Chief Officer Report (Employment and Appointments Committee 5th March 2019)

The request was refused by Wirral Metropolitan Borough Council.

Dear Wirral Metropolitan Borough Council,

I would like to make a freedom of information request for pages 125-142 of the Private Document Pack for Wirral Council's Employment and Appointments Committee to be held on the 5th March 2019.

I remind you of your section 16 duty to provide advice and assistance.

I would like the information to be supplied electronically if possible, but if this is not possible can provide my postal address (which you may have already).

Yours faithfully,

John Brace

InfoMgr, FinDMT, Wirral Metropolitan Borough Council

Dear Mr Brace

 

We write further to your Freedom of Information request in which you
asked:

 

"I would like to make a freedom of information request for pages 125-142
of the Private Document Pack for Wirral Council's Employment and
Appointments Committee to be held on the 5th March 2019. "

 

As you are aware, The Local Government Act 1972 (as amended) and related
Regulations establish a general principle that meetings of the Authority
and reports prepared for meetings should be open to the public, including
the press, except where confidential or relevant exempt information might
be disclosed.  To be “relevant” exempt information, it must be of a
description specified in Part 1 of Schedule 12A of the Local Government
Act 1972.  

 

In this case the information contained within the private document pack is
considered to be confidential or relevant information and therefore exempt
from disclosure under Section 43 of the Freedom of Information Act 2000
(FOIA). Section 43 is a qualified, prejudice-based exemption, subject to
the public interest test.

 

Factors in favour of disclosing the requested information

 

•            The public interest in disclosure to promote transparency and
accountability of public authorities

•            That public money is being used effectively

 

Factors in favour of withholding the requested information

 

o Inherent public interest in maintaining commercial confidences
o Disclosing the information would have an negative impact on both the
Council’s and the third party’s legitimate economic interests.
o Wider public interest in preserving the principle of confidentiality.

 

In all the circumstances, I consider that the public interest in
withholding the information outweighs the public interest in disclosing
it.

You have the right under Section 17 of the Act to ask for an internal
review in respect of this partial refusal. This should be sent to
[1][Wirral Borough Council request email].  If you were dissatisfied with the
result of your internal review, you then have the right to complain to the
Information Commissioner who can be contacted at
[2]https://ico.org.uk/global/contact-us/

 

Yours sincerely

 

 

Lynette Paterson

Principal Information Management Officer

Business Management

 

Treasury Building

Argyle Street

Birkenhead

Wirral

CH41 1AH

 

Tel: 0151 691 8201

[3][Wirral Borough Council request email]

 

 

This information supplied to you is copyrighted and continues to be
protected by the Copyright, Designs and Patents Act 1988.   You are free
to use it for your own purposes, including any non commercial research you
are doing and for the purposes of news reporting. Any other reuse, for
example commercial publication, would require our specific permission, may
involve licensing and the application of a charge

 

 

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solely for the use of the individual or entity to whom they are addressed.
If you have received this email in error please notify the system manager.

References

Visible links
1. mailto:[Wirral Borough Council request email]
2. https://ico.org.uk/global/contact-us/
3. mailto:[Wirral Borough Council request email]

ScarletPimpernel

Dear Wirral Metropolitan Borough Council,

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

I am writing to request an internal review of Wirral Metropolitan Borough Council's handling of my FOI request 'Chief Officer Report (Employment and Appointments Committee 5th March 2019)'.

Thank you for your response to my request turning it down on section 43 (commercial interests) grounds.

Firstly, some of this information is already published/disclosed on your website at https://democracy.wirral.gov.uk/document... (see pages 125-138) therefore as it has been made available to the public (before the time this request was made) it cannot be claimed that it is "commercially sensitive".

Secondly, in order to be a valid refusal under s.17 of the FOIA, s.17(1)(c) means you have to state "(if that would not otherwise be apparent) why the exemption applies".

To be clearer you haven't stated why there would be a negative impact on:

a) your own commercial interests and

b) a third party's legitimate interest.

Thirdly, in relation to the public interest test, because the decision is to be made by councillors on the Employment and Appointments Committee who are directly electable by the voters (such as myself) this is an added argument in favour of disclosure so that politicians can be held to account.

Fourthly, your constitution requires certain people to make decisions on disclosure of exempt reports if a request is made and it's unclear whether the right person at Wirral Council has made the decision.

Fifthly, I believe that even if you could legitimately argue that s.43 applies, it only applies to some of the information and not all 18 pages as there will be generic information in the report such as page numbers in the footer, the title of the report, the reasons why it is recommended as exempt, officer contact details etc etc that's not capable of being withheld on s.43 grounds.

I look forward to reading your response to my internal review request.

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,

John Brace

InfoMgr, FinDMT, Wirral Metropolitan Borough Council

Dear Mr Brace

I write in response to your email of 1 March 2019, seeking an internal
review of the Council’s response to your recent Freedom of Information
request, in which you asked:

"I would like to make a freedom of information request for pages 125-142
of the Private Document Pack for Wirral Council's Employment and
Appointments Committee to be held on the 5th March 2019. "

 

Your request was refused under S43 of the FOIA, on the basis that the
information was considered commercially sensitive and therefore exempt
under paragraphs 1 (information relating to any individual) and 3
(information relating to the financial or business affairs of any
particular person) of Part 1 of Schedule 12A of the Local Government Act
1972.

 

The LGA (as amended) and related Regulations establish a general principle
that meetings of the Authority and reports prepared for meetings should be
open to the public, including the press, except where confidential or
relevant exempt information might be disclosed. To be “relevant” exempt
information, it must be of a description specified in Part 1 of Schedule
12A of the Local Government Act 1972.

 

The process for deciding whether this applies is that the proper officer
applies the tests and does not publish, in advance of a meeting, those
papers that they consider should be exempt from public access.  If
officers conclude the report does contain confidential or relevant exempt
information such reports will be marked “Not for publication” together
with the category of information likely to be disclosed on the agenda. 
The actual decision, however, is made by the elected Members at the
meeting whether it is in the public interest to keep the information
private or release it into the public domain.

 

At the meeting on 5 March 2019 it was agreed that the exemption would be
lifted.  The documents will shortly be made available on the Council’s
website.

 

It is therefore my decision to substitute the original decision to
withhold the information under Section 43 FOIA with the exemption set out
at Section 22 of the Act, ‘information intended for future publication’.

This is a qualified, class-based exemption and subject to a public
interest test. The legislation states that a definitive date for
publication does not need to be set, but that the public body should be in
receipt of the information and have a settled intention to release it into
the public domain. The public interest arguments for disclosure are there
is a generic public interest in accountability and transparency, allowing
greater degree of scrutiny over how decisions are reached and public money
is spent. The public interest factors for withholding the information
include the drain on public resources responding to individual ad-hoc
requests when the Council has demonstrated its commitment to publication
in the near future.

I am satisfied that the exemption at Section 22 of the Act applies in this
case.

If you are dissatisfied with the outcome of this internal review, you may
complain to the Information Commissioner at 
[1]https://ico.org.uk/global/contact-us/

Yours sincerely

 

Tracy O'Hare

Information Management Officer

Business Management

Treasury Building

Argyle Street

Birkenhead
Wirral
CH41 1AH

[2]Tel:0151 691 8397

[3][Wirral Borough Council request email]

 

 

 

 

This information supplied to you is copyrighted and continues to be
protected by the Copyright, Designs and Patents Act 1988.   You are free
to use it for your own purposes, including any non commercial research you
are doing and for the purposes of news reporting. Any other reuse, for
example commercial publication, would require our specific permission, may
involve licensing and the application of a charge

 

 

 

This email and any files transmitted with it are confidential and intended
solely for the use of the individual or entity to whom they are addressed.
If you have received this email in error please notify the system manager.

References

Visible links
1. https://ico.org.uk/global/contact-us/
2. file:///tmp/tel:0151
3. mailto:[Wirral Borough Council request email]

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