minutes of the Standards Working Group meeting of the 17th December 2013

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 authority would like to / has responded by postal mail to this request.

Dear Wirral Metropolitan Borough Council,

Please could you supply the minutes of the Standards Working Group meeting held on the 17th December 2013?

Thank you.

Yours faithfully,

John Brace

Corrin, Jane, Wirral Metropolitan Borough Council

Dear Mr Brace,

I refer to your request for information which was contained in your email
of 1 January. The request was as follows:-

 

Dear Wirral Metropolitan Borough Council,

Please could you supply the minutes of the Standards Working Group
meeting held on the 17th December 2013?

 

I consider that the information you have requested is exempt information
under section 36 of the Freedom of Information Act, 2000. Section 36
provides an exemption, if disclosure would or would be likely to;-

 

(b) inhibit the free and frank provision of advice or exchange of views;
or

(c) otherwise prejudice the effective conduct of public affairs

 

Section 36 requires the qualified person to give their reasonable opinion
that disclosure would or would be likely to cause the types of prejudice
or inhibition listed above. It is a qualified exemption and subject to the
public interest test. As the qualified person, I have had regard to
guidance issued by the Information Commissioner’s Office, “prejudice to
the effective conduct of public affairs (section 36), Version 2, 22 March
2013.  The Standards Working Group is not a formal committee or
sub-committee of the Council, it has advisory status only.  It is my
reasonable opinion that disclosure of the requested information, namely
the minutes of the Standards Working Group meeting held on 17 December
2013, would inhibit the free and frank provision of advice or the exchange
of views. The members of the Group are deliberating on matters relating to
the Council’s Ethical Framework and considering changes to the framework.,
which are ongoing important matters requiring a ‘safe space’ for
deliberation. I also consider that in my reasonable opinion, that if the
minutes of the  Group were to be disclosed, there would likely to be  a
“chilling effect” which would  inhibit the free and frank provision of
advice or  exchange of views between members of the Group, and disclosure
would undermine the ability of the members of the Group and those advising
the Group to express themselves openly.

 

I am required to carry out a public interest in connection with the
section 36 exemption. I have had regard to the following:-:

 

Public interest factors in favour of maintaining the exemption

 

o Disclosure would make it more likely  that the persons providing
advice or exchanging views would be unwilling to do so in future
o Disclosure would make people less likely to engage in discussion
(whether oral or written) as part of the deliberation process
o Disclosure would distort or restrain that discussion
o  

Public interest factors in favour of disclosure

o Transparency in the process of the provision of advice and exchanging
views

 

I consider that the public interest test in maintaining the exemption
outweighs the public interest in disclosure of the minutes. I consider it
is crucial that members of the Standards Working Group are able to take
part in an exchange of views , when important  matters concerning the
Council’s Ethical Framework  are being discussed. There is a strong public
interest in ensuring the Council is able to do this, otherwise  there
would be likely  to be inhibition under Section 36 (2) (b). Reports from
the Standards Working Group would be considered by the Council’s

Standards and Constitutional Oversight Committee, which is subject to the
access to information requirements.

 

I am therefore refusing your request for information under the exemption
contained in Section 37 (2) (b) of the Freedom of Information Act 2000.

You have the right to request an internal review, which should be
addressed to the Information and Central Services Manager, Wallasey Town
Hall, Brighton Street, Wallasey,  CH44 8ED,  email,
[1][email address]. 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

 

Tel -0303 123 113

 

Sent on behalf of

Surjit Tour

Head of Legal and Member Services and Monitoring Officer

Department of Transformation and Resources

Wirral Borough Council

 

Email: [3][email address]

 

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3. mailto:[email address]
mailto:[email address]

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 the Standards Working Group meeting of the 17th December 2013'.

My request for an internal review is on six grounds.

1) The minutes of the Standards Working Group have been provided to an FOI request previously, without claiming a FOI exemption (see Paul Cardin's request here https://www.whatdotheyknow.com/request/m... ) .

2) Agenda items 3 (Disclosing Information Reports Under the New Standards Regime) and agenda item 4 (Review of the New Standards Regime) of the meeting referred to in 1) both included "deliberating on matters relating to the Council’s Ethical Framework and considering changes to the framework" yet was also published on Wirral Council's website at http://democracy.wirral.gov.uk/documents... (see Standards Committee meeting agenda of 18th March 2013 http://democracy.wirral.gov.uk/ieListDoc... .

3) Surjit Tour is also the Monitoring Officer and therefore in this capacity would be advising the Standards Working Group meeting of the 17th December 2013. He states that the minutes cannot be supplied because they "would inhibit the free and frank provision of advice". As he is the one advising the Standards Working Group this represents a conflict of interest. There are two qualified persons at Wirral Council able to give an opinion on a s.36 exemption, Surjit Tour and the Chief Executive Graham Burgess. Due to the conflict of interest outlined, it should have been the Chief Executive giving his opinion on the s.36 exemption not Surjit Tour.

4) It is stated "there would likely to be a “chilling effect” which would inhibit the free and frank provision of advice or exchange of views between members of the Group, and disclosure would undermine the ability of the members of the Group and those advising the Group to express themselves openly." As outlined in the minutes referred to in point 2, Members of the Standards Working Group are not referred to by name in the minutes, therefore it is not possible from the minutes to ascertain the views of individuals in the Group. The only person referred to in the minutes of the previous meeting (by job description) is Surjit Tour. Due to the conflict of interest in giving a reasonable opinion that a s.36 exemption applies in relation to his own advice, if a s.36 exemption is claimed by Wirral Council in relation to this FOI request, it should have come from the other qualified person (the Chief Executive).

5) It is stated in the response that "Reports from the Standards Working Group would be considered by the Council’s Standards and Constitutional Oversight Committee, which is subject to the access to information requirements." The next Standards and Constitutional Oversight Committee following the Standards Working Group on the 17th December 2013 was the 6th January 2014. However a report from the Standards Working Group of the 17th December 2013 was not on the agenda of that meeting. The next Standards and Constitutional Oversight Committee after that was the 6th February 2014, however that meeting has been cancelled and postponed to the 24th February 2014. It is therefore wrong to imply that a report of the Standards Working Group meeting forms part of the agenda of the next Standards and Constitutional Oversight Committee meeting.

6) Only qualified persons (the two at Wirral Council are Surjit Tour and Graham Burgess) can give an opinion on a s.36 exemption. The opinion given finishes with "Sent on behalf of Surjit Tour", therefore it is unclear whether it is his opinion or the opinion of the person who is sending this communication on his behalf. If it is the latter then the person giving the opinion is not one of the two qualified persons to do so rendering it invalid.

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

InfoMgr, FinDMT, Wirral Metropolitan Borough Council

Good Afternoon

 

Further to your request for an internal review, I have been informed that
a response has been sent to you via post today from Chief Executive Graham
Burgess. As the exemption used in response to your original Freedom of
Information request was Section 36, Mr Burgess was the only qualified
officer who could carry out the review.

 

I apologise for the delay in sending this response to you, and appreciate
your patience in this matter.

 

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.

 

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ScarletPimpernel left an annotation ()

It's seems strange Wirral Council would send me a response to the internal review of the Freedom of Information Act request by post (in fact the first they've ever done that in response to an FOI request!). I await Graham Burgess' letter with interest!

Dave rimmer left an annotation ()

So do we all Mr Pimpernel, so do we all. I assume you will let us know the outcome. I would also assume that Burgess and Tour do not want the reply posting on this or any other site, hence a letter via snail mail.

ScarletPimpernel left an annotation ()

Thanks for that annotation Dave, I received the letter a few minutes ago (which is four pages long). I'll type it up, scan in the letter and post it on my blog. Once I've done that I'll link to it from here.

ScarletPimpernel left an annotation ()

There's a copy of the Chief Executive's internal review on my blog here http://johnbrace.com/2014/03/22/wirral-c... if anyone is interested in it.

ScarletPimpernel left an annotation ()

(Wirral Council logo)

Graham Burgess
Chief Executive

Town Hall
Brighton Street
Wallasey
Wirral
Merseyside CH44 8ED
Tel: 0151-691 8589
Fax: 0151-691 8583
Email: grahamburgess@wirral.gov.uk

date 21 March 2014

to Mr J Brace
Jenmaleo
134 Boundary Road
Bidston
Wirral
CH43 7PH

my ref GB0075.DOC/DC/35.7
your ref

Dear Mr Brace,

I refer to your request for an Internal Review.

I have reviewed your request and also considered the information in question, namely the minutes of the Standards Working Group relating to this meeting held on 17 December 2013.

I am the Chief Executive and the Reviewing Officer when an FOI request is refused and the Council has relied on Section 36. As such I have taken each of the points you have raised and addressed them below:-

1) The minutes of the Standards Working Group have been provided to an FOI request previously, without claiming a FOI exemption (see Paul Cardin’s request here

https://www.whatdotheyknow.com/request/m...

Response – Each request is reviewed and answered in accordance with the Freedom of Information and any other associated legislation. If a document is already available in the public domain, then the Council will signpost the requestor to it. The report requested above by Mr. Cardin was already in the public domain.

2) Agenda items 3 (Disclosing Information Reports Under the New Standards Regime) and agenda item 4 (Review of the New Standards Regime) of the meeting referred to in 1) both included “deliberating on matters relating to the Council’s Ethical Framework and considering changes to the framework” yet was also published on Wirral Council’s website at http://democracy.wirral.gov.uk/documents... (see Standards Committee meeting agenda of 18th March 2013 http://democracy.wirral.gov.uk/ieListDoc....

Response – The information contained within the documentation which has been refused to you is not identical in nature to the information which was published at the hyperlinks you have highlighted above.

Once the Standards Working Group has completed its work, consideration will be given to the disclosure of the Minutes. The Working Group is currently undertaking important work and disclosure of the Minutes at this time would likely to have a “chilling effect” which “would inhibit the free and frank provision of advice”.

3) Surjit Tour is also this Monitoring Officer and therefore in this capacity would be advising the Standards Working Group meeting of the 17th December 2013. He states that the minutes cannot be supplied because they “would inhibit the free and frank provision of advice”. As he is the one advising the Standards Working Group this represents a conflict of interest. There are two qualified persons at Wirral Council able to give an opinion on a Section 36 exemption, Surjit Tour and the Chief Executive, Graham Burgess. Due to the conflict of interest outlined, it should have been the Chief Executive giving his opinion on the Section 36 exemption not Surjit Tour.

Response – I do not agree that Mr Tour had a conflict of interest when responding to your enquiry. As the Monitoring Officer it was appropriate and correct that he should be the person to answer and decide to rely on Section 36. It is then my role, as the Chief Executive, to act as Internal Reviewer in this particular case.

4) It is stated “there would likely to be a “chilling effect” which would inhibit the free and frank provision of advice or exchange of views between members of the Group, and disclosure would undermine the ability of the members of the Group and those advising the Group to express themselves openly.” As outlined in the minutes referred to in point 2, Members of the Standards Working Group are not referred to by name in the minutes, and therefore it is not possible from the minutes to ascertain the views of individuals in the Group. The only person referred to in the minutes of the previous meeting (by job description) is Surjit Tour. Due to the conflict of interest in giving a reasonable opinion that a Section 36 exemption applies in relation to his own advice, if a Section 36 exemption is claimed by Wirral Council in relation to this FOI request, it should have come from the other qualified person (the Chief Executive).

Response – As mentioned in my response to point 3, I do not agree with your view that Mr. Tour had a conflict of interest in giving a reasonable opinion.

5) It is stated in the response that “Reports from the Standards Working Group would be considered by the Council’s Standards and Constitutional Oversight Committee, which is subject to the access to information requirements.” The next Standards and Constitutional Oversight Committee following the Standards Working Group on the 17th December 2013 was the 6th January 2014. However a report from the Standards Working Group of the 17th December 2013 was not on the agenda of that meeting. The next Standards and Constitutional Oversight Committee after that was the 6th February 2014, however that meeting has been cancelled and postponed to the 24th February 2014. It is therefore wrong to imply that a report of the Standards Working Group meeting forms part of the agenda of the next Standards and Constitutional Oversight Committee meeting.

Response – Your comments have been noted.

6) Only qualified persons (the two at Wirral Council are Surjit Tour and Graham Burgess) can give an opinion on a Section 36 exemption. The opinion given finished with “Sent on behalf of Surjit Tour”; therefore it is unclear whether it is his opinion or the opinion of the person who is sending the communication on his behalf. If it is the latter then the person giving the opinion is not one of the two qualified persons to do so rendering it invalid.

Response – The reply contains the opinion of Mr. Tour; however the reply was sent from the email address of Jane Corrin and copied to the Council’s central FOI email address for monitoring purposes. As you have rightly stated it is only the Monitoring Officer or the Chief Executive of the Council who can make a decision with regards to the application of Section 36.

After giving due consideration to the request you made, the original response from Mr. Tour and als the points you raise in your request for an Internal Review; I have concluded the following:-

I concur with Mr Tour that the information you requested is exempt information by virtue of Section 36 of The Freedom of Information Act 2000. This is my considered and reasonable view as Section 36 can be relied on if disclosure would/would be likely to;-

(b) Inhibit the free and frank provision of advice or exchange of views; or

(c) Otherwise prejudice the effective conduct of public affairs

As you are aware, Section 36 requires the qualified person to give their reasonable opinion that disclosure would or would be likely to cause the types of prejudice or inhibition listed above. This was clearly stated in the original response you received. Guidance was also considered from the Information Commissioner’s Office, “prejudice to the effective conduct of public affairs (section 36), Version 2, 22 March 2013.

As was pointed out in the original response, the Standards Working Group is not a formal committee or sub-committee of the Council, it has advisory status only. I agree with the view taken by the Monitoring Officer that releasing the minutes of the Standards Working Group meeting of 17th December 2013, would indeed inhibit the free and frank provision of advice or the exchange of views.

The Group were considering and debating the Council’s Ethical Framework and given views as to whether any changes should be put in place with regard the framework. Members of such groups must be, I believe, given a ‘safe space’ for deliberation of these important issues.

My reasonable opinion is that the minutes should not be disclosed and I need to be satisfied, as Chief Executive, that there exists the opportunity for free and frank provision of advice/exchange of views within the Group to ensure sound decision making. I am of the opinion that to disclose the minutes would undermine the ability of members involved to engage in a free and frank discussion on important issues such as the Council’s Ethical Framework. I have considered the public interest test factors, given in the original answer in favour of disclosure and in favour of none disclosure. Having considered this test afresh, it is my considered and reasonable opinion that the reasons/argument previously articulated are valid and robust. I am satisfied that the public interest test in maintaining the exemption outweighs the public interest for disclosure.

If you remain dissatisfied with this response, then you have the right to complain to the Information Commissioner, whose address is

Information Commissioner’s Office.
Wycliffe House,
Walter Lane,
Wilmslow,
Cheshire SK9 5AF
www.ico.gov.uk

Yours sincerely

(signature)

Graham Burgess
Chief Executive