Minutes of Partnering Board meetings with Biffa Waste Services Limited

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

This request has been closed to new correspondence. Contact us if you think it should be reopened.

The request was partially successful.

ScarletPimpernel

Dear Wirral Metropolitan Borough Council,

The Environmental Streetscene Services Contract for Waste, Recycling and Street Cleansing Services that Wirral Council has with Biffa Waste Services Limited includes as an appendix to the method statements a partnering agreement.

The Partnering Agreement describes a Partnering Board that meets quarterly that comprised at the start of the contract:

David Green (Director of Technical Services), Wirral Council
Mark Smith (Head of Street Scene and Waste Services), Wirral Council
Tara Dumas (Environmental Services Manager), Wirral Council
Gary Bowles (General Manager), Biffa
Zak Shell (Regional Manager), Biffa
Pat Turnbull (Senior Depot Manager), Biffa

Schedule 1, part 6 of the partnering agreement states "The minutes of the meeting shall be recorded and subsequently signed by the Officers, including the Chairperson of the Board".

This FOI request is for the minutes of the Partnering Board for the last 12 months (which for the purposes of clarity is from 18th May 2014 to the 17th May 2015).

Yours faithfully,

John Brace

InfoMgr, FinDMT, Wirral Metropolitan Borough Council

5 Attachments

Good Afternoon

 

Thank you for your recent request made under the Freedom of Information
Act. Please find Wirral Borough Council’s responses alongside your
questions below.

 

With reference to the name of the attendees, the Council has in part
relied on section 40(2) of the Freedom of Information Act 2000. The
Council can place

reliance on this section when disclosure of the information requested may
breach The Data Protection Act 1998.

 

The legislation specifies that Data Controllers, such as the Council, have
to comply with the 8 Data Protection principles.

 

The first principle, which is set out in Schedule 1 of the Act stats that
a Personal Data may only be processed where it is fair and lawful to do so
and where one of the conditions set out in Schedule 2 are satisfied. I do
not believe that any of the conditions in Schedule 2 are met.

 

To advise you further I have detailed Schedule 2 below:-

 

SCHEDULE 2 - CONDITIONS RELEVANT FOR PURPOSES OF THE FIRST PRINCIPLE:

 

PROCESSING OF ANY PERSONAL DATA

 

1. The data subject has given his consent to the processing.

 

2. The processing is necessary-

 

(a) for the performance of a contract to which the data subject is a
party, or

 

(b) for the taking of steps at the request of the data subject with a view
to entering into a contract.

 

3. The processing is necessary for compliance with any legal obligation to
which the data controller is subject, other than an obligation imposed

by contract.

 

4. The processing is necessary in order to protect the vital interests of
the data subject.

 

5. The processing is necessary-

 

(a) for the administration of justice,

 

(b) for the exercise of any functions conferred on any person by or under
any enactment,

 

(c) for the exercise of any functions of the Crown, a Minister of the
Crown or a government department, or

 

(d) for the exercise of any other functions of a public nature exercised
in the public interest by any person.

 

6. - (1) The processing is necessary for the purposes of legitimate
interests pursued by the data controller or by the third party or

parties to whom the data are disclosed, except where the processing is
unwarranted in any particular case by reason of prejudice to the rights

and freedoms or legitimate interests of the data subject.

 

The Council has had regard to the legal precedent for the non-disclosure
of this information made on 7th February 2014 by Lord Justice Moses in the
Court of Appeal (Civil Division) in the case of Edem v. The Information
Commissioner & The Financial Services Authority (FSA) (Case No:
C3/2013/0791). The case involved the requested disclosure of the names of
three junior members of staff who had been involved in the handling of Mr
Edem’s complaint against the FSA regarding their regulation of Egg PLC.

 

In his judgement, Lord Justice Moses stated:

 

9. There is no dispute but that disclosure of the names would be
“processing” within s.1 of the Data Protection Act 1998. Nor was there any

dispute but that the names were data.

 

[…]

 

12. It seems to me beyond question that those living individuals could be
identified from a combination of their names and the documents emanating

from the Financial Services Authority which show that they were working
there in the capacity described by Rosalind Leaphard.

 

13. There is ample authority in the Court of the Justice of the European
Union that a person’s name, in conjunction with job-related information,
is their personal data. In Criminal Proceedings against Lindqvist
(C-101/01, [2003] ECR 1-12971) the court stated:-

 

“The term personal data used in Article 3.1 of Directive 95/46 covers,
according to the definition in Article 2(a) thereof, any information
relating to an identified or identifiable natural person. The term
undoubtedly covers the name of a person in conjunction with his telephone
co-ordinates or information about his working condition or hobbies.”

 

In Commission v Bavarian Lager (C-28/08 [2010] ECR 1-6055,) the Court
states:-

 

“[68]. It should be noted that in paragraph 104 the judgment under appeal,
the General Court, in examining Article 2(a) Regulation No. 45/2001, that
is to say the definition of the concept of single ‘personal data’,
correctly held that surnames and forenames may be regarded as personal
data.”

 

The Council is therefore adhering to this ruling and refusing this aspect
of your request due to the seniority of the individuals in question and
the fact that they do not hold public facing jobs. There is therefore an
expectation that their privacy would be upheld.

 

You have the right under Section 17 of the Act to ask for an internal
review in respect of this refusal of your request for information. This
should be addressed to:

Information Manager

Legal and Member Services

Town Hall

Brighton Street

Wallasey

CH44 8ED

[1][Wirral Borough Council request email]

 

If you are dissatisfied with the result of your internal review, you also
have the right to complain to the Information Commissioner, whose address
is

The Information Commissioner’s Office,

Wycliffe House,

Water Lane,

Wilmslow,

Cheshire SK9 5AF

[2]www.ico.gov.uk

 

I hope this information is of interest to you.

 

Kind regards,

 

Sent on behalf of

 

Tracy O'Hare

Information Management

Transformation and Resources

Wirral Council

 

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.

[3]cid:image002.jpg@01D066DD.D7571B40

 

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 'Minutes of Partnering Board meetings with Biffa Waste Services Limited'.

Thank you for responding to my FOI request with the minutes of the Partnering Board meetings with Biffa Waste Services Limited.

I will first point out that page 2 of the March 2015 meeting, see https://www.whatdotheyknow.com/request/2... has a vertical line obliterating many of the words on the page. I hope you can provide a replacement page 2 which reveals the text that this line has obliterated.

This internal review request is in relation to Wirral Council's refusal to divulge the name of some of the attendees (not just in the list of who is present but in the text of the minutes themselves).

You refer in your response to:

"Edem v. The Information Commissioner & The Financial Services Authority (FSA) (Case No: C3/2013/0791)"

which you describe as

"The case involved the requested disclosure of the names of three junior members of staff who had been involved in the handling of Mr Edem’s complaint against the FSA regarding their regulation of Egg PLC."

You also state:

"The Council is therefore adhering to this ruling and refusing this aspect of your request due to the seniority of the individuals in question and the fact that they do not hold public facing jobs. There is therefore an
expectation that their privacy would be upheld."

Firstly, the members of staff at Wirral Council (or at Biffa Waste Services Limited) who are involved in the Partnering Board are not junior staff, as was the case in Edem v. The Information Commissioner & The Financial Services Authority (FSA) (Case No: C3/2013/0791) and a number of them have public facing jobs.

I will start with one of the names stated in my FOI request who used to work for Wirral Council called Tara Dumas. Before she left the employment of Wirral Council she regularly wrote reports for committees of Wirral Council that met in public, with the most recent being the "Impact of the 2013 £1m street cleansing budget option" report that was considered at the Regeneration and Environment Policy and Performance Committee meeting of the 3rd February 2015.

Her post of Senior Manager (Waste and Environmental Services) is graded at EP09 level (salary level of between £47,444 - £50,057). It is a politically restricted post. As the person who has this role writes reports that are published on Wirral Council's website a week before meetings, which include their contact details I dispute the claim by Wirral Council that she does not hold a "public facing job" and also point out the argument below that as she was a member of the Partnering Board that according to ICO guidance this led to her job being a "public facing job".

On page 3 of the December 2014 minutes her name is blacked out (MS stands for Mark Smith and RE for Roger Edwards):

"MS advised <blacked out> will be leaving Wirral mid-March as she has been successful at obtaining at new job at Trafford Council. Both MS and RE noted their appreciation of all the hard work <blacked out> has carried out in her current role.

MS advised in terms of <blacked out's> replacement he is looking at a number of resource options and will update Biffa once some decisions have been made."

I have read Edem v. The Information Commissioner & The Financial Services Authority (FSA) (Case No: C3/2013/0791) and will again point out that this was in relation to the names of junior staff. That case refers to the "Information Commissioner’s Office Data Protection Technical Guidance".

The Information Commissioner's Office has guidance on its website titled "Requests for personal data about public authority employees", see https://ico.org.uk/media/for-organisatio... .

I quote from that guidance:

17 Seniority
"It is reasonable to expect that a public authority would disclose more information relating to senior employees than more junior ones. Senior employees should expect their posts to carry a greater level of accountability, since they are likely to be responsible for major policy decisions and the expenditure of public funds. However, the terms ‘senior’ and ‘junior’ are relative. It is not possible to set an absolute level across the public sector below which personal information will not be released; it is always necessary to consider the nature of the information and the responsibilities of the employees in question."

and

18 Public facing roles
"It may also be fair to release more information about employees who are not senior managers but who represent their authority to the outside world, as a spokesperson or at meetings with other bodies. This implies that the employee has some responsibility for explaining the policies or actions of their
authority; it would not apply simply because an employee deals with enquiries from the public or sends out material produced by others. "

Therefore any Wirral Council employee (including Tara Dumas) at the Partnering Board meeting with Biffa Waste Services Limited would be deemed by the Information Commissioner's Office to have a public facing role. The reason the employee's names were not divulged in Edem v. The Information Commissioner & The Financial Services Authority (FSA) was because these junior officials did not have a public facing role. As a result of the above I request that the minutes are supplied, including the names and initials of all Wirral Council employees.

The guidance refers to also covers FOI requests which contain information about employees who are not public sector employees but in this case employees of Biffa Waste Services Limited (see section 11).

The name of at least one of the Biffa Waste Service Limited employees on the Partnering Board is already in the public domain in the minutes of the Regeneration and Environment Policy and Performance Committee of the 3rd February 2015, see http://democracy.wirral.gov.uk/mgAi.aspx... (Gary Robinson).

Therefore in answer to the question posed in ICO's guidance section 11 "Therefore, the first
question to answer in deciding whether employee information is exempt under section 40(2) is, would it be fair to disclose it?" my view is that in relation to Gary Robinson the answer would be yes as his name is already in the public domain.

For clarity the condition in Schedule 2 of the Data Protection Act 1998 that applies here (and possibly to the other Biffa Waste Services Limited employees who are part of the Partnering Board too) is:

"3. The processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract."

The legal obligation in this case being on Wirral Council to comply with the Freedom of Information Act 2000 c.36 .

I look forward to reading your response to this internal review request with interest.

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

Yours faithfully,

John Brace

Corrin, Jane, Wirral Metropolitan Borough Council

1 Attachment

 

Dear Mr. Brace,

 

Thank you for your further email requesting an Internal review of
Council’s response to your enquiry.  Please take the contents of this
email as a response to your request for an Internal Review.

 

I have checked the status of page 2 of the March 2015 meeting and it
appears the issue lies with how the document was published on the WDTK
website. If you click and open the document as HTML from the website, I
believe you will be able to read the document.

 

I have considered the other points you raised in your email and I consider
that the refusal to divulge certain names held within the minutes, is
compatible with the case involving "Edem v. The Information Commissioner &
The Financial Services Authority (FSA) (Case No: C3/2013/0791)". 

 

As the reviewing officer I believe that there would be an expectation that
the privacy of these individuals would be upheld and they would not be
named on a document, to be released into the public domain, as a result of
an information request.  I have had regard to the ICO advice entitled
"Requests for personal data about public authority employees".  I have
also taken into consideration the fact that the Council publishes a
dataset providing information on Senior Salaries in Wirral Council, to
meet the Local Government Transparency Code 2014.  The code requires us to
publish details of salaries of £50,000 or above.   

 

With regard to seniority of the Waste Management and Streetscene services,
the Head of Service is Mark Smith who is the senior officer and the
spokesperson for the Authority on matters relating to Streetscene services
and waste.    

 

I uphold the original decision which was to withhold some redacted names
from the requested minutes, relying on Section 40(2) of The Freedom of
Information Act 2000.

You have the right to complain to the Office of The Information
Commissioner if you remain dissatisfied with this response to your request
for an Internal Review. 

Contact details can be found here:
[1]https://ico.org.uk/global/contact-us/

 

Yours sincerely

Jane Corrin

Information and Central Services Manager - Legal and Member Services

Wirral Council

Transformation and Resources

Wallasey Town Hall Brighton Street

Wirral

Merseyside

CH44 8ED

 

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.

[2]cid:image002.jpg@01D066DD.D7571B40

 

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1. https://ico.org.uk/global/contact-us/

M D Ryan left an annotation ()

My goodness, such a lot of work involved here trying to obtain information.
Sometimes it really is a minefield trying to extract information. However, on the other hand, it can't all be negative because local government should be democratic. But what does that mean exactly? I suppose we better ask politicians! (Some would prefer NOT to answer that type of question ......... I suppose!)
And they say persistence pays off? Only sometimes!
Keep going!