Nick Warren Investigation - Terms of Reference etc;

Martin Morton made this Freedom of Information request to Wirral Metropolitan Borough 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 Wirral Metropolitan Borough Council,

The following press report dated 8th January 2015 states that Nick Warren is to "lead an enquiry into the way a group of whistleblowers have been treated by the Council - and decide whether they should receive compensation.Nicholas Warren will carry out the review once the scope and terms of reference of the inquiry has been agreed by Council leader Phil Davies.The move comes after Birkenhead MP Frank Field met with the authority's now retired Chief Executive Graham Burgess in November demanding that a sum of £48,000 in compensation given to an unnamed officer should also be paid to the whistleblowers".

http://www.wirralglobe.co.uk/news/117112...

Can I please request the following information :
a) the terms of reference for the above inquiry
b) details of financial/contractual arrangements between Wirral Council and Nicholas/Nick Warren which relate to directly to this inquiry (including any provisions for external legal advise)
c) the specific legal provisions under Local Government Act 1972 s101 by which Mr.Warren is potentially able to make decisions about compensation payments by Wirral Council to whistleblowers (according to Frank Field Mr.Warren's "findings will be binding on both parties")
d) the specific legal provisions under Local Government Act s101 by which Frank Field MP can "demand" payments be made to whistleblowers by Wirral Council
e) the specific legal provisions under Local Government Act s101 by which Frank Field MP can appoint/recommend Nick Warren to undertake this inquiry
f) Any declarations realting to the inquiry made by Mr.Warren/Mr.Field relating to prior affiliation (publicly acknowledged by both Mr.Field and Council leader Phil Davies) and/or conflict of interest
g) How the findings of the inquiry are to be publicly reported

Yours faithfully,

Martin Morton

Dear Wirral Metropolitan Borough Council,

Can this FOI request please be subject to internal review.
https://www.whatdotheyknow.com/c/9xilcw5...

Yours faithfully,

Martin Morton

Corrin, Jane, Wirral Metropolitan Borough Council

Dear Mr. Morton,

Thank you for your request for information detailed below and apologies
for the delay in responding.  Please take this email as a response to your
request for an Internal Review. 

 

In relation to c), d), e) and g) below, the Council has no recorded
information to supply to you.

 

In relation to a), b) and f), the Council is unable to provide any
information and has relied on the exemption contained within Section 36 of
The Freedom of Information Act 2000.  This exemption can be relied on, if
in the reasonable view of the qualified person, it is appropriate to do
so.  As the qualified person I am refusing your request for information,
as requested at a), b) and f) below 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.

In reaching this opinion, I have had regard to the guidance issued by the
Information Commissioner’s Office (ICO)” Prejudice to the effective
conduct of public affairs”, version 2.

I consider that if the information requested were required to be
disclosed, the conduct of discussions by senior officers of the Council
concerning issues of appropriate gravity would be fundamentally
undermined. Such discussions would have been inhibited had those senior
officers not believed that they would be kept confidential. The prospect
of disclosure of this information 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, may 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 convincing”.

It is also relevant to have regard to the sensitivity of the information
in question. I am satisfied as the qualified person, 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”. I
have weighed these factors and believe that Public interest factors
against maintaining the exemption are:-

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:-

Reduction of the ‘chilling effect’ when matters of particular sensitivity
are being discussed
Reduces the likelihood of inhibition of future discussion in respect of
issues, which are still live and of a sensitive nature.

I consider that the public interest in maintaining the exemption outweighs
the public interest in disclosing the information and I am therefore
refusing your request for information under Section 17 of FOIA on the
basis that the exemptions contained in Section 36 (2) (b )(i) and (ii) and
Section 40 (2) of FOIA apply to the requested information.

 

You have the right to complain to the Office of The Information
Commissioner if you are dissatisfied with this reply to your request for
an internal review.  This can be done by using the contact details here
[1]https://ico.org.uk/global/contact-us/

 

Yours sincerely and sent on behalf of

Surjit Tour
Head of Legal & Member Services and Monitoring Officer
Department of Transformation and Resources
Wirral Metropolitan Borough Council
Town Hall
Brighton Street
Wallasey
Wirral
CH44 8ED

 

[2][email address]

 

 

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.

 

 

 

 

From: Martin Morton [[3]mailto:[FOI #262110 email]]

Sent: 06 April 2015 09:15

To: InfoMgr, FinDMT

Subject: Freedom of Information request - Nick Warren Investigation -
Terms of Reference etc;

 

Dear Wirral Metropolitan Borough Council,

 

The following press report dated 8th January 2015 states that Nick Warren
is to "lead an enquiry into the way a group of whistleblowers have been
treated by the Council - and decide whether they should receive
compensation.Nicholas Warren will carry out the review once the scope and
terms of reference of the inquiry has been agreed by Council leader Phil
Davies.The move  comes after Birkenhead MP Frank Field met with the
authority's now retired Chief Executive Graham Burgess in November
demanding that a sum of £48,000 in compensation given to an unnamed
officer should also be paid to the whistleblowers".

 

[4]http://www.wirralglobe.co.uk/news/117112...

 

 

Can I please  request the following information :

a) the terms of reference for the above inquiry

b) details of financial/contractual arrangements between Wirral  Council
and Nicholas/Nick Warren which relate to directly to this inquiry
(including any provisions for external legal advise)

c) the specific legal provisions  under  Local Government Act 1972 s101 by
which Mr.Warren is potentially able to make decisions about compensation
payments by Wirral Council to whistleblowers (according to Frank Field
Mr.Warren's "findings will be binding on both parties")

d) the specific legal provisions under Local Government Act s101  by which
Frank Field MP can "demand" payments be made to whistleblowers by Wirral
Council

e) the specific legal provisions under Local Government Act s101 by which
Frank Field MP can appoint/recommend  Nick Warren to undertake this
inquiry

f) Any declarations  realting to the inquiry made by Mr.Warren/Mr.Field
relating to prior affiliation (publicly acknowledged by both Mr.Field and
Council leader Phil Davies) and/or conflict of interest

g)  How the findings of the inquiry are to be publicly reported  

 

Yours faithfully,

 

Martin Morton

show quoted sections

References

Visible links
1. https://ico.org.uk/global/contact-us/
2. mailto:[email address]
3. mailto:[FOI #262110 email]
4. http://www.wirralglobe.co.uk/news/117112...

Dear Corrin, Jane,
Another for ICO.
Yours 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 - Terms of Reference etc;'.

Wirral Council have incorrectly applied exemption 36 to this FOIA request in an attempt to circumvent information that is in the public interest being made publicly available.
It cannot be claimed that the information requested ,especially the terms of reference for an investigation, could possibly inhibit "free and frank advice/exchange of views".
Neither can the witholding of information relating to the spending of public money
Moreover there is a conflict of interest in "the qualified person" (Surjit Tour) making the decision to withold the information as he has a personal and prejudicial interest in the wider issues relating to this request.
The witholding of this information is not in the public interest and is a further abuse of power by Wirral Council.

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

Yours faithfully,

Martin Morton

Corrin, Jane, Wirral Metropolitan Borough Council

1 Attachment

Dear Mr. Morton,

Thank you for your further email below.  The response Mr. Tour sent to you
was an Internal Review and I have copied and pasted an extract from the
substantive response, which advises that you have the right to contact the
ICO:-

 

“……….You have the right to complain to the Office of The Information
Commissioner if you are dissatisfied with this reply to your request for
an internal review.  This can be done by using the contact details 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

 

Visit our website: [2]www.wirral.gov.uk

 

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

      ‘Most Improved 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.

 

 

 

show quoted sections

Dear Corrin, Jane,

It was the ICO who asked me to contact you again and request a further internal review.Hopefully they now see fit to intervene.

Yours sincerely,

Martin Morton

ScarletPimpernel left an annotation ()

Just to be clear (as there seems to be some confusion here). If a section 36 exemption is claimed then the law states at Wirral Council only two people can decide on it.

So if a request is made and a section 36 exemption is claimed it has to be done by the Monitoring Officer (who is Surjit Tour).

If a person requests an internal review of that decision it has to be decided by the Chief Executive (Eric Robinson).

Well I say has to, the last time I requested a s.36 internal review at Wirral Council they just classed requesting an internal review as vexatious (section 14) which from their perspective meant they didn't have to bother Eric with revisiting Mr Tour's decision.

I would suggest that the problem seems to be that ICO regard Wirral Council's reply relying on the s.36 exemption as their initial response (and that there should be an internal review of that first before they can get involved) whereas for some peculiar reason (rather bizarrely) Wirral Council regard the initial s.36 decision as an internal review. Therefore they feel they don't have to respond as a challenge to an internal review goes to ICO.

This bizarre situation almost seems designed to frustrate the request.

Corrin, Jane, Wirral Metropolitan Borough Council

2 Attachments

Dear Mr. Morton,

The Council has been in touch with the ICO and given our position in
relation to this enquiry.   Please see Council’s response to your ICO
complaint below.  You asked questions listed a to g and these are listed
below, along with our responses.

a) the terms of reference for the above inquiry

Response - The Chief Executive who is the qualified person in relation to
a review when Section 36 has been applied to a request, has considered
this part of your enquiry and seeks to rely on Section 36 to withhold
these terms of reference.  The Chief Executive considers that 36 (2) (b)
(i) and (ii) are engaged and has relied on this exemption because it is
his reasonable view that it is appropriate in this case.  He believes 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.

In coming to this decision, he has had regard to the guidance issued by
your Office, ” Prejudice to the effective conduct of public affairs”,
version 2.

The original response given when relying on this exemption has been
carefully considered and the Chief Executive believes it was correct to
apply this exemption.  If the information requested were disclosed then
the conduct of discussions by senior officers of the Council concerning
issues of appropriate gravity would be fundamentally undermined.

 

It is clear to the Chief Executive that such discussions would have been
inhibited had those senior officers not believed that those discussions
would be kept confidential.  The prospect of disclosure of this
information would lead to a less candid exchange of views and ideas.   The
Council still contests that the likelihood of prejudice is significant and
weighty.  Inhibiting the provision of advice and the free and frank
exchange of views, may 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 convincing”.

 

It is also still relevant to have regard to the sensitivity of the
information in question and the Council wishes to have the exemption
contained in Section 36 (b) (i) and (ii) engaged, having regard to the
issues still being live and of a sensitive nature.

The Council did originally 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”.  The Chief Executive has revisited this, weighed the factors
and continues to hold the view that the Public interest factors against
maintaining the exemption are:-

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:-

Reduction of the ‘chilling effect’ when matters of particular sensitivity
are being discussed
Reduces the likelihood of inhibition of future discussion in respect of
issues, which are still live and of a sensitive nature.

Therefore the Council stands by its original view that the public interest
in maintaining the exemption outweighs the public interest in disclosing
the information. 

 

b) details of financial/contractual arrangements between Wirral Council
and Nicholas/Nick Warren which relate to directly to this inquiry
(including any provisions for external legal advice)

Response - There has been no remuneration paid to Mr. Warren, but please
note the review has not yet been completed. 

 

c) the specific legal provisions under Local Government Act 1972 s101 by
which Mr. Warren is potentially able to make decisions about compensation
payments by Wirral Council to whistleblowers (according to Frank Field Mr.
Warren’s "findings will be binding on
both parties")

Response – Mr Warren has not been given any decision making powers by the
Council in respect of awarding or making any compensation payments. Any
decision to pay compensation would be a matter for the Council. For the
avoidance of doubt, no decision has been made on whether any compensation
should be paid. The Council has therefore no recorded information to
supply in respect of this question.

 

d) the specific legal provisions under Local Government Act s101 by which
Frank Field MP can "demand" payments be made to
whistleblowers by Wirral Council

Response - There are no specific legal provisions under which Frank field
MP can “demand” payments to be made to whistleblowers by Wirral
Council. The Council has therefore no recorded information to supply in
respect of this question.

 

e) the specific legal provisions under Local Government Act s101 by which
Frank Field MP can appoint/recommend Nick Warren to undertake this inquiry

Response – There are no specific legal provisions under which Frank Field
MP can appoint an individual to undertake an inquiry on behalf of the
Council.  Frank Field MP is entitled to recommend an individual to
undertake an inquiry but the decision to appoint Nick Warren was made by
Wirral Council.

 

f) Any declarations relating to the inquiry made by Mr.Warren/Mr. Field
relating to prior affiliation (publicly acknowledged by both Mr. Field and
Council leader Phil Davies) and/or conflict of interest

Response – Nick Warren has been known to Frank Field MP for many years and
Councillor Phil Davies knows of Nick Warren.  There is no known conflict
of interest and nor has any conflict of interest been brought to Council’s
attention by Mr. Warren or Mr Field.

 

g) How the findings of the inquiry are to be publicly reported

Response – Given the nature of the inquiry and the issues being considered
there are a number of factors to bear in mind before a decision is made to
publish in full or a redacted version.  Issues being considered include
whether there has been any wrong doing by current or ex-employees and the
Council needs to balance all competing issues before a decision is taken
regarding publication.  At this point in time the report has not been
finalised and consideration may need to be given to such issues as a right
of reply, before a final decision can be taken on publication, whether
whole or in part.

 

Yours Sincerely

[1]cid:image004.jpg@01D116F3.3DF40000

Jane Corrin

Records and Information Manager -  Legal and Member Services

0151 691 8645

 

Wirral Council

Transformation and Resources

Wallasey Town Hall Brighton Street

Wirral

Merseyside

CH44 8ED

 

 

Visit our website: [2]www.wirral.gov.uk

 

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

      

 

show quoted sections

References

Visible links
2. http://www.wirral.gov.uk/

Corrin, Jane, Wirral Metropolitan Borough Council

2 Attachments

Dear Mr. Morton,

 

The Council has been advised by The Information Commissioner’s Office that
we are required to disclose the Terms of Reference for the Nick Warren
enquiry to you.  These were requested as part a) of your original request
to the Council.

Please see attached the Terms of Reference in question.  This now
concludes your request as the Council is not required to take any further
action in relation to your enquiry.

Yours sincerely

Jane Corrin

Records and Information Manager -  Legal and Member Services

 

 

Wirral Council

Transformation and Resources

Wallasey Town Hall Brighton Street

Wirral

Merseyside

CH44 8ED

 

 

Visit our website: [1]www.wirral.gov.uk

 

[2]cid:image001.jpg@01D116EC.9ECA3540

      

show quoted sections

References

Visible links
1. http://www.wirral.gov.uk/

Martin Morton left an annotation ()

I'd like to thank the Information Commissioner's Office for their negotiations and hard work on this case.

Dear Corrin, Jane,

I'm wondering whether it was the ICO Decision Notice issued on December 15th 2015 or the article published by Wirral Leaks on January 14th 2016 that was more effective in ensuring this information was disclosed!.
Shameful behaviour yet again by Wirral Council.

Yours sincerely,

Martin Morton