Letter to the ICO

J A Giggins made this Freedom of Information request to West Berkshire 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 successful.

Dear West Berkshire Council,

Under the provisions of the FOI Act and/or the Environmental information regulations please could you supply me with a copy of:

1. The letter from West Berkshire Council to the ICO dated 12 June 2012.

2. The undated letter sent by the ICO in response on 8th August 2012.

The Information Commissioner has identified these documents as falling within the scope of a FOI request that I have made to his office, but has not disclosed the documents citing S44(1)(a) of the FOI Act and Section 59 of the DPA, which prevent them from disclosing the information which has been collected in the course of their investigation unless they have lawful authority to do so.

As other correspondence and submissions have been disclosed, and the Information Commissioner specifically identifies in his correspondence to Local Authorities that responses to his enquiries may be subject to FOI requests, I am presuming that West Berkshire Council have refused to give permission for disclosure of these letters. I would therefore be grateful if you could also provide:

3. A copy of the letter from the ICO requesting permission to disclose the information.

4. West Berkshire Council's reply.

5. Any subsequent correspondence on the matter.

Should you have any queries about this request, please do not hesitate to contact me via the whatdotheyknow.com website.

Many thanks.

Yours faithfully,

J A Giggins

Suzanne Kenchington, West Berkshire Council

FoI/2013/17

 

Dear Mrs Giggins,

 

Request for information: Letter to the ICO

 

Thank you for your request received 08.01.2013. This has been forwarded to
the relevant service and we will seek to respond within twenty working
days.

 

Yours sincerely,

 

Suzi Kenchington 

Information Support Officer

Strategic Support,

West Berkshire Council, Council Offices, Market Street, Newbury, RG14 5LD

email:  [1][email address]

' 01635 519860 (external)      '  2860 (internal)      

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Sue Broughton, West Berkshire Council

2 Attachments

FoI/2013/17

Dear Mrs Giggins,

Request for information: Letter to the ICO

Please find our response to your request attached.

Yours sincerely

Sue Broughton

Information Management Officer

* Strategic Support West Berkshire Council, Council Offices, Market
Street, Newbury RG14 5LD

Email: [West Berkshire Council request email]

01635 519747 (external) ' 2747 (internal)

You should be aware that all emails received and sent by this Council
are subject to the Freedom of Information Act 2000 and therefore may be
disclosed to a third party.

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Dear West Berkshire Council,

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

I am writing to request an internal review of West Berkshire Council's handling of my FOI request 'Letter to the ICO'.

I have looked up the exemption you have applied, and it appears that even if it is applicable, it is not an absolute exemption, and is therefore subject to the 'public interest' test.

Moreover the responsible officer has given no arguments as to why disclosure of this correspondence would prejudice the effective conduct of public affairs other than to quote subsection (b) - ie that it would be likely to inhibit the free and frank provision of advice and exchange of views. Clearly I do not know what information has been provided to the responsible officer or what he took into account in making his decision, but I would be grateful if he/you could provide more reasoning to support his 'reasonable' opinion.

Personally I think there are very strong arguments for disclosure, including transparency, accountability and probity. Is the information within these letters so important that it will affect the running of the Council if placed in the public domain? It is hard to understand how that could be the case.

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

Yours faithfully,

J A Giggins

Suzanne Kenchington, West Berkshire Council

FoI/IR/2013/02

Dear Mrs Giggins,

Request for an internal review

Thank you for your request for an internal review, which I will pass to
Mr Lowe to consider. We will seek to respond to you within twenty
working days.

Yours sincerely,

Suzi Kenchington
Information Support Officer
Strategic Support,
West Berkshire Council, Council Offices, Market Street, Newbury, RG14
5LD
email: [email address]
' 01635 519860 (external) ' 2860 (internal)
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Dear Suzanne Kenchington,

Many thanks for your acknowledgement.

Ms Broughton didn't state the name of the originator of the correspondence in question, but it seems possible that it might have been Mr Lowe, in which case it doesn't seem appropriate that he should perform the internal review, or consider the 'public interest' test, especially given his previous interpretation of that test as 'nobody else is interested'.

Whilst I did not specifically ask for the names of the correspondents, this would have been obvious from the with-held information, and I would be grateful if the internal review takes into account firstly whether the refusal is appropriate and in the public interest, and if upheld whether it should have been applied to the two letters in their entirety, or whether redacted copies could have been supplied.

Yours sincerely,

J A Giggins

Suzanne Kenchington, West Berkshire Council

FoI/IR/2013/02

Dear Mrs Giggins,

Request for an internal review

Thank you for your email.

A response will be provided as previously advised, taking account of
your view.

Yours sincerely,

Suzi Kenchington
Information Support Officer
Strategic Support,
West Berkshire Council, Council Offices, Market Street, Newbury, RG14
5LD
email: [email address]
' 01635 519860 (external) ' 2860 (internal)
P Do you really need to print this email?

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J A Giggins left an annotation ()

Extract from ICO guidance to Public Authorities:

"In most cases, section 36 is a qualified exemption. This means that even if the qualified person considers that disclosure would cause harm, or would be likely to cause harm, you must still consider the public interest. However, for information held by the House of Commons or the House of Lords, section 36 is an absolute exemption so you do not need to apply the public interest test."

http://www.ico.gov.uk/for_organisations/...

Dear Suzanne Kenchington,

Further to my previous email and having revisited the disclosures that were made, Ms Broughton's email to the ICO confirms that David Lowe was the author and recipient of the letters requested.

I have also found some guidance that supports my view that a piblic interest test should have been applied to the refusal. I have added this as an annotation to the request.

Yours sincerely,

J A Giggins

David Lowe, West Berkshire Council

1 Attachment

Dear Mrs Giggins,

Please find attached my response to your request for an internal review.

Yours sincerely,

David Lowe
Scrutiny and Partnerships Manager
Strategic Support West Berkshire Council Market Street Newbury
Berkshire RG14 5LD
01635 519817 | Ext 2817 | [email address]

http://www.westberks.gov.uk/

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Dear David Lowe,

Thank you for your internal review. Please could you tell me which officer deputised for the Monitoring Officer on this occasion.

Many thanks.

Yours sincerely,

J A Giggins

David Lowe, West Berkshire Council

Dear Mrs Giggins,

The Deputy Monitoring Officer who worked on the review was Sarah Clarke,
Legal Team Leader.

Yours sincerely,

David Lowe
Scrutiny and Partnerships Manager
West Berkshire Council
Market Street
Newbury
Berkshire
RG14 5LD

T: 01635 519817
F: 01635 519613
E: [email address]

www.westberks.gov.uk/informationmanagement

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J A Giggins left an annotation ()

Referred to the ICO with the following additional arguments:

West Bershire Council have refused to disclose two letters citing exemptions under s36 b and c of the FOI Act. Full details are available on whatdotheyknow.com - http://www.whatdotheyknow.com/request/le...

Following the internal review, I have the following additional arguments, based on the understanding that:

'The prejudice test is not a weak test, and a public authority must be able to point to prejudice which is “real, actual or of substance” and to show some causal link between the potential disclosure and the prejudice. As long as the prejudice is real and not trivial, its severity is not relevant to engaging the exemption – this will be factored in at the PIT stage'

and

'“Likely to prejudice” means that the possibility of prejudice should be real and significant, and certainly more than hypothetical or remote. “Would prejudice” places a much stronger evidential burden on the public authority and must be at least more probable than not'

Much will depend on the content of the letters, but if questions were 'honestly raised' and answered then surely the scenario put forward by the Council is merely hypothetical, and the probability of occurrence is remote. In any case there is a very strong counter argument that PAs should be discouraged from making 'secret' direct approaches to ICO caseworkers' managers, as this could undermine the credibility of the ICO as an independent regulator, whose ethos is : "It is in the public interest that we are open, transparent and accountable for the work that we do"

I don't really see the relevance of the arguments used under s36(c). The ICO made me aware that it held these letters, but refused to disclose them because 'it did not have lawful authority to do so'. I was not made aware of why West Berkshire Council did not give permission for disclosure and it seemed a logical next step to then ask West Berkshire Council for the letters and any correspondence that might provide further explanation.

The correspondence that has been disclosed reveals 2 reasons, the first being that the ICO had initially identified the documents for release under a DPA SAR, whereas West Berkshire Council had not ( a potential breach of the DPA dependant on the content of the letters), and secondly because WBC felt that s36b of the FOI applied. They do not appear to have considered the public interest test at that stage, nor on first consideration of this subsequent request, and the public interest arguments in the review seem to me to reflect personal opinion rather than reasoned argument - attempting to discredit the requestor rather than addressing the request itself. The Act provides more appropriate exemptions for circumstances where demands become burdensome which the Council have not ( and could not) use, and in any case the 'burden' in this case is caused by the refusals, not the request itself.

Finally I am not sure how much of the refusal is actually the 'reasonable opinion' of the Responsible Officer and how much is the opinion of the author/recipient of the letters in question. I understand that this is something that the ICO would normally seek to establish when considering a S36 refusal.

J A Giggins left an annotation ()

In addition the ICO has already provided West Berkshire Council with advice on it's expectations of the Council when applying a section 36 exemption in a previous decision notice.

http://www.ico.org.uk/~/media/documents/...

As far as I can see the advice has not been followed.

J A Giggins left an annotation ()

I was told by the ICO case officer that the decision notice was queued for signature on 19th September and that it should be issued within two weeks. I'm still waiting........

J A Giggins left an annotation ()

Still waiting, and no response to my further enquiry as to revised timescales.

J A Giggins left an annotation ()

Complaint upheld

Decision notice can be read here:

http://www.ico.org.uk/~/media/documents/...

J A Giggins left an annotation ()

Decision (including any steps ordered)
1. The complainant requested correspondence exchanged between West Berkshire Council and the Information Commissioner. The Council withheld the requested information by relying on sections 36(2)(b)(i) and (ii) and (c), and 40(2).
2. The Commissioner’s decision is that the aforesaid sections did not did operate so as to withhold requested information.
3. The Commissioner requires the public authority to take the following steps to ensure compliance with the legislation.
 Provide the complainant with the requested information that it has withheld, save for certain extracts which the Commissioner has found to be exempt from disclosure by virtue of section 40(1).
4. The public authority must take these steps within 35 calendar days of the date of this decision notice. Failure to comply may result in the Commissioner making written certification of this fact to the High Court pursuant to section 54 of the Act and may be dealt with as a contempt of court.

Sue Broughton, West Berkshire Council

1 Attachment

FoI/2013/17

Dear Mrs Giggins,
Request for information: Letter to the ICO

 

Following the ICO Decision on your request for a review, please find
attached the requested documents. Please note that deletions have been
made at the request of the ICO.

 

Yours sincerely

 

Sue Broughton

Information Management Officer

Please note that I work part time and messages may not be answered until I
am next in the office. 

* Strategic Support West Berkshire Council, Council Offices, Market
Street, Newbury RG14 5LD

Email:  [1][email address]

' 01635 519747 (external)      '   2747 (internal)      

You should be aware that all emails received and sent by this Council are
subject to the Freedom of Information Act 2000 and therefore may be
disclosed to a third party.

P Please consider the environment before printing this e-mail

 

show quoted sections

J A Giggins left an annotation ()

This is one of the arguments put forward by West Berkshire Council for non disclosure, extracted from the decision notice:

.....The withheld information consists of an exchange of correspondence between this authority and the Commissioner which deals with the handling of one specific review, the actions of the officers concerned, and more general issues around how reviews are handled. In both letters, criticism of the other party is apparent. Were this correspondence between the other regulator(the Local Government Ombudsman) and this authority, its confidentiality would be assured by a simple request to treat the correspondence in confidence. Such confidentiality gives an organisation security to engage in frank discussion, without which the value of a regulator as an advisory body is questionable. Not every discussion can be carried out verbally without some audit trail to record the views of, and understanding reached between,the organisations concerned.....

......which kind of misses the point that both Regulators are supposed to be INDEPENDENT!

Fortunately the ICO was not swayed by the argument!

J A Giggins left an annotation ()

New link to decision notice - the old one no longer works:
https://ico.org.uk/media/action-weve-tak...

J A Giggins left an annotation ()

I have recently become aware of further documents withheld from the DPA subject access request which I believe this letter should have been released under. Unfortunately I doubt that the ICO will investigate after this length of time.