Dear Mr. Hobro,

Freedom of Information Act 2000 (FOIA) Request reference FS50559883

I refer to your request for information contained in your email of 20
August 2014. Your request was as follows:-

“Dear Wirral Metropolitan Borough Council,

Mrs Lyons emailed myself this week the unredacted paragraph J of the
Timmins review. See also the Agenda supplement of the Audit

Risk Committee of 22 July 2014. page 48.

I quote the paragraph

"There is on file a previous, and much more detailed, draft report which
includes numerous evidential appendices.

However for the avoidance of doubt I would not consider that this report
could be released into the public domain, and has, in any
case, been superseded."

This review was conducted in autumn 2012. The D Garry report and ,now,
the Grant Thornton reports have entered the public domain.
The Grant Thornton report contradicts the D Garry report.

I believe that this original evidenced file is the work of an employee
who left Counter Fraud in January 2012, that it is a true
representation of the facts in the BIG case and that it would directly
highlight malpractice and subversion by Mr Garry. Mr Garry
at the November 2011 whistleblower meeting re BIG was merely the
note-taker and the employee who left January 2012 was leading the
investigation, posing the questions whilst Mr Garry remained silent.

1. ask you for a suitably redacted copy of the file referenced in the
quote from the Timmins review.”

On 21 August 2014, you added to your request for information as follows:-

Dear Wirral Metropolitan Borough Council,

If you find yourself unwilling to provide the full file, of the
"superseded" report, until the Information commissioner has
considered the same, then please provide in the interim:

1. Department producing report i.e Internal Audit or Finance or Invest
Wirral etc

2. Dates of the report. Computer date stamps will allow you to provide

a) commencement date of the work
b) date of last work done
c) the date at the head of the report

3) Was a copy of this "superseded" report provided to the Grant Thornton
investigators?

As a note one wonders how a more detailed report with evidential
appendices can be superseded by a D Garry report which evidently
was "unfit for purpose" , and here I quote Mr. Timmins, former Financial
director.”

You requested an internal review on 19 September 2014, as the Council had
not responded to your original request for information.

I consider that the information you are requesting is exempt information
under Section 36 (c), because in the reasonable opinion of the qualified
person, disclosure of the information under FOIA  would be likely to
otherwise prejudice the effective conduct of public affairs.

The information you are requesting is contained in an initial draft
report, which was not completed and which has been superseded by the
external investigation carried out by Grant Thornton. If this report were
to be disclosed to you, a member of the public, it is my reasonable
opinion as the authorised person, that this would be likely to otherwise
prejudice the effective conduct of public affairs. I have had regard to
the guidance issued by the Information Commissioner’s Office (ICO)
“Prejudice to the effective conduct of public affairs”.

Paragraph 54 of the Guidance provides that Section 36 (2) (c) “is
concerned with effects of making the information public”. To disclose an
incomplete report, based on an initial investigation, which had been
superseded by later reports which have already been made available to the
public, and considered on 8 October 2014 by the Council’s Audit and Risk
Management Committee ,would be likely, in my reasonable opinion, to
otherwise prejudice the effective conduct of public affairs. In the case
of McIntyre v. Information Commissioner and the Ministry of Defence( EA
/2007/0068, 4 February 2008), Paragraph 25 states that this category of
exemption is intended to apply to those cases where it would be necessary
in the interests of good government to withhold information “where the
 disclosure would prejudice the public authority’s ability to offer an
effective public service or to meet its wider objectives or purposes due
to the disruption caused by the disclosure or the diversion of resources
in managing the impact of disclosure.”

It is my reasonable opinion that disclosure of the requested information
would otherwise prejudice the effective conduct of the Council’s public
affairs. To disclose to a member of the public,a draft incomplete internal
audit report,  would prejudice the Council’s ability to offer an effective
internal audit service and cause disruption because of the diversion of
resources to manage the impact of disclosure.

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”.

Public interest factors against maintaining the exemption

·         Public interest in the transparency of the internal audit
process. However it does not necessarily follow that the transparency or
openness of the process requires that information contained in draft
reports be publicly available. A large volume of information has already
been made available to you as a member of the public at the Audit and Risk
management Committee referred to above.

Public interest factors for maintaining the exemption

·         Disclosure of draft incomplete internal audit reports would
interfere with the integrity of the investigation process and cause
diversion of resources in managing the impact of disclosure, potentially
cause confusion and mislead where only partial information has been
included in a draft report.

·         Public services will be more effectively delivered if only
completed reports are considered for public disclosure.

I consider that the public interest in maintaining the exemption outweighs
the public interest in disclosing the information

I also consider that some of the information you have requested  is exempt
information under Section 40 (2) and (3) (1) (a) (i)  of the Freedom of
Information Act 2000, in that you are requesting information which is
personal data, in respect of which you are not the data subject. I
consider that the disclosure 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 disclosure of the requested information would have an unjustified
adverse effect on the individuals identified in the draft internal audit
report. I do not consider that any of the conditions in Schedule 2 would
be met and particularly Condition 6 of Schedule 2 in that the processing
would be unwarranted by reason of prejudice to the rights and freedoms or
legitimate interests of the data subjects.  I do not consider that such
processing would be necessary for the purposes of legitimate interests
pursued by yourself as a third party, being a member of the public and
that your legitimate interest has already been met by the information
which was made available at the meeting of the Audit and Risk Management
Committee which took place on 8 October 2014.If information were to be
redacted, I consider that the individuals would still be capable of
identification due to other information already in the public domain.

I am therefore refusing your request for information under Section 17 of
FOIA  on the basis that the exemptions contained in Section 36 (2) (c )
and Section 40 (2) apply to the requested information. I  have copied this
response to the Information Commissioner in respect of your complaint to
the ICO about the Council’s lack of response to your request for
information. I apologise for the delay in responding.

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

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Dear Mr. Hobro

Freedom of Information Act 2000 (FOIA) Request reference FS50559883

I refer to your complaint to the Information Commissioner’s Office and to
your request for an internal review contained in your email dated 3
December 2014, which was as follows:-

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 'Original BIG report'.

I disagree with your reasons not to answer this FOI. The fact that para j
of the Timmins review had originally been redacted in July 2014,
subsequently revealed when the Information commissioner disagreed with WBC
motives, does strongly suggest that the original work was explosive
precisely because the final Garry report was contradicting it by
whitewashing the entire affair.

It must be in the public interest to dispel the taint of cover-up, and/or
provide an appropriate mechanism to punish those who may have perverted
normal process.

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

I refer to the response sent to you on 26 November 2014, when your request
for information was refused on the basis that the exemptions contained in
section 36 (2) (c) and Section 40(2) of FOIA applied. This response was
sent by the qualified person, the Head of Legal and Member Services. I am
also the qualified person, for the purposes of Section 36(5)(o) of FOIA
and in that capacity am carrying out the internal review .I have had
regard to the latest guidance published by the Information Commissioner’s
Office, Prejudice to the effective conduct of public affairs (section 36)
Version 3.

Paragraph 53 of the Guidance provides that prejudice to the effective use
of resources “may refer to the disruptive effects of disclosure, for
example the diversion of resources in managing the effect of disclosure.”
As you are aware, a large volume of information was considered at the
special meeting of the Audit and Risk Management Committee, which took
place on 8 October 2014. I enclose a link to the full list of documents
that was considered by that Committee.
[2]http://democracy.wirral.gov.uk/mgAi.aspx....

Paragraph 54 of the Guidance provides that Section 36 (2) (c) “is
concerned with effects of making the information public”.

In my reasonable opinion, the effect of making the requested information
public, by disclosing an incomplete report, would be disruptive, the
report having been superseded initially by the report of the Chief
Internal Auditor and by the external auditor’s reports.

I refer to the  case of McIntyre v. Information Commissioner and the
Ministry of Defence( EA /2007/0068, 4 February 2008), Paragraph 25 states
that this category of exemption is intended to apply to those cases where
it would be necessary in the interests of good government to withhold
information “where the  disclosure would prejudice the public authority’s
ability to offer an effective public service or to meet its wider
objectives or purposes due to the disruption caused by the disclosure or
the diversion of resources in managing the impact of disclosure.” In
Paragraph 40 of the decision it provides, “the words “would be likely to”
have been interpreted to mean that there is a “real and significant risk
of prejudice” to the interest in the exemption”. If public authorities are
required to disclose incomplete investigation reports, it is my reasonable
opinion that this would be likely to undermine the Council’s ability to
offer an effective public service, particularly in connection with its
internal audit function, concerning issues which have already been
considered in public and it  would also be likely to cause disruption
because of the diversion of resources  in order to manage the impact of
disclosure.

It is therefore my reasonable opinion, as the qualified officer, that
disclosure of the requested information would be likely to otherwise
prejudice the effective conduct of public affairs under Section 36 (c) of
FOIA.

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”.

Public interest factors against maintaining the exemption

·         Public interest in the transparency  of the internal audit
process. However it does not necessarily follow that the transparency or
openness of the process requires that information contained in draft
reports be publicly available. A large volume of information has already
been made available to you as a member of the public at the Audit and Risk
Management Committee referred to above.

Public interest factors for maintaining the exemption

·         Disclosure of draft incomplete internal audit  reports would
interfere with the integrity of the investigation process and cause
diversion of resources in managing the impact of disclosure, potentially
cause confusion and mislead where only partial information has been
included in a draft report.

·         Public services will be more effectively delivered if only
completed reports are considered for public disclosure.

Having reviewed the public interest arguments, I concur with the
conclusion reached by the Head of Legal and Member Services in respect of
the public interest test and  consider that the public interest in
maintaining the exemption outweighs the public interest in disclosing the
information.

I also consider that some of the information you have requested  is exempt
information under Section 40 (2) and (3) (1) (a) (i)  of the Freedom of
Information Act 2000, in that you are requesting information which is
personal data, in respect of which you are not the data subject. I
consider that the disclosure 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 disclosure of the requested information would have an unjustified
adverse effect on the individuals identified in the draft internal audit
report. I do not consider that any of the conditions in Schedule 2 would
be met and particularly Condition 6 of Schedule 2 in that the processing
would be unwarranted by reason of prejudice to the rights and freedoms or
legitimate interests of the data subjects.  I do not consider that such
processing would be necessary for the purposes of legitimate interests
pursued by yourself as a third party, being a member of the public and
that your legitimate interest has already been met by the information
which was made available at the meeting of the Audit and Risk Management
Committee which took place on 8 October 2014.If information were to be
redacted, I consider that the individuals would still be capable of
identification due to other information already in the public domain.

I am therefore, in this internal review, refusing your request for
information under Section 17 of FOIA  on the basis that the exemptions
contained in Section 36 (2) (c ) and Section 40 (2) apply to the requested
information. I  have copied this response to the Information Commissioner
in respect of your complaint to the ICO about the Council’s lack of
response to your request for an internal review, for which I apologise.

Sent on behalf of Eric Robinson

Chief Executive Wirral Council

Wallasey Town Hall

Brighton Street

Wallasey

Wirral

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References

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1. https://www.whatdotheyknow.com/request/o...
2. http://democracy.wirral.gov.uk/mgAi.aspx...

Dear Mr Hobro

As instructed by the ICO’s Decision Notice FS50559883 dated 24^th August
2015, please find attached the redacted copy of the report referenced in
the quote from the Timmins review.

Kind regards,

Sent on behalf of

Jane Corrin

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.

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

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References

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