CIPFA reports

ScarletPimpernel made this Freedom of Information request to Wirral Metropolitan Borough Council

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

The request was refused by Wirral Metropolitan Borough Council.

ScarletPimpernel

Dear Wirral Metropolitan Borough Council,

A number of payments have been made by Wirral Council to CIPFA C.CO LTD, the purpose of which are listed as "Consultants Fees" and are listed and numbered below.

1. 15/8/17 £13,860
2. 30/8/17 £5,700
3. 8/2/18 £36,000
4. 8/2/18 £24,000
5. 13/2/18 £8,400
6. 13/2/18 £12,000
7. 13/3/18 £3,600
8. 13/3/18 £27,600
9. 13/3/18 £16.800

CIPFA provide "management consultancy activities other than financial management"

Please could you provide in an electronic format any reports provided to Wirral Council by CIPFA C.CO LTD that the above payments listed 1-9 relate to.

I remind you of your s.16 duty to provide advice and assistance to those making FOI requests.

Thank you.

Yours faithfully,

John Brace

ScarletPimpernel

Dear Wirral Metropolitan Borough Council,

Apologies but there is a typo in the last payment (9) which should read "£16,800" not "£16.800".

Please could this FOI request be expanded to include a new second part, the second part being the titles of the reports referred to in the original request.

Thank you,

Yours faithfully,

John Brace

ScarletPimpernel

Dear Wirral Metropolitan Borough Council,

The following two payments to CIPFA C.CO LTD were unfortunately left off the original request. Please could you add these to this FOI request and the request reworded to cover titles of reports and reports relating to payments 1-11.

10. 5/10/17 £2,520
11. 15/9/17 £21,420

Thanks,

Yours faithfully,

John Brace

InfoMgr, FinDMT, Wirral Metropolitan Borough Council

Dear Mr J Brace

 

We write in relation to your recent request made under the Freedom of
Information Act,

 

Please do accept our sincere apologies, we can confirm that your enquiry
is in progress however in accordance with S45 (2) of the code of practice
FOIA 2000 the Council needs to consult with a third party and we request
that you grant us a further 10 working days until 17^th July 2018 or as
soon as we are able to before this in order to provide a substantive
response to you.

 

Your understanding and patience is appreciated.

Yours sincerely

 

Tracy O'Hare

Information Management Officer

Business Management

Treasury Building

Cleveland Street
Birkenhead
Wirral
CH41 1AH

[1]Tel:0151 691 8397

[2][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

 

 

 

 

show quoted sections

InfoMgr, FinDMT, Wirral Metropolitan Borough Council

Dear Mr J Brace

 

We write in relation to your recent request made under the Freedom of
Information Act,

 

Please do accept our sincere apologies, we can confirm that your enquiry
is in progress however in accordance with S45 (2) of the code of practice
FOIA 2000 the Council needs to consult with a third party and we request
that you grant us a further 10 working days until 17^th July 2018 or as
soon as we are able to before this in order to provide a substantive
response to you.

 

Your understanding and patience is appreciated.

Yours sincerely

 

Tracy O'Hare

Information Management Officer

Business Management

Treasury Building

Cleveland Street
Birkenhead
Wirral
CH41 1AH

[1]Tel:0151 691 8397

[2][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

 

 

 

 

show quoted sections

InfoMgr, FinDMT, Wirral Metropolitan Borough Council

Dear Mr J Brace

 

We write in relation to your recent request made under the Freedom of
Information Act,

 

Please do accept our sincere apologies, we can confirm that your enquiry
is in progress however in accordance with S45 (2) of the code of practice
FOIA 2000 the Council needs to consult with a third party and we request
that you grant us a further 10 working days until 17^th July 2018 or as
soon as we are able to before this in order to provide a substantive
response to you.

 

Your understanding and patience is appreciated.

Yours sincerely

 

Tracy O'Hare

Information Management Officer

Business Management

Treasury Building

Cleveland Street
Birkenhead
Wirral
CH41 1AH

[1]Tel:0151 691 8397

[2][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

 

 

 

 

show quoted sections

Corrin, Jane, Wirral Metropolitan Borough Council

Dear Mr. Brace,

Thank you for your request for information shown below.  The titles of the
pertinent reports are listed below:

 

Engagement report

Handover Report

End of Project Report

 

The Council is unable to provide copies of the reports in question and
seeks to rely on the exemption contained within Section 43 of The Freedom
of Information Act 2000.   The Council believes that to disclose the
information in question would prejudice the commercial interests of any
person. (A person may be an individual, a company, the public authority
itself or any other legal entity.)   The Information Commissioner advises
that the concept of commercial interest is wide and a commercial interest
relates to a person’s ability to participate competitively in a commercial
activity, e.g. the purchase and sale of goods or services.

 

In responding to your enquiry, I have had regard to the advice contained
within the guidance on the Information Commissioner’s Office website at
<[1]http://ico.org.uk/for_organisations/guid...>

 

A Section 43 exemption is a qualified exemption and requires that the
public interest test is considered.  The Council believe that disclosure
of the requested information would prejudice the commercial interests of
any person. The Council needs to be able to operate in a commercial and
competitive environment and disclosure of information, in this case, could
prejudice the ability for the organisation to operate competitively.  The
Council procures goods and services, including management consultancy in a
commercial and competitive environment.  We work with partner
organisations who provide information and potential solutions for us to
consider in relation to robust decision making on critical issues of the
day.   This partnership working allows the Council to develop policies and
implement them in relation to remodelling Council structures and services
to gain short, medium, and long term efficiencies.

 

Public interest factor/s in favour of disclosure:

Members of the public would gain an understanding of how decisions are
made.

 

Public interest factors in favour of withholding the requested
information:

The commercial interests of the Council and or our partner organisation
would be prejudiced in relation to the commercial activities it is engaged
in.

3^rd parties may be reluctant to engage in commercial activities with the
Council if they felt information, which they believed to be commercially
sensitive may be released into the public domain.

The Council would be unable to operate effectively in a commercial
environment and this may impair its ability to make robust decisions.

 

Having weighed up the factors in favour of and against disclosure of the
requested information, it is the opinion of the Council that the factors
in favour of withholding the requested information outweigh those in
favour of disclosure.  This part of your request is therefore refused and
the Council intends to rely on the exemption contained within Section 43
of The Freedom of Information Act 2000.  

 

You have the right under Section 17 of the Freedom of Information Act 2000
to ask for an internal review of the refusal to provide some of the
information requested. Please direct any request for an internal review to
[2][Wirral Borough Council request email]

 

If you remain dissatisfied after any internal review has taken place then
you also have the right to complain to the information Commissioner (ICO)
at [3] ico.org.uk/global/contact-us

The ICO expects requestors to have exhausted the internal review procedure
of an organisation first, before they will consider any complaint.

 

Yours sincerely

 

Jane Corrin

Data Protection Officer & Records and Information Manager

Business Management

Wirral Council

[4][email address]

 

Visit our website: [5]www.wirral.gov.uk

 

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

 

show quoted sections

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 'CIPFA reports'.

For clarity this internal review is about the refusal to supply the following three reports:-

i) Engagement Report,
ii) Handover Report and
iii) End of Project Report.

The Council states it relies on section 43 (commercial interests) to refuse each of the 3 reports. It does not claim that anything in any of the reports is a trade secret, therefore relies on 43(2) which states, "Information is exempt information if its disclosure under the Act would, or would be likely to, prejudice the commercial interests of any person (including the public authority holding it).

The Council states its opinion that release of the information would prejudice commercial interests rather than "would be likely to".

In order for a request to be refused (section 17) the Council needs to state it has been refused, state the exemption in question and (s.17(1)(c)) "states (if that would not otherwise be apparent) why that exemption applies".

Wirral Council goes on to state, "The Council believe that disclosure of the requested information would prejudice the commercial interests of any person. The Council needs to be able to operate in a commercial and competitive environment and disclosure of information, in this case, could prejudice the ability for the organisation to operate competitively. The Council procures goods and services, including management consultancy in a commercial and competitive environment. We work with partner organisations who provide information and potential solutions for us to consider in relation to robust decision making on critical issues of the day. This partnership working allows the Council to develop policies and
implement them in relation to remodelling Council structures and services to gain short, medium, and long term efficiencies."

"Any person" is therefore understood by the requester in this part of Wirral Council's response to mean Wirral Council itself. Wirral Council's generic arguments about its own commercial interests use the word "could" in relation to possibly prejudicing its ability to operate competitively, whereas the legal threshold in s.43 is "would" or "would be likely to". "Could" appears to be less than the threshold of "would be likely to".

The generic arguments used have not linked why Wirral Council is of the opinion disclosure of the reports (or indeed an example of a class of information contained in the reports) requested would prejudice its commercial interests.

The titles of the reports being "Engagement Report", "Handover Report" and "End of Project Report" imply that these are bespoke reports created for Wirral Council by CIPFA and unlikely to be generic reports.

However, even if you reject my arguments about commercial sensitivity I would like to move onto the public interest test as s.43 is a qualified exemption.

The three reports cost Wirral Council a total of £147,960 (which is a large sum of public money). One of the public interest factors in favour of disclosure is it would explain better than Wirral Council has so far in what this money was spent on.

Another factor in favour of disclosure is that following receipt of these reports Wirral Council has engaged in a spending freeze/review and disclosure of the reports would explain whether one or more of these reports led to that decision.

It's also stated in your response that "This partnership working allows the Council to develop policies and implement them in relation to remodelling Council structures and services to gain short, medium and long term efficiences." Changes to policies or major changes to services are made by councillors who are elected by the people of Wirral. A public interest argument in favour of disclosure is that it would lead to greater public understanding as to why policy or service changes arising from the reports happened and greater public accountability of those councillors (or senior managers) that made such decisions arising from the reports.

In relation to the public interest arguments against disclosure.

In relation to the first, Wirral Council has not explained why its own commercial interests or that of CIPFA would be prejudiced by release of the information. Wirral Council uses "would" here rather than earlier it uses "could", therefore some clarity is required on whether its position is that disclosure of the information "would" prejudice its commercial interests as opposed to "could" prejudice its commercial interests.

Wirral Council has provided no evidence to support its assertion that third parties may be reluctant to engage in commercial activities with Wirral Council if they felt commercially sensitive information may be put in the public domain. In order to pass the threshold of "would" Wirral Council would have to base this on a view of a third party made to Wirral Council. In decision notice FER0672223 (which was unmodified by Wirral Council's appeal to the First-Tier Tribunal) ICO in paragraphs 56-59 of that decision notice stated:

"56. The Commissioner notes that, amongst the documents on the council’s website which outline its Corporate Procurement Strategy is “Freedom of Information....Guidance For Suppliers”2. This document alerts prospective partners to the possibility that information relating to their engagement with the council might be disclosed in response to requests. The document provides prospective tenderers or other commercial engagers with an opportunity to identify specific information which might result in harm to their commercial interests but clarifies that ultimate responsibility for decisions around disclosure rests with the council.

57. In view of the above and the potentially lucrative economic benefits for third parties wishing to engage with public authorities in commercial ventures, the Commissioner considers it unlikely that the disclosure of information would inhibit parties from entering into contracts with the council. It follows that it is unlikely that the council would, therefore, suffer damage to its legitimate economic interests should the information be disclosed.

58. Of relevance both to the council’s arguments regarding its own legitimate interests and those of the developer, the Commissioner notes that the council has not identified any specific elements of the withheld information and causally linked disclosure to specific effects.

59. Discouraging future partners from working with the council is a general effect and, in order to be convinced that such an effect would ensue, the Commissioner considers that the commercial significance of information to be disclosed needs to be identified. Simply identifying information as “sensitive commercial information” begs the question why sensitivity is attached to the information. In the absence of specific arguments in this regard the Commissioner is left with the impression that the exception has been applied on a general basis."

2 https://www.wirral.gov.uk/sites/default/...

Finally, the Council's assertion that disclosure of the information would make it unable to operate in a commercial environment, considering that paragraph 56 of the decision notice outlined that Wirral Council warns contractors that their information may be disclosed appears to contradict this assertion of Wirral Council. The rest of this reason in the public interest test that disclosure may "impair its ability to make robust decisions" isn't linked to the exemption claimed (commercial interests) that disclosure would prejudice Wirral Council's commercial interests.

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

1 Attachment

Dear Mr Brace

 

I write further to your request of 8 August for an internal review of our
decision of 11 July regarding your FOIA 2000 request regarding payments
made by Wirral Council to CIPFA C.CO LTD.

 

I note the following from your request:

 

1.       You have asked for disclosure of the following reports:

·         Engagement Report,

·         Handover Report; and

·         End of Project Report.

 

2.       You raise concerns about the use of language in applying the
s43(2) FOIA 2000 exemption to refuse your request for disclosure

 

3.       You make representations about the public interest test applied
in making the decision referred to at 2 above; specifically

 

a.       It is a large amount of money & disclosure would explain what the
money was spent on

b.      You consider disclosure of these reports would inform if the
reports lead to the spending freeze

c.       Disclosure would lead to greater public understanding of policy
or service changes arising from the reports

d.      Disclosure would lead to greater public accountability of the
councillors or service managers making decisions arising from the reports

 

4.       Further you make the following representations:

 

a.       We have not explained why our commercial interests or that of
CIPFA would be prejudiced by releasing the information.

b.      You request clarity on the use of ‘would’ as opposed to ‘could’
with regard to the prejudicing of our commercial interests

c.       We have provided no evidence to support our assertion that third
parties may be reluctant to engage with us if they thought we would put
commercially sensitive information into the public domain. You state that
we would need to base this on a view from a third party to us stating this
fact.

d.      You refer us to the ICO’s decision on FER0672223

e.      You claim that we state disclosure may “impair its [our] ability
to make robust decisions” isn’t linked to the exemption claimed. 

 

I will deal with the issues you raise following the numbering set out
above.

 

1.       I am happy that the correct exemption has been applied in this
case.

 

Section 43(2) exempts information whose disclosure would, or would be
likely to, prejudice the commercial interests of any person (an
individual, a company, the public authority itself or any other legal
entity).

 

These reports provide advice to Wirral Council on the organisational
structure of the Council and possible improvements by a restructuring
process.

 

We have received advice from C.Co, the authors of the reports, that the
disclose of the reports would have a significant effect on their
commercial interests. This is twofold in application, in that these
reports being publically available it would make public their working
practices and methodology of work thus giving competitors to their
business crucial information to allow them to undercut their pricing
structures and also to utilise the methodology for their own gain.
Secondly, by providing information which could be used by other local
authorities to their advantage without the need to pay for the services of
C.Co and thus reducing income streams for them.

 

I believe that this position is comparable as that set out by the ICO in
the following decision: University of Central Lancashire (UCLAN) v IC and
Professor Colquhoun EA/2009/0034, (8 December 2009). In this case the
withholding of information was appropriate under this exemption.

 

Further, due to the contents and nature of the report the Council believes
that their disclosure would be likely to impact on the commercial
interests of the Council in seeking competitive tenders/quotes for work of
a similar nature in the future.

 

Having decided that this is the correct exemption to rely on, and as
s43(2) is a qualified exemption the council is obliged to then apply the
public interest test. I have to decide whether the balance of the public
interest in maintaining the exemption outweighs that of disclosing the
information.

 

The ICO guidance makes clear:

                “The public interest here means the public good, not what
is of interest to the public, and not the private interests of the
requester.

In carrying out the public interest test the authority should consider the
circumstances at the time at which it deals with the request. If carrying
out an internal review, it may consider the circumstances

up to the point that review is completed.”

 

As I have assessed that the impact ‘would’ prejudice the commercial
interests of C.Co and ‘would be likely to’ prejudice our own commercial
interest I have had to balance both thresholds against the public interest
in disclosing the information requested. Having met the higher threshold
in relation to the impact on C.Co I believe that this carries greater
weight when applying the public interest test against disclosure. When
coupled with the additional prejudice to the Council itself, I have
considered this weight strengthened further.

 

Further, I have considered the case of Willem Visser v Information
Commissioner EA/2011/0188, (1 March 2012). In particular I draw you
attention to the following guidance that has influenced my decision
making:

 

“It noted that prejudicing the commercial interests of one player in the
market would distort competition in that market, which in itself would not
be in the public interest.

As the Tribunal pointed out, in terms of the public interest test, there
is therefore a public interest in protecting the commercial interests of
individual companies and ensuring they are able to compete fairly:

“If the commercial secrets of one of the players in the market were
revealed then its competitive position would be eroded and the whole
market would be less competitive with the result that the public benefit
of having an efficient competitive market would be to some extent
eroded”.”

 

I consider that this case is relevant to both the potential impact on C.Co
and ourselves.

 

Finally, I have considered that the outcome of the restructuring work will
be reflected in the structural charts, which are available here for you to
view:

 

[1]https://www.wirral.gov.uk/about-council/...

 

For your information I am aware that there is a further update pending
which is to be released publically imminently. These charts will show the
changes made to our staffing structure without compromising any commercial
interests.

 

Further, at point 3(d) below I will direct you to the Council meeting
minutes where the reports were considered and the proposals therein
approved. This gives details of the changes recommended in the reports
whilst not disclosing the working practices and methodology used by C.Co
to analyse the Council’s structure and provide advice, nor does it
disclose anything that ‘would be likely’ to prejudice the commercial
interests of the Council, as above.

 

As such, whilst I rely on the exemption to withhold the full reports, I
have provided access to publically available information which should, in
part, satisfy the concerns you have raised over non-disclosure. I further
address your more specific concerns in more detail below.

 

 

2.       I believe the response in point 1 above sets out the council’s
position appropriately in line with the language of the FOIA 2000.

 

The initial reply states (as per your own request for an internal review)
“the council believe that….would prejudice the commercial interests of..”
[my emphasis]. As such, I believe that the correct exemption was applied
at the initial response time also. Subsequent use of language is to
explain the decision.

 

Further, the correct language has been used during this internal review to
make clear the basis upon which the exemption is relied upon both in
relation to C.Co and Wirral Council.

 

I do not consider that your points raised under this complaint can be said
to amount in inappropriate use of the exemption in the first instance.

 

3.       I shall use the same sub numbering as above:

a)      The explanation above give details of the nature of the reports
commissioned. Disclosure of the reports is not necessary to understand the
nature of the report, as such I do not consider this an appropriate issue
when considering reliance on the exemption.

b)      Nothing within these reports informed the spending freeze, which
was implemented as part of the overall budget considerations for the
council.

c)       There have been no policy changes as a result of the reports. The
staffing structure has changed and we have directed you to the new charts
above.

d)      Please find below the minutes of the Employment and Appointments
Committee Meeting held on Tuesday, 6th March 2018. At this meeting the
reports were considered, and I believe that these minutes will reassure
you as to the decision making following receipt of the report whilst
preserving the commercial interests of the report authors and the Council.

[2]http://democracy.wirral.gov.uk/ieListDoc...

 

4.       Please see relevant sub points:

 

a.       Please see my point 1 above

b.      Please see my point 2 above

c.       Please see my point 1 above.

d.      I have reviewed the full decision in ICO’s decision FER0672223,
noting it is a decision made under EIR 2004 and not FIOA 2000. That
notwithstanding I should like to draw your attention to paragraph 63 where
ICO concludes:

“it must be shown that the disclosure of specific information will result
in specific harm to the legitimate economic interests of one or more of
the parties”

 

In my point 1 above I set out the specific harm that we believe would or
would be likely to occur if these reports were shared.

 

e.      The statement you take issue with is made when considering the
public interest test and appears to have been used to offer explanation of
our initial decision making. As such, I do not consider that it was used
as part of the s43(2) exemptions considerations, which as per my point 2
above was made with reference to the correct wording of the statute. 

 

I believe that all points raised in your letter requesting an internal
review have now been considered in full.

 

I concur with the decision made on 11 July 2018 in the first instance and
rely on s42(2) of the FOIA in refusing your requests for disclosure. The
reasoning is set out in detail above.

 

Should you remain unhappy with this decision then your next step is to
take this matter to the Information Commissioners Office. Their website at
[3]https://ico.org.uk/global/contact-us/ provides the appropriate means of
raising a complaint to them.

 

Yours sincerely

 

 

Lynette Paterson

Principal Information Management Officer

Business Management

 

Treasury Building

Argyle Street
Birkenhead
Wirral
CH41 1AH

 

[4]Tel: 0151 691 8201

[5][Wirral Borough Council request email]

 

 

[6]LGC Awards15_Winner_MIP

 

 

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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