Dear Wirral Council,

https://wirral.moderngov.co.uk/documents...
Following the 20 month Birkenhead Market investigation the Council stated…
“The outcome of the investigation in relation to the overall allegation of Misconduct in Public Office is that the Authority does not believe it has any further action to take in relation to this matter. It is our view that the findings do not warrant the council making a referral for further investigation by the Police.”

To gain a comprehensive understanding of the investigation and the rationale behind the Council's belief that the findings do not necessitate a referral for further investigation by the Police, I would like to request the following, please.

1. Copies of notes and recordings from the investigation interviews.
2. Copies of the information reviewed as part of the investigation.
3. Copies of all information produced during the course of the investigation.
4. Copies of the draft versions of the Investigation Report.
5. Copies of all email, text, or WhatsApp correspondence pertaining to the investigation and the subsequent drafting of the draft and final Investigation Report.
6. Copies of all email, text, or WhatsApp correspondence related to the decision to refrain from referring matters to the Police.

It would be extremely helpful for the Council to refrain from redacting the following names please.
Paul Satoor
Jill Travers
Matthew Bennett
Mark Niblock
Iain Miles
Luan Quirk
Vicky Shaw
Cllr Tony Jones
Cllr Helen Williams
Alan Evans
David Hughes
Marcus Shaw
Mathew Neal
Robert Langer
Allan Hartwell
Rob Nixon
Mr Ives
Market Place Ltd
Corstorphine & Wright
R3
David McGowan
Ray Squire
David Marsh
Andrew Kehoe
Cllr Paul Stuart
Jeff Green
Phil Gilchrist
Jo Bird
Pat Clearly

Yours faithfully,

Erebus Smith AKA Alan Featherstone

Dear Irene Okoro,

Thank you for your “holding email” regarding my request. Upon careful review, it is evident that the Council’s response does not comply with the requirements of the Freedom of Information Act. The Act does not permit any Local Authority to extend the initial twenty-day response period for the purpose of “seeking legal advice”.

Consequently, I am formally requesting an internal review that takes into account the entire contents of this email.

The Information Commissioner recently issued Wirral Council with Decision Notices IC-327728-W8L8 stating.
“The Council’s handling of this request, which involved delayed and unclear responses, raises concerns that it might not understand its obligations under the FOIA or take them sufficiently seriously. The Commissioner is also concerned that the Council might not have provided staff with sufficient training in the handling of requests.”
“The Commissioner expects the Council to take note of the above and to ensure future requests are handled appropriately.”

The Council are not handling this information request appropriately.
Sending a “holding email”, which delays the information response while the Council "seeks legal advice," clearly demonstrates that the Council is not taking its obligations seriously or is fundamentally misunderstanding its responsibilities under the FOIA.
Therefore, I kindly ask that this entire correspondence be forwarded immediately to the Information Commissioner’s Office, along with a request for their guidance and assistance to ensure that Wirral Council fulfills its obligations under the Freedom of Information Act..

Decision Notices IC-327728-W8L8. (including any steps ordered)
1. The complainant requested consultation documents relating to the
proposed Argos market in Birkenhead. Wirral Metropolitan Borough
Council (the “Council”) confirmed that the information was not held. The
complainant disputes this.
2. The Commissioner’s decision is that, on the balance of probabilities, the
Council did not hold the information at the time of the request and
complied with section 1(1) but that in failing to confirm this in time it
breached section 10(1).
3. The Commissioner does not require further steps.

Request and response
4. On 20 December 2023, the complainant wrote to the Council and
requested the following information:
“Please supply me with all community consultation documents council
officers or outside consultants have produced relating to the proposed
Argos market in Birkenhead town centre.”
5. The Council provided a response on 6 March 2024. This response did not
confirm or deny whether the information was held.
6. The Council provided a further response on 4 August 2024. This did not
confirm or deny whether the specific information requested was held.
7. On 26 September 2024 the Council disclosed information with some
redactions for personal information under section 40(2).

Scope of the case
8. On 20 August 2024 the complainant contacted the Commissioner on to
complain about the way their request for information had been handled.
9. The Commissioner considers that the scope of his investigation is to
determine whether the Council has disclosed all the information that was
held at the time of the request.

Reasons for decision
Section 1 – duty to provide information held
10. Under section 1(1) of the FOIA authorities have a duty to confirm or
deny whether information identified in a request is held and, where it is,
to provide it to a requester.
11. In this case the Council disclosed information to the complainant relating
to the subject of their request but confirmed that it did not specifically
hold community consultation documents. The complainant disputes this.
12. Where there is some dispute between the amount of information located
by a public authority and the amount of information that a complainant
believes may be held, the Commissioner, following the lead of a number
of First-tier Tribunal (Information Rights) decisions, applies the civil
standard of “the balance of probabilities” when deciding whether there is
any further information held by the public authority.
13. This means that in order to determine such complaints, the
Commissioner must decide whether it is more likely than not that the
public authority holds any information which falls within the scope of the
request (or held it at the time of the request).
14. In reaching a decision in such cases the Commissioner considers the
evidence provided by both parties.
The complainant’s position
15. The complainant has argued that the Council has a general tendency to
provide irrelevant and ambiguous information in response to Freedom of
Information requests as a means of sidestepping critical issues. In this
instance, the complainant considers that the Council is attempting to
avoid the implication of “no information is held,” which would indicate a
failure to conduct the statutorily mandated consultation with
stakeholders.
16. The complainant has also highlighted the Council’s internal review
response of 14 March 2024 which states:
“…consultation was undertaken with the Birkenhead Market
Traders Association (BMTA) in advance of ERH Committee on 6th
December 2023. Noting feedback from the BMTA, officers made
recommendations to the committee that reflected the feedback of
traders. Wider consultation has been undertaken with existing market
traders as part of next steps and a wider public consultation is due to be
undertaken in April 2024 in relation to what people would like to see in a
new market offer to inform finalisation of the design.”
17. The complainant considers that, given that consultation took place in
advance of 6 December 2023, associated records of this should be held
by the Council.

The Council’s position
18. The Council has explicitly confirmed to the Commissioner that it did not
hold any "community consultation documents" at the time of the original
request in December 2023.
19. In relation to the above cited comments in its internal review, the
Council has stated to the Commissioner that:
“this response was provided by the service responsible for the Market,
and there were inaccuracies made by them when they used the term
'consultation'. There were discussions held with market traders on an
informal basis prior to December 2023, but there was no formal
community/public consultation involving the public. The
community/public consultation took place in September 2024, and the
results of it will be put into final report and published.”

The Commissioner’s conclusions
20. The Commissioner is mindful that the complainant has broader concerns
about the Council’s handling of the proposed Argos market. It is not the
Commissioner’s role to comment on the Council’s broader governance
practice, however, the Council’s responses to the request lack clarity
and he can appreciate why the complainant might consider them to be
obfuscatory.
21. He notes that some of the associated information disclosed by the
Council, in addition to not being what was specifically requested, also
post-dates the time of the request. This is not, though, technically a
breach of the legislation.
22. However, having spent some time pressing the Council on this matter,
the Commissioner is satisfied that, on the balance of probabilities, it
correctly confirmed that it did not hold the requested information at the
time of the request.
23. As such, the Commissioner has decided that the Council complied with
section 1(1) of the FOIA

Section 10 – time for compliance
24. Section 10(1) of the FOIA requires authorities to comply with section
1(1) promptly and not later than the twentieth working day following the
date of receipt.
25. In this case the Commissioner finds that the Council failed to explicitly
confirm or deny whether it held the requested information until long
after the date of the request and breached section 10(1).

Other matters
26. Although they do not form part of this notice the Commissioner would
like to note the following matters of concern.
Request handling
27. The Council’s handling of this request, which involved delayed and
unclear responses, raises concerns that it might not understand its
obligations under the FOIA or take them sufficiently seriously. The
Commissioner is also concerned that the Council might not have
provided staff with sufficient training in the handling of requests.
28. The Commissioner appreciates that local authorities have limited
resources and may, on occasion, struggle to deal with the volume of
requests relating to a specific matter or a range of matters. However,
there are measures within the FOIA that authorities can, where relevant,
draw on to manage such scenarios.
29. Mishandling straightforward requests for information is likely to result in
complaints, initially to the authority and subsequently, as in this case, to
the Commissioner. In the Commissioner’s view this could easily have
been averted in this case if the Council had initially handled the request
properly.
30. The Commissioner expects the Council to take note of the above and to
ensure future requests are handled appropriately.

Erebus Smith AKA Alan Featherstone

Dear Irene Okoro,

Following advice from the Information Commissioner I am requesting that the Council identify the specific exemption it is relying on to extend the response time, as mandated under the Act.

Email from Information Commissioner
Dear Mr Featherstone

Thank you for your email.

I've had a look and it seems the Council wants to extend the time for complying with your request in order to seek legal advice.

There are certain situations in which authorities can extend the time for responding, for example, where extra time is needed to consider the public interest. In such cases the maximum time an authority should take is 40 working days.

However, when an authority advises a requester that it needs more time, it should also identify the specific exemption it is relying on. In this case the Council does not appear to have done this. This is something you may wish to write to the Council to ask it to address.

X’x xxxxxx xx xxx xxxxxx xx xxx xxxxxxxx xx xxxx xxxxxx xx xxxx xxxxx xxx xx xxx xxxxxxx xxx xxx xxxxxxxxx xx xxxxxx xxxx xxxxx xxx xx xxxx..

I hope this is helpful.

Regards,

Xxxxxxxx Xxxxxx

Dear Irene Okoro,

When an authority advises a requester that it needs more time, it should also identify the specific exemption it is relying on.
Please fulfil this requirement.

Yours sincerely,

Erebus Smith AKA Alan Featherstone

Dear Irene Okoro,

Please confirm that you have received the previous two correspondence dated 10 & 11 March and explain why the Council are knowingly breaching ICO governance.

Yours sincerely,

Erebus Smith AKA Alan Featherstone

Dear Irene Okoro,

Please confirm Wirral Council have complete the internal review that was requested 9 March .

Yours sincerely,

Erebus Smith AKA Alan Featherstone