Debt written off by the Council

The request was refused by Cheshire West and Chester Council.

Dear Cheshire West and Chester Council,

I have read the Council’s response to the FOI ref 1511854. It is worded in such a way as to strongly suggest that the only reason for refusing to release the identity of the debtor is the protection of the Commercial interests of that debtor, as quoted below:-

‘9.3 In conducting the Review, the Council agrees that the exemption within s43(2) is engaged, in that, the Limited Company, who is named as the debtor, has commercial
interests at stake which would be likely to be prejudiced by the release of the information.
It carries out commercial activities in the open and competitive market and as such has competitors who may use the information to their advantage and to the disadvantage of the Company. Also, there is a real risk that the reputation of the Company could be damaged or it could create a lack of business confidence in dealing with the Company. It is clear that it is the interests of the Company which are affected. The Council considers
that there is a real and significant risk of prejudice and harm being caused to the commercial interests of the Company by releasing the name.’

Part of this judgement is based, in Para 9.4, 'Factors in favour of disclosure', on an assessment that the 'Public interest in the Company’s transactions with other persons is only MEDIUM.'
No indication is given as to why this assessment is not rated more highly. This is public money that is being written off without exhausting the normal legal processes and members of the public who may consider employing this organisation would be assisted by knowing how they treat their creditors.
Of course, if the company has ceased trading, then there is no logical reason not to name it.

I wish therefore to raise a NEW FOI request in which I would ask you to address the following specific points:-

a) It is clear from the Guidance issued by the MOJ (Freedom of Information exemptions guidance May 2012, Section 43: commercial interests) that the Council should be ‘alert to the differences between using this exemption to protect the interests of a third party and using it to defend a public authority's own interests’. All the evidence in your reply suggests that it is the third party that is being protected. Whilst the MOJ guidance correctly identifies issues of patents, trade secrets, commercial planning etc where it would be acceptable to protect the third party, nowhere does it suggest protection for debtors. Please advise specifically what part of the guidance you are using to justify your response.

b) The guidance also says ‘Commercial sensitivity will often diminish over time - in some cases quite quickly.’ Given that, according to your response, the debt was incurred over two and a half years ago, it seems that you are misinterpreting the guidance in refusing to reveal the debtor’s identity.

c) Please confirm whether or not the debtor organisation is still trading

d) Please advise whether the Council has any existing or ongoing contracts (or other commercial arrangements) with the debtor organisation or with any other with which there are directorships or senior personnel in common. I would expect such information to be readily available from your ‘due diligence’ processes.

e) Please advise whether the Council has had any discussions about future business with the debtor organisation or with any with which there are directorships or senior personnel in common. Again, I would expect such information to be readily accessible from your internal processes.

Given the fact that you have already examined most parts of this enquiry, I would hope that you would be able to respond in less than the statutory 20 working days.

Yours faithfully,

N.Siddle

John Murray left an annotation ()

The original request, Log Number 1511854, is currently the subject of an appeal to the Information Commissioner. I will advise of progress.

Cheshire West and Chester Council

RE: Your request under the Freedom of Information Act 2000

Case Reference: 101001734386

Dear Mr Siddle

Thank you for your email 2nd January 2014.

It will be treated as a request within the meaning of the Act: this means that we will send you a full response within 20 working days, either supplying you with the information which you want, or explaining to you why we cannot supply it.

If we need any further clarification or there is any problem we will be in touch.

In the meantime if you wish to discuss this further please contact me. It would be helpful if you could quote the log number 1734386.

Yours sincerely

Scott Robertson
FOI Unit

Solutions Team

Cheshire West and Chester Council

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Dear Cheshire West and Chester Council,
By law you should have responded to my request within 20 working days or provided me with an explanation as to why that has not been possible. You have done neither, despite my belief that most of the information should have been readily to hand.
I would therefore ask you to conduct an internal review as soon as possible, providing me with both the information originally requested and the reason for the delayed response.

Yours faithfully,

N.Siddle

FOI West, Cheshire West and Chester Council

Dear Mr Siddle

 

Thank you for your email requesting an internal review.  Please accept my
apologies for not forwarding you the response by yesterday's deadline.  I
am the officer responsible for coordinating requests for this area of
Council business and unfortunately conflicting priorities have meant that
I could not meet the deadline. I am sorry for not meeting the deadline and
also for not informing you of the expected delay in meeting it and I trust
that you find this explanation acceptable. 

 

I can now provide you with the following response. I would be grateful if
you would review the response provided and let me know whether you wish to
proceed with an internal review into the handling of this request.  If so,
please state clearly on what grounds you are requesting the review.  The
entitlements for requesting a review are listed under the bullet points
below.   The review will be arranged, should you require one, once you
have submitted your reasons for a review.

 

a) It is clear from the Guidance issued by the MOJ (Freedom of Information
exemptions guidance May 2012, Section 43: commercial interests) that the
Council should be ‘alert to the differences between using this exemption
to protect the interests of a third party and using it to defend a public
authority's own interests’. All the evidence in your reply suggests that
it is the third party that is being protected. Whilst the MOJ guidance
correctly identifies issues of patents, trade secrets, commercial planning
etc where it would be acceptable to protect the third party, nowhere does
it suggest protection for debtors. Please advise specifically what part of
the guidance you are using to justify your response.

 

This is not a request for recorded information.  However, the Council is
satisfied that the use of exemption in the original response to the
request reference 1511854 was correct  and with the findings from the
internal review that the exemption is engaged and the public interest in
maintaining the exemption outweighs the public interest in disclosure. 
Should the applicant wish to challenge the Decision Notice they have been
advised of their rights to review by referral to the Information
Commissioner’s Office.

 

b) The guidance also says ‘Commercial sensitivity will often diminish over
time - in some cases quite quickly.’ Given that, according to your
response, the debt was incurred over two and a half years ago, it seems
that you are misinterpreting the guidance in refusing to reveal the
debtor’s identity.

 

This is a comment, not a request for recorded information, and therefore
does not fall within the remit of the Freedom of Information Act 2000.

 

c) Please confirm whether or not the debtor organisation is still trading

 

The Council cannot confirm the trading status of the organisation as the
council is not in a position to express such an opinion.

 

d) Please advise whether the Council has any existing or ongoing contracts
(or other commercial arrangements) with the debtor organisation or with
any other with which there are directorships or senior personnel in
common. I would expect such information to be readily available from your
‘due diligence’ processes.

 

No existing or ongoing contracts with the debtor organisation have been
identified by a targeted search of the relevant departments.

 

e) Please advise whether the Council has had any discussions about future
business with the debtor organisation or with any with which there are
directorships or senior personnel in common. Again, I would expect such
information to be readily accessible from your internal processes.

 

We have conducted a targeted search of the relevant departments of the
Council and no recorded information in relation to discussions about
future business with the debtor organisation has been found. 

 

In relation to whether the Council has any existing or ongoing contracts
(or other commercial arrangements) with any other [organisation] with
which there are directorships or senior personnel in common the Council
considers that to confirm or deny whether any recorded information is held
in relation to this would exceed the ‘appropriate limit’ under Section 12
of the Freedom of Information Act 2000. 

 

Section 12 allows a public authority to refuse to deal with a request
where it estimates that it would exceed the appropriate limit to either
comply with the request in its entirety or to confirm or deny whether the
requested information is held.  The ‘appropriate limit’ for local
authorities is currently £450, or around 18 hours work. 

 

To confirm or deny whether  the recorded information requested is held
would require finding out what discussions everyone in the Council was
having with organisations.  Once this information was identified the
Council would then have to find out who the directors and senior managers
were for every organisation the Council was dealing with to identify any
overlaps with the debtor organisation.

 

The Council considers that this is too difficult to quantify given that
there are thousands of organisations with whom we do business.  Therefore
a detailed cost estimate cannot be provided.  However, we are willing to
conduct a further targeted search if you can consider narrowing your
parameters for this search.

 

The Council considers that your request has been answered in full by
either confirming that information is not held, providing you with the
information requested, or explaining why any information has been withheld
and the reasons for any redaction.    Where applicable, the Council has
also told you the reasons for the delay in responding to your request.

 

If you are unhappy with the way your request for information has been
handled you can request a review by writing to the Solutions Team within
40 working days from the date of the Council’s response.  You are entitled
to a review by the Council if:

 

•             You are dissatisfied with the Council’s explanation of why
the application was not dealt with within the 20 working day time limit.

•             All the information requested is not being disclosed and you
have not received an explanation why some information is not being
disclosed.

•             A reason for the disclosures under the request being refused
is not received.

•             You consider that exemptions have been wrongly applied,
and/or

•             You consider that a fee has been wrongly applied.

Please set out your grounds for seeking a review together with what
specific part of your request those grounds apply to and the outcome you
are seeking.  The Council reserves the right to ask you for clarification
of the grounds for your review request if the grounds are not clear, and
to delay commencing the review if such grounds are not provided.

 

The Solutions Team can be contacted by email via: 
[Cheshire West and Chester Council request email] or at the following address:

 

Solutions Team

Cheshire West and Chester Council

HQ

58 Nicholas Street

Chester

CH1 2NP

 

The Solutions Team will acknowledge a request for an internal review
within 5 working days and complete the review as soon as possible and no
later than 40 working days from receipt of the request.

 

More information about the Council’s internal review process can be found
via:
http://www.cheshirewestandchester.gov.uk...

 

If you remain dissatisfied following the outcome of your review, you have
a right of appeal to the Information Commissioner at:

 

The Information Commissioner's Office

Wycliffe House

Water Lane

Wilmslow

Cheshire SK9 5AF

 

Telephone: 08456 30 60 60 or 01625 54 57 45

Website: www.ico.gov.uk

 

There is no charge for making an appeal.

 

Yours sincerely

 

Miriam Wallace

Solutions Team

Cheshire West and Chester Council

 

 

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Dear Cheshire West and Chester Council,

FAO Ms Wallace
I am asking for an internal review because I am not satisfied with the Council’s explanation of why the application was not dealt with within the 20 working day time limit. Also, you have given a demonstrably incorrect cost reason for some of the information being denied and you have failed to provide some of the information requested on the spurious grounds that it was ‘comment’ rather than a request for information. You have also failed to demonstrate that the exemption applied has been done on grounds which are in accord with the DCLG guidance on such issues.
I have written more detailed comments below following each of the paragraphs of your response, having enclosed your previous replies in parentheses:-

(Thank you for your email requesting an internal review. Please accept my apologies for not forwarding you the response by yesterday's deadline. I am the officer responsible for coordinating requests for this area of Council business and unfortunately conflicting priorities have meant that I could not meet the deadline. I am sorry for not meeting the deadline and
also for not informing you of the expected delay in meeting it and I trust that you find this explanation acceptable).

MY RESPONSE:- This is NOT a satisfactory explanation. I am afraid ‘conflicting priorities’ is meaningless in this context as you fail to indicate how your priorities are decided or by whom. This is clearly not the first time that responses from your department have failed to meet the statutory deadline which suggests either under-resourcing or incompetence. Please provide a copy of whatever procedures/ instructions have been put in place to prevent a recurrence.
You apologise for not advising me of the delay. Again, you have made such apologies before with other FOI’s but the fact that it is a recurring issue indicates that there must be a fundamental procedural problem which has not been, or is not being addressed. Please confirm that procedures will be changed to ensure compliance with the regulations and supply me with a copy of the revisions.

(I can now provide you with the following response. I would be grateful if you would review the response provided and let me know whether you wish to proceed with an internal review into the handling of this request. If so, please state clearly on what grounds you are requesting the review. The entitlements for requesting a review are listed under the bullet points
below. The review will be arranged, should you equire one, once you have submitted your reasons for a review. a) It is clear from the Guidance issued by the MOJ (Freedom of Information exemptions guidance May 2012, Section 43: commercial interests) that the Council should be ‘alert to the differences between using this exemption to protect the interests of a third party and using it to defend a public authority's own interests’. All the evidence in your reply suggests that it is the third party that is being protected. Whilst the MOJ guidance correctly identifies issues of patents, trade secrets, commercial planning etc where it would be acceptable to protect the third party, nowhere does it suggest protection for debtors. Please advise specifically what part of the guidance you are using to justify your response. This is not a request for recorded information. However, the Council is satisfied that the use of exemption in the original response to the request reference 1511854 was correct and with the findings from the internal review that the exemption is engaged and the public interest in maintaining the exemption outweighs the public interest in disclosure. Should the applicant wish to challenge the Decision Notice they have been advised of their rights to review by referral to the Information Commissioner’s Office.)

MY RESPONSE:- This was indeed a request for recorded information. I assume that Council procedures are indeed documented in written form. To be absolutely clear, what I was asking for was a copy of the procedures which allow, and show on under what conditions, protection can be offered to third party debtors.
Furthermore, in this particular case, I am asking for details of the decision making process which would confirm that the Council has indeed satisfactorily differentiated between the ‘interests of a third party and those of the public authority'. If, as claimed, the Council has no ongoing business/ negotiation with the debtor then it is clear that the exemption has been applied for the benefit of the debtor and not the Council and Council Tax Payer.

((b) The guidance also says ‘Commercial sensitivity will often diminish over time - in some cases quite quickly.’ Given that, according to your response, the debt was incurred over two and a half years ago, it seems that you are misinterpreting the guidance in refusing to reveal the debtor’s identity. This is a comment, not a request for recorded information, and therefore does not fall within the remit of the Freedom of Information Act 2000.)

MY RESPONSE:- I think that you (wilfully?) miss my request for information here. Again, I re-phrase it for you and ask for a copy of those Council procedures which should be a matter of record and which allow information of this nature to be withheld after a lapse of nearly three years. I assume that there is, within the procedures, some indication of the time over which any ‘commercial sensitivity’ is considered relevant. Please therefore send me a copy of the relevant instruction. I presume also that there are such written procedures in order to avoid the obvious possibilities of favouritism, prejudice and corruption.

((c) Please confirm whether or not the debtor organisation is still trading. The Council cannot confirm the trading status of the organisation as the council is not in a position to express such an opinion.

MY RESPONSE:- I was NOT asking for the Council’s ‘opinion’ here. Whether the company is still a legal entity and whether it is actively trading is a matter of FACT and NOT of opinion. The status can be readily confirmed in less than 5 minutes, and at no cost, by the use of the CompanyCheck or DueDil websites. As long as you continue to withhold the name, I am clearly unable to carry out this search for myself. As such, I believe that you have an obligation to do so on my behalf.

((d) Please advise whether the Council has any existing or ongoing contracts (or other commercial arrangements) with the debtor organisation or with any other with which there are directorships or senior personnel in common. I would expect such information to be readily available from your ‘due diligence’ processes. No existing or ongoing contracts with the debtor organisation have been identified by a targeted search of the relevant departments.)

MY RESPONSE:- You mention a ‘targeted search’ but give no indication as to its size, scope or the parameters used to define the remit. As such, it gives no assurance that you have done anything meaningful to establish the true facts.

((e) Please advise whether the Council has had any discussions about future business with the debtor organisation or with any with which there are directorships or senior personnel in common. Again, I would expect such information to be readily accessible from your internal processes. We have conducted a targeted search of the relevant departments of the Council and no recorded information in relation to discussions about future business with the debtor organisation has been found).

MY RESPONSE:- Again you mention a ‘targeted search’ but give no indication as to its size or remit. Again, it gives no assurance that you have done anything meaningful to establish the true facts.

(In relation to whether the Council has any existing or ongoing contracts (or other commercial arrangements) with any other [organisation] with which there are directorships or senior personnel in common the Council considers that to confirm or deny whether any recorded information is held in relation to this would exceed the ‘appropriate limit’ under Section 12 of the Freedom of Information Act 2000. Section 12 allows a public authority to refuse to deal with a request where it estimates that it would exceed the appropriate limit to either comply with the request in its entirety or to confirm or deny whether the requested information is held. The ‘appropriate limit’ for local authorities is currently £450, or around 18 hours work. To confirm or deny whether the recorded information requested is held would require finding out what discussions everyone in the Council was having with organisations. Once this information was identified the Council would then have to find out who the directors and senior managers were for every organisation the Council was dealing with to identify any overlaps with the debtor organisation. The Council considers that this is too difficult to quantify given that there are thousands of organisations with whom we do business. Therefore a detailed cost estimate cannot be provided. However, we are willing to conduct a further targeted search if you can consider narrowing your parameters for this search.)

MY RESPONSE:- I consider that your approach here is unduly negative and obstructive, showing an amazing lack of knowledge and initiative in accessing the information. It would NOT be necessary to ‘find out what discussions everyone in the Council is having with organisations’. That is a patronising and disrespectful response.
I am able to narrow down the work necessary to a couple of hours (maximum) of work for a junior member of staff by using the CompanyCheck website (http://companycheck.co.uk/). All that is necessary is to put the company number (which I would expect you to have in your records) or the company name into the search box. That will bring up the summary details for the Company. Then click on the ‘Directors’ tab. That will reveal the names of the directors and company secretary. Each of those is ‘hyperlinked’ and those links will show in which other companies they are involved. I presume that the Council has a list of ‘approved’ and ‘blacklisted’ suppliers against which that information could then be readily checked. If you do not carry lists of ‘approved’ and ‘unapproved’ suppliers, please advise on what basis and ‘Due Diligence’ the Council contracts with external organisations.
I am prepared to accept that the information searched by such means may not uncover every single link and that it is fair to restrict the overall scope of the exercise. It would one person take less than 2 hours to get down to the level of linkage that I have described above. It would also be easy and quick to search down through another 3 or 4 ‘levels’ but I have limited my request to what I thought were likely to be the most significant linkages. To claim that it would be difficult or too expensive is nonsense and I would be quite happy to demonstrate to a member of your staff just how simple and quick it would be to make such an enquiry.

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

Yours faithfully,

N.Siddle

FOI West, Cheshire West and Chester Council

Dear Mr Siddle,

 

Thank you for your email of 4 February 2014, reference 1734386

 

An internal review will be arranged and you will be advised of the date
shortly.

 

Yours sincerely

 

Nicole Owen

Cheshire West and Chester Council

 

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Dear FOI West,
It is now 21 working days since I requested this Internal review.
To quote from the Information Commissioner’s publication Good Practice Guidance No. 5 on ‘Time limits on carrying out internal reviews’:-

<<Some other factors to be noted are as follows:
• FOIA requires a request to be complied with “promptly and in any event not later than the twentieth working day following the date of receipt” WHICH SUGGESTS THAT INTERNAL REVIEWS SHOULD ALSO BE COMPLETED PROMPTLY.
• Internal review is an important second opportunity for the public authority to engage with an applicant and there are clear benefits to both parties if the review is concluded within a REASONABLE timeframe.
• The Freedom of Information Act (Scotland) 2002 stipulates an internal review should be completed within 20 working days following receipt of the request for review.

In view of all the above the Commissioner considers that a REASONABLE TIME FOR COMPLETING AN INTERNAL REVIEW IS 20 WORKING DAYS FROM THE DATE OF THE REQUEST FOR REVIEW. There may be a small number of cases which involve exceptional circumstances where it may be reasonable to take longer. In those circumstances, the public authority should, as a matter of good practice, NOTIFY THE REQUESTER AND EXPLAIN WHY MORE TIME IS NEEDED.
In our view, in no case should the total time taken exceed 40 working days. IN SUCH CASES WE WOULD EXPECT A PUBLIC AUTHORITY TO BE ABLE TO DEMONSTRATE THAT IT HAD COMMENCED THE REVIEW PROCEDURE PROMPTLY FOLLOWING RECEIPT OF THE REQUEST FOR REVIEW AND HAD ACTIVELY WORKED ON THE REVIEW THROUGHOUT THAT PERIOD.>>

Other than the advice that 'An internal review will be arranged and you will be advised of the date shortly', I have heard nothing further - either advising when the review is to take place or why more time is needed.

Please therefore advise me (a) when the review is to take place and (b) why you consider additional time is needed. Please also confirm that you "commenced the review procedure promptly following receipt of the request for review and had actively worked on the review throughout that period".

Yours sincerely,

N.Siddle

FOI West, Cheshire West and Chester Council

Dear Mr Siddle

 

Thank you for your email of 5 March 2014 enquiring about your Internal
Review.

 

I confirm that we do have 40 working days in which to respond and I attach
the link below which outlines the process:

 

[1]http://www.cheshirewestandchester.gov.uk...

Your review will be held on 13 March 2014 and you will receive the
Decision Notice by 1 April 2014.

 

Yours sincerely

 

 

Ruth Winson

Solutions Assistant

Cheshire West and Chester Council

 

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Dear FOI West,
Thank you for the reply with the link. However that link says "Unless there are exceptional circumstances, all reviews must be completed AS SOON AS POSSIBLE, and in any event within 40 working days of the request for a review being received." Together with the Information Commissioner’s Good Practice Guidance No. 5 on ‘Time limits on carrying out internal reviews', it is quite clear that 40 days should be considered only in EXCEPTIONAL cases and not treated as the rule.
It should not be taken as absolution from complying with the ICO's guidance.
I would therefore repeat my request that, having now advised me when the review is to take place, you still advise the reason for considering that the additional time was needed.
I would also ask you to confirm that you "commenced the review procedure promptly following receipt
of the request for review and had actively worked on the review throughout that period".

Yours sincerely,

N.Siddle

FOI West, Cheshire West and Chester Council

2 Attachments

Dear Mr Siddle

 

Further to your request for an internal review which was held on 13 March
2014.   

 

Please find attached a copy of the Decision Notice and accompanying
document.

 

Yours sincerely

 

Ruth Winson

Solutions Assistant

Cheshire West and Chester Council

 

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Ray McHale left an annotation ()

How can they not tell you if the company is still trading? This must have been an important consideration when they decided not to disclose the name of the company (indeed I cannot see how they could have made the decision without knowing this) - so they must have this information, at least relating to the time when the original decision was made. It must have also been available as information for the officers who decided the debt was not recoverable.