Can I please request a copy of the final report pertaining to the Terms of Reference contained within this Freedom of Information Act 2000 request.
I understand that a draft was completed in April 2015 and returned to Mr.Warren by senior officers of Wirral Council for him to consider additional information.
I am assuming that in the intervening 16 months he has been able to complete this report .
Sincerely, Martin Morton
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 'Nick Warren Investigation Report'.
A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/n...
Dear Mr. Morton,
Please see attached document as Council’s response to your request for an
Records and Information Manager - Legal and Member Services
0151 691 8645
Transformation and Resources
Wallasey Town Hall Brighton Street
Visit our website: www.wirral.gov.uk
Dear Mr Morton,
ICO Case Reference: FS50649341
I refer to your complaint to the Information Commissioner’s Office
(“ICO”). The Council has revisited your request for information dated 5
August 2016, and has decided to amend its response, as follows:-
I refer to your request for information dated 5 August 2016, which was as
Can I please request a copy of the final report pertaining to the Terms of
Reference contained within this Freedom of Information Act 2000 request.
I understand that a draft was completed in April 2015 and returned to
Mr.Warren by senior officers of Wirral Council for him to consider
I am assuming that in the intervening 16 months he has been able to
complete this report .
You requested an internal review on 6 September, as the Council had not
responded to your original request. The Council sought to rely on the
exemption contained in Section 36 (b) (i) and (ii) of the Freedom of
Information Act ,2000 (“FOIA”) in its response dated 3 October 2016. I
consider that another exemption under FOIA as well as that contained in
Section 36 applies to your request for information.
I consider that some of the information you have requested is personal
data and exempt from disclosure under Section 40(2) and (3) of the Freedom
of Information Act 2000.
‘Personal data’ is defined in Section 1 of the Data Protection Act 1998,
o “personal data” means data which relate to a living individual who can
(a)from those data, or
(b)from those data and other information which is in the possession of, or
is likely to come into the possession of, the data controller.
Section 40 (2) and (3) of FOIA provides as follows:-
(2) Any information to which a request for information relates is also
exempt information if—
(a)it constitutes personal data which do not fall within subsection (1),
(b)either the first or the second condition below is satisfied.
(3)The first condition is—
(a)in a case where the information falls within any of paragraphs (a) to
(d) of the definition of “data” in section 1(1) of the M1Data
Protection Act 1998, that the disclosure of the information to a member of
the public otherwise than under this Act would contravene—
(i)any of the data protection principles.
I have had regard to guidance produced by the ICO, “Personal information
(section 40 and regulation 13), Version:1.4 20160718.
I refer to paragraph 52 of that guidance which states,” The public
authority must consider the nature of the information and weigh up the
level of distress and/or damage likely to be caused, as the higher this
is, the more likely that the disclosure would be unfair. The public
authority must also be satisfied that the adverse consequences would
result from disclosure of the personal data; it must be possible to show
that there would be a connection between the disclosure and the adverse
I consider that the first condition set out in Section 40 (3) of FOIA is
satisfied in that disclosure of part of the requested information would
contravene the first data protection principle, that personal data shall
be processed fairly and lawfully, and shall not be processed unless at
least one of the conditions in Schedule 2 of the Data Protection Act 1998
is met. I consider that none of the conditions in Schedule 2 would be
met, the most significant condition being that contained in Schedule 2,
condition 6 (1) which is in the following terms:-
“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”
I refer to the case of Goldsmith International Business School v The
Information Commissioner and The Home Office [2014[ UKUT 0563 (AAC) which
is a decision of the Upper Tribunal and binding on the lower courts. Judge
Wikeley referred to a number propositions derived from case law which he
considered “may well prove a useful road map for the Commissioner and
other First Tier Tribunals when seeking to chart a path through the
thicket of issues thrown up by Condition 6 (1) of Schedule 2 in other
The first proposition is as follows:-
Proposition 1: Condition 6 (1) of Schedule 2 to the DPA (Data Protection
Act) requires three questions to be asked:-
(i) Is the data controller or the third party or parties to
whom the data are disclosed pursuing a legitimate interest or interests ?
(ii) Is the processing involved necessary for the purposes of
(iii) Is the processing unwarranted in this case by reason of
prejudice to the rights and freedoms or legitimate interests of the data
I consider that you as a third party, (ie a member of the public) are
pursuing a legitimate interest and that the processing involved would be
necessary for the purposes of those interests. However, having carried out
a balancing test under stage iii above, I consider that the processing
would be unfair and unwarranted in this case by reason of prejudice to the
rights and freedoms of the data subjects and that adverse consequences
would result from disclosure of the personal data.
Section 40(2) is an absolute exemption and not subject to the public
interest test contained in qualified exemptions under FOIA.
I am therefore refusing part of your request for information which
consists of personal data on the basis that the absolute exemption
contained in Section 40 (2) and (3) (a) of FOIA applies.
I refer to the response I gave as the authorised person in my email of 3
October 2016, which I have reproduced below:-
Thank you for your request for an internal review. Please accept Council’s
apologies for not responding to your request for information in a timely
Your request asked for:
“Can I please request a copy of the final report pertaining to the terms
of Reference contained within this Freedom of Information Act 2000
request. I understand that a draft was completed in April 2015 and
returned to Mr. Warren by senior officers of Wirral Council for him to
consider additional information. I am assuming that in the intervening 16
months he has been able to complete this report.”
Wirral Council is unable to disclose a copy of the report and has relied
on the exemption contained within Section 36 of The Freedom of Information
Act 2000 to refuse your request. Section 36 can be relied on if in the
reasonable view of the qualified person, it is appropriate to do so. I am
the qualified person for the Council in my role as Monitoring Officer.
Your request is refused as I believe that disclosure would inhibit-
(i) the free and frank provision of advice, or
(ii) the free and frank exchange of views for the purpose of deliberation.
I have had regard to the guidance issued by the ICO, when reaching this
opinion - ” Prejudice to the effective conduct of public affairs”, version
I consider that if the information requested were disclosed, then the
content of discussions by senior officers and other 3rd parties,
concerning issues of appropriate gravity would be fundamentally
undermined. My opinion is that such discussions would have been inhibited
had those individuals not believed that their commentary and opinions
would be kept confidential.
Disclosure of the information contained within the report would lead to a
less candid exchange of view and ideas. The likelihood of prejudice is
significant and weighty, inhibiting the provision of advice and the free
and frank exchange of views. This may also impair the quality of decision
making of the Council and have a ‘chilling effect’. Paragraph 49 of the
guidance states “If the issue in question is still live, arguments about a
chilling effect on those ongoing discussions are likely to be most
My opinion is that it is also relevant to have regard to the sensitivity
of the information in question and I am satisfied that the qualified
exemption contained in Section 36 (b) (i) and (ii) are engaged, having
regard to the issues still being live and of a sensitive nature.
Where the Council finds that the qualified exemption is engaged then it is
necessary to consider the test under s.2(2)(b),of FOIA, namely that “in
all the circumstances of the case, the public interest in maintaining the
exemption outweighs the public interest in disclosing the information”.
As the qualified person I have weighed these factors and believe that
Public interest factors against maintaining the exemption are:-
i. Public interest in the promotion of transparency and accountability in
relation to the activities of public authorities
Public interest factors for maintaining the exemption are:-
i. Reduction of the ‘chilling effect’ when matters of particular
sensitivity are being discussed
ii. Reduces the likelihood of inhibition of future discussion in respect
of issues, which are still live and of a sensitive nature.
I am therefore refusing your request for information on the basis that the
exemptions contained in Section 36 b) (i) and (ii)
and Section 40 (2) and (3) of FOIA apply. I have copied this amended
response to the ICO.
and sent on behalf of
Assistant Director: Law and Governance
and Monitoring Officer
Wirral Metropolitan Borough Council
Law and Governance
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
Dear Mr Morton,
I refer to the ICO decision notice dated 27 April 2017. I enclose the
information required to be disclosed . This response has been copied to
Law and Governance
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