Sheffield City Council has entered a zone were information retained by
members of staff is put out of reach for Freedom Of Information Requests
based solely on their position. I will refer this issue to the Information
Commissioners Office for their consideration if it is resolved adequately in
the internal review. This has a chilling effect on information disclosure.
You additionally noted the following in a later piece of correspondence with the
Council in regard to this request and the Council’s response to point 6 of your
initial request:
If Sheffield City Council wishes to engage and uphold exemptions for the
information about Question 6, can I please direct Sheffield City Council to
the notes The Information Commissioner made in the decision against
Sheffield City Council in FS50637180:
Other Matters:
40. The section 46 code of practice provides guidance on effective record
management policies and why this is of benefit for both public authorities
and requesters alike. The following extract comes from paragraph 9.3 and
deals with what record systems should be held:
“9.3 Records systems should be designed to meet the authority’s
operational needs and using them should be an integral part of business
operations and processes. Records systems should have the following
characteristics:
a) They should be easy to understand and use so as to reduce the effort
required of those who create and use the records within them. Ease of use
is an important consideration when developing or selecting a system;
b) They should enable quick and easy retrieval of information. With digital
systems this should include the capacity to search for information
requested under the Act;
Page 10 of 12
No header
h) They should enable an audit trail to be produced of occasions on which
selected records have been seen, used, amended and deleted."
I note the scepticism of The Information Commissioner regarding the
timelines presented by Sheffield City Council regarding how long it takes
to review records. See references 32, 33, any denial regarding estimates
of time will be immediately sent to The Information Commissioner for
review.
Thank you for your considered thoughts and arguments in regard to the handling
of this element of your request. I appreciate that you have concerns in regard to
the Council’s handling of this element of your request and your worries around
the chilling effect on the handling of FOI requests where senior staff hold
information and the related records management concerns.
As per the previous response I agree that the Council did not state specifically
that we do hold information in this regard but it would appear that this was implicit
in the application of the exemption. I appreciate that this should have been
communicated explicitly in our initial response and I apologise on behalf of the
Council that this did not occur on this and the previous occasion.
As detailed in my review of the application of Section 12 above I do consider that
this has been applied appropriately in regard to this element of your request. You
highlight that the request could be time limited to the instigation of open source
activity however as cited above we do not hold records specifically in this regard
and therefore would have to divert to your initial timescale of 2016 up to the point
of your request on the 19th August 2017. Even a review of image attachment to
records would not a simple and quick filter as they may be captured and
recorded in a range of formats depend on the member of staff involved. Further a
full response would also require a review of hard copy records held to ensure
that any relevant materials are located and considered for disclosure. There also
does appear to be an extension of this request to information held by “
know
members of staff who will hold records relevant to this FOI request” this extends
the request to the mailboxes and information retained by staff potentially
identified in any collated information to review wider potential records. This
extension would further evidence the quantity of material that would have to be
filtered and reviewed to collate all relevant records.
At this point I would further highlight that were the Council to not be relying upon
Section 12 of the Act we would then have to consider the application of Section
40(2) as being relevant to the handling of your request. Although as you note the
records will be open source, this does not remove their quality as personal data
once considered appropriate for review and onward transmission within the
Council. As social media posts are related to individuals then such records are
likely to be considered personal data under the definition of the Data Protection
Act 1998 particularly when this information is used for preparation of the legal
Page 11 of 12
No header
action or the monitoring of behaviour and comments related to activity by the
Council or its contractors in the management of highway trees. Although the
posts may have been made publically by the individuals concerns the linkage to
the Council and review by the Council does in itself expand the application of this
information. A disclosure under FOI is therefore likely to lead to a breach of the
Data Protection Act 1998 in respect to Principle 1 and the requirement to process
information both fairly and lawfully.
As per your notification it is of course your right to raise these issues with the
Information Commissioner’s Office if you are unhappy with the way the Council
has considered your request for internal review.
Review Decision - Conclusion
Taking the above into account, I am satisfied that the following exemptions apply
to the information that you have requested and were appropriately used:
• Section 42 – Legal professional privilege
• Section 40 – Personal information
• Section 12 - Exemption where cost of compliance exceeds appropriate
limit
As noted in the above response the Council has failed to comply with Section
1(1)(a) of the Freedom of Information Act 2000 in terms of confirming whether
relevant information was held and therefore .
I realise this is not the decision that you would wish, but I hope you can
understand why I have upheld the original refusal to provide you with the details
you have requested.
If you are dissatisfied with the outcome of your internal review, you are entitled to
contact the Information Commissioner’s Office and they will consider whether
your complaint is eligible for further review. The Information Commissioner’s
details and guidance is available on the website at
www.ico.org.uk. Kind regards
Mark
Mark Knight
Information Management Officer
Information Management
Business Change & Information Solutions (BCIS)
Sheffield City Council
PO Box 1283 Sheffield S1 1UJ
www.sheffield.gov.uk
Page 12 of 12