Dear Leeds City Council,

According to the Chief Social Worker for Children and Families here https://twitter.com/IsabelleTrowler/stat... you have detailed plans of how you would work differently if clauses 29-33 of the Children and Social Work Bill became law and allowed you to do so. Please disclose your detailed plans.

Yours faithfully,

Allan Norman

DPFOI, Leeds City Council

Dear Allan Norman

Freedom of information request Ref 17390 : Children and Social Work Bill plans

Thank you for your request for the above information which we received 30, September 2016. We will respond to your request in accordance with the Freedom of Information Act 2000, or the Environmental Information Regulations 2004.

We have passed your request onto Nicola Palmer, Information Access Manager, Children’s Services, [email address] who will arrange a response within the appropriate statutory time limit.

Please remember to quote reference number FOI 17390 in any future communications.

Yours sincerely

Kristin Lea
Information Governance Support Officer
Corporate Information Governance
Business Improvement (incorporating Corporate and Central IM&T)
Strategy and Improvement
t: 0113 3784420
e: [Leeds City Council request email]
e: [email address]
w: www.leeds.gov.uk

“Information is everyone’s business and responsibility.”

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Dear DPFOI,

A reminder of the law on replying promptly, as per the ICO at https://ico.org.uk/media/for-organisatio...

"21. The obligation to respond promptly means that an authority should comply with a request as soon as is reasonably practicable.

22. Whilst this is linked to the obligation to respond within 20 working days, it should be treated as a separate requirement.

23. An authority will therefore need to both respond promptly and within 20 working days in order to comply with section 10(1).

24. Authorities should regard the 20 working day limit as a ‘long stop’, in other words the latest possible date on which they may issue a response.

25. It also follows that an authority which provides its response close to, or on, the final day of the 20 working day limit ought to be able to both account for, and justify, the length of time taken to comply with the request."

You will be very aware that this is an issue of current significance. If you intend to delay until close to, or on the final day, I additionally require you to account for and justify the length of time taken.

Yours sincerely,

Allan Norman

Yours sincerely,

Allan Norman

Children's FOI, Leeds City Council

Dear Allan Norman

 

I refer to the above and your request dated 30, September 2016. I have
contacted the relevant services and now provide a response to the
following request regarding Children and Social Work Bill plans.

 

According to the Chief Social Worker for Children and Families here
[1]https://twitter.com/IsabelleTrowler/stat... you have
detailed plans of how you would work differently if clauses 29-33 of the
Children and Social Work Bill became law and allowed you to do so. Please
disclose your detailed plans.

Unfortunately I am unable to respond to this part of your request as it
required us to consider the application of a qualified exemption. The
exemption which has been considered is that which is set out under Section
43 (2) of the Freedom of Information Act 2000. This covers information
which would or would be likely to prejudice the commercial interests of
any person (including corporate bodies).  As this is a qualified
exemption, it was necessary for us to hold a public interest test in order
to consider the application of the exemption.

 

Your request was considered and the application of the above exemption.
 Leeds Children’s Services view clauses 29-33 of the Children and Social
Work Bill positively and the detailed information requested form part of
an Innovation Bid that has not yet been approved.  This current financial
information is, therefore commercially sensitive. Should this information
be disclosed into the public domain (disclosure under the Act is regarded
as to the general public rather than just the applicant) it would give
competitors an advantage in knowing various current charges and costs. We
have decided that to disclose this information would prejudice our
commercial interests and therefore we have decided to withhold this
information in full.

 

However, you may be interested to read this recently-published article,
which outlines an example of the kind of area where Leeds City Council
could work differently:
[2]http://www.communitycare.co.uk/2016/10/1...

 

I trust that this response is satisfactory. If however you are
dissatisfied with this response you have a right to appeal to an
independent officer within Children’s Services. They will re-examine your
request and assess whether we have adhered to the requirements of the act.
Should you wish to follow this course of action please address your
concerns in writing to Moin Patel, Children’s Services, Information
Governance Team, PO Box 837, Leeds, LS1 9PZ or by emailing
[3][email address].

 

You also have a right under Section 50 of the Freedom of Information Act
to ask the Information Commissioner to decide whether we have met with our
obligations under the act.  The Commissioner has however made it clear
that he expects all applicants to exhaust internal appeals procedures
prior to making such an application. Should you wish to contact the
Commissioner’s office then you can write to the following address:

 

            Office of the Information Commissioner,

            Wycliffe House,

            Water Lane,

            Wilmslow,

            Cheshire,

            SK9 5AF.

 

You may also contact the Commissioner via his website at [4]www.ico.gov.uk

 

I trust that this is self-explanatory.  If you have any queries please
contact me on 0113 3784251, or by return email.

 

Kind regards

 

James Bentley

Information Access Officer

Children’s Services

Leeds City Council

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Leeds City Council - MJ Local Authority of the Year 2016

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References

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1. https://twitter.com/IsabelleTrowler/stat...
2. http://www.communitycare.co.uk/2016/10/1...
3. mailto:[email address]
4. blocked::UrlBlockedError.aspx UrlBlockedError.aspx www.ico.gov.uk
file:///tmp/UrlBlockedError.aspx
5. http://www.leeds.gov.uk/carriageworks/Pa...

Moin Patel
Children’s Services
Information Governance Team
PO Box 837
Leeds
LS1 9PZ 30th October 2016

Dear Moin Patel -

There is a printable pdf version of my FOI review request here: http://www.celticknot.org.uk/view/FOIint....

I am writing further to the communication dated 28th of October 2016, responding to my Freedom of Information request. Your decision is to refuse to provide the information requested, on the basis that it is exempt under section 43(2) of the Freedom of Information Act 2000.

I am writing to request a review of this decision, which I note your communication describes as an appeal. My reasons are set out below, and I would be grateful if your response and your review would address itself to them.

1. The right information?

The thrust of your decision is that the information is commercially sensitive, and specifically "it would give competitors an advantage in knowing various current charges and costs".

I should like to point out that my request did not ask for any information regarding current charges and costs. I referred to an online exchange involving the Chief Social Worker, in which she was asked "what would we do differently" if clauses 29 to 33 of the Children and Social Work Bill permitted; she responded that you "have detailed plans of how [you] would work differently". My Freedom of Information request carefully mirrored that language, requesting details of how you would work differently; so far as I can tell, this is not a request for any costing information.

If the information requested exists only in combination with costing information, I invite you to redact the costing information, and provide the requested information. You can comply with my request fully without providing costing information.

2. The Bill is still a Bill

I was (and others were - as you rightly observed, your response is in the public domain) startled that your response appears to rely upon a bid that you have already submitted. I say this because of your use of the phrase, "Bid that has not yet been approved".

My request concerned detailed plans for what you would do, subject to future changes in the law, which may or may not materialise. In making this request, I accept that it may be legitimate to plan and prepare in anticipation of changes in the law. But I was startled that you might already have submitted a costed bid to fund such proposals, since by their nature they must be contingent, and not yet lawful.

This is another reason why I wonder whether you have correctly interpreted my request. Please can you confirm that you have indeed already submitted a costed bid for funding for contingent and currently unlawful proposals?

3. The application of the prejudice test

Your decision correctly identifies that section 43(2) involves the application of the prejudice test. There is guidance issued by the Information Commissioner's Office to Organisations on applying this test here: https://ico.org.uk/media/for-organisatio.... I invite you to refer to the Commissioners guidance in formulating your response.

The prejudice test is a staged test. The guidance explains the stages in the following terms:

The test of prejudice involves several steps:
* Identify the applicable interests within the relevant exemption
* Identify the nature of the prejudice. This means that the public authority must:
o Show that the prejudice claimed is real, actual or of substance; and
o Show that there is a causal link between the disclosure and the prejudice claimed.
* Decide on the likelihood of the prejudice occurring. This means deciding whether the prejudice would or would be likely to occur.
o ‘Would’ and ‘would be likely’ imply different levels of likelihood.
o Where a public authority has not specified the level of likelihood, and in the absence of clear evidence to the contrary, the Commissioner will consider that ‘would be likely’ applies.

With respect, your decision asserts that you "would" rather than "would be likely to" suffer prejudice. You are supposed to give reasons for your decision on the application of the prejudice test (Hogan v Information Commissioner [2006] UKIT EA_2005_0030 (17 October 2006) at paragraphs 22 and 24). Where you assert that you "would" suffer prejudice, then this needs "clear evidence" (see above), or as the Hogan decision says, there is "a much stronger evidential burden on the public authority to discharge".

So far as I am able to detect, your decision treats the assertion of a commercial interest as sufficient in itself to meet the prejudice test. I am unable to detect why there is real prejudice; why you believe that meeting my request would cause that prejudice to arise; or what is the clear evidence that means that it is more likely to arise than not. I remind you again that your decision is based upon the presence within the information requested of costing information that was not requested.

Please properly address yourself to the prejudice test, in order to comply with section 17 of the Act.

4. The application of the public interest test

Your decision correctly identifies that the exemption you rely upon is a qualified rather than an absolute exemption. Hence, it correctly notes that even where the exemption is possibly engaged, it is necessary to apply the public interest test (or as your decision puts it "hold a public interest test") before withholding the information.

Despite referring to a public interest test, I respectfully point out that you have not actually conducted one – or at least, if you have, there is no indication that you have done so within your decision. Rather, you treat the existence of the possible exemption as determinative that the information should be withheld. The Freedom of Information Act simply does not work this way.

The Information Commissioner's Office has detailed guidance on the application of the public interest test, which you can access here: https://ico.org.uk/media/for-organisatio.... I invite you to refer to the Commissioners guidance in formulating your response.

In simple terms, the application of the public interest test requires a balance sheet approach, weighing up on the one hand the public interest against disclosure; and on the other hand the public interest in favour of the disclosure. Moreover, the former is narrowly defined and must relate to the specific exemption relied upon, while the latter is widely defined, as explained in the Hogan case already referred to:

“While the public interest considerations against disclosure are narrowly conceived, the public interest considerations in favour of disclosure are broad-ranging and operate at different levels of abstraction from the subject matter of the exemption.”

The same case emphasises the need for the public interest test not just to apply broad brush principles, but to consider the interest in the specific information that is the subject of the request.

My request specifically references clauses 29 to 33 of the Children and Social Work Bill. Your response asserts that "Leeds Children’s Services view clauses 29-33 of the Children and Social Work Bill positively". I draw to your attention (in case you were not already aware of this) that in the period between my Freedom of Information request and your response, more than 100,000 members of the public signed a petition opposed to the clauses that you view positively. You can view that petition online here: https://you.38degrees.org.uk/petitions/p....

I here reproduced below the exact words of the petition signed by 100,000 members of the public, because they go to the heart of the arguments about why there is a public interest in disclosure of the requested information. It reads:

"Parts of the Children and Social Work Bill allow councils in England to be excused from their legal duties to provide for and protect vulnerable children and young people for up to six years. These protections have built up over 80 years and include many key laws passed by Parliament. They give vital rights to children living in their own families, including disabled children; children living in foster care, children’s homes, residential schools and custody; and young people leaving care.

The Government says this will encourage innovation, but we fear the loss of essential services and support for children and care leavers by cash-strapped councils.

There has been no public consultation and no evidence produced by the Government to support its plan to offer up for abolition every legal duty made for vulnerable children and care leavers since 1933."

Therefore, the clauses that you view positively are concerning the wider public because of the risks to fundamental rights and essential services; and because of the absence of public consultation and an evidence base for them.

I respectfully submit that a proper application of the public interest test requires you to weigh up on one side of the balance sheet your commercial interest in your bid to the Innovation Fund; but on the other side of the balance sheet the interest in transparency in relation to fundamental rights and essential services, and the evidence base for the clauses you view positively.

As the Information Commissioner's guidance makes clear, certain considerations will always need to be considered as part of the balancing exercise it in favour of disclosure:

"29. There is a general public interest in promoting transparency, accountability, public understanding and involvement in the democratic process. FOIA is a means of helping to meet that public interest, so it must always be given some weight in the public interest test.

Public interest in the issue

30. As well as the general public interest in transparency, which is always an argument for disclosure, there may also be a legitimate public interest in the subject the information relates to. If a particular policy decision has a widespread or significant impact on the public... there is a public interest in furthering debate on the issue. So, this can represent an additional public interest argument for disclosure.

5. Delay

Finally, in a supplementary request dated 18th October, I said,

"an authority which provides its response close to, or on, the final day of the 20 working day limit ought to be able to both account for, and justify, the length of time taken to comply with the request."
You will be very aware that this is an issue of current significance. If you intend to delay until close to, or on the final day, I additionally require you to account for and justify the length of time taken.

You chose to reply one working day before the limit. I remind you that my request to you to account for and justify the length of time taken is outstanding.

Yours sincerely

Allan Norman

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

DPFOI, Leeds City Council

Dear Allan Norman

Freedom of Information Review (Ref: 17390) Children and Social Work Bill plans

I refer to the above and your request for an internal review has been passed to the relevant section for investigation. We will deal with your complaint under stage two of Leeds City Council’s Compliments and Complaints Policy.

The issues you have raised will be dealt with by an investigating officer in order for them to review your case and carry out a full investigation. They will contact you within 20 working days to report on their findings.

If you have any further issues or concerns that might impact on the review please contact myself on 0113 2243615,.

Yours sincerely

Kristin Lea
Information Governance Support Officer
Corporate Information Governance
Business Improvement (incorporating Corporate and Central IM&T)
Strategy and Improvement
t: 0113 3784420
e: [Leeds City Council request email]
e: [email address]
w: www.leeds.gov.uk

“Information is everyone’s business and responsibility.”

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Children's FOI, Leeds City Council

Dear Mr Norman,

 

Thank you for your email. This has been passed onto the appeals team and
we will get back to you as soon as possible.

 

Kind regards,

 

Olivia Knight

Senior Information Governance Officer

Information Management and Technology

Children’s Services

Leeds City Council

 

0113 37 84259

 

From: DPFOI
Sent: 01 November 2016 10:32
To: Children's FOI
Subject: New FOI Request 17390 - Request for an Internal Review

 

 

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Children's FOI, Leeds City Council

Dear Mr Norman

 

I refer to the above and your email dated 30 October. I am sorry you were
not satisfied with our response dated 28 October. I have reviewed our
original response and now provide the following in relation to your
request for the Council to re-consider our decision to withhold
information under section 43 of FOIA.

 

Your original request was for ‘the council to supply detailed plans of how
you would work differently if clauses 29-33 of the Children and Social
Work Bill became law and allowed you to do so, as per the Chief Social
Worker for Children and Families tweet
[1]https://twitter.com/IsabelleTrowler/stat...

 

The decision to apply section 43(2) was not taken lightly and consultation
was had with senior management within children’s services in accordance
with our duty to assess the public interest. Our reliance on the exemption
was based on the prospect that other authorities might be able to improve
their own submission to the DfE for funding, or to pre-empt our proposal
in some way. This could then mean that the Council’s “financial” interests
would be prejudiced and therefore disclosure would be detrimental to the
Authority.

 

In assessing your request I have considered recent ICO guidance and
decisions, and also tribunal decisions in relation to the application of
section 43. In particular I have looked at a recent case involving the
DWP. In this case, the first tier tribunal (FTT) accepted the ICO’s
arguments that defraying welfare payments was not a commercial activity.
Therefore if disclosure of information led to some organisations who had
provided “workfare” placements withdrawing from the scheme and caused
additional public spending on benefits, that this did not engage section
43. The FTT’s conclusion on this point was not challenged in the upper
tribunal, or in the Court of Appeal. In addition, one of the Court of
Appeal judges commented that such additional costs incurred by the DWP
would not be commercial in nature “because they are incurred in the
administration of a social welfare scheme”.

 

In a similar way in this case, if disclosure of information led to our
eventual bid to the DfE for funding not succeeding, or not being as
successful as we had hoped, whilst that would undoubtedly affect our
financial interests, our arrangements for discharging our statutory duties
towards children are generally not “commercial” in nature and so the
exemption would not be engaged.

 

In this case I agree section 43 should not have been engaged and therefore
in this respect I consider your appeal to be upheld.

 

I move onto the information which is actually held by the Council. It is
incorrect to state that Leeds City Council holds “detailed plans” of how
we would work differently should clauses 29-33 of the Children and Social
Work Bill became law. A Local Authority “detailed plan” would by
definition be something which took account of consultations with
stakeholders and staff and which had been approved formally by an officer
decision or by Executive Board. I can confirm Leeds City Council does not
hold any such detailed plans which have had formal approval, nor have we
submitted any final costed bid to the DfE in relation to this matter, as
our application is still subject to discussions with the Department.

 

Finally in respect of the time taken to respond to your original request,
I am satisfied that the Council complied in accordance with the statutory
timescales of FOIA.

 

I would like to thank you for bringing this matter to my attention and I
hope this confirms our position on this matter.

 

Kind regards

 

Moin Patel

·         Information, Knowledge & Procedures Lead

·         Children's Services

 

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Leeds City Council - MJ Local Authority of the Year 2016

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References

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1. https://twitter.com/IsabelleTrowler/stat...
2. http://www.metoffice.gov.uk/learning/get...

Allan Norman left an annotation ()

Reply to appeal briefly summarised here: https://celticknotblog.wordpress.com/201...

Appeal upheld but no information provided. They now say they have none to provide, even though they previously determined that they had commercially exempt information.

Fiona Nicholson left an annotation ()

Right. So it IS commercially sensitive. Someone might pinch their idea and get the innovation grant money. And they are discussing it in-house (internal comms) and with the Department for Education.

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