Reports on Upton & West Kirby fire stations

ScarletPimpernel made this Freedom of Information request to Merseyside Fire and Rescue Service

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.

ScarletPimpernel

Dear Merseyside Fire and Rescue Service,

This request is for:

a) the 2 A4 page Appendix H (capital costs) to report CFO/101/14 of the Chief Fire Officer (which was presented to the Authority meeting of the 2nd October 2014) and

b) the 2A4 Appendix F (capital costs) to report CFO/003/14 of the Chief Fire Officer (which was presented to the Authority meeting of the 29th January 2015).

Part (a) of this request was connected to an agenda item titled "Proposals For Upton And West Kirby Fire Stations" and part (b) of this request was connected to an agenda item titled "West Wirral Operational Response Considerations (Post Consultation)".

Both reports detail "the costs of any new build station, together with an estimate of the potential income from the sale of the buildings and land at Upton and West Kirby."

As both reports fall under the meaning of "environmental information" as defined in the Environmental Information Regulations 2004 then I expect this request to be considered under the Environmental Information Regulations 2004 (http://www.legislation.gov.uk/uksi/2004/...), which unlike a request made under the Freedom of Information legislation the Environmental Information Regulations have a presumption in favour of disclosure (see Regulation 5 http://www.legislation.gov.uk/uksi/2004/... ).

Yours faithfully,

John Brace

Freedom of Information Team, Merseyside Fire and Rescue Service

1 Attachment

Dear Mr Brace

Please see the attached letter in acknowledgement to your recent request made under the Freedom of Information Act 2000.

Kind Regards

Julie Yare

Corporate Information Sharing Officer
Strategy & Performance
Merseyside Fire & Rescue Service HQ
Bridle Rd
Bootle
Liverpool
L30 4YD

(T) 0151 296 4479
(F) 0151 296 4631
Mailto: [email address]
[email address]

http://intranetportal/sites/smd/default....
Internet: www.merseyfire.gov.uk

show quoted sections

Yare, Julie, Merseyside Fire and Rescue Service

1 Attachment

Dear Mr Brace

Please see the attached letter in response to your recent request made under the Freedom of Information Act 2000.

Kind regards

Julie Yare

Corporate Information Sharing Officer
Strategy & Performance
Merseyside Fire & Rescue Service HQ
Bridle Rd
Bootle
Liverpool
L30 4YD

(T) 0151 296 4479
(F) 0151 296 4631
Mailto: [email address]
[email address]

http://intranetportal/sites/smd/default....
Internet: www.merseyfire.gov.uk

show quoted sections

ScarletPimpernel

Dear Merseyside Fire and Rescue Service,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Merseyside Fire and Rescue Service's handling of my FOI request 'Reports on Upton & West Kirby fire stations'.

Thank you for your response (dated 8th July 2015) to my request dated 14th June 2015.

Firstly I wish to contest the sentences which state "As the information you have requested does not contain environmental information we have processed your request under Freedom of Information legislation. In accordance with the Freedom of Information Act 2004 this letter acts as a Public Interest Refusal Notice. "

As stated in my request the information requested contains "the costs of any new build station, together with an estimate of the potential income from the sale of the buildings and land at Upton and West Kirby".

"Environmental information" is defined in Regulation 2 of the Environmental Information Regulations as:

"the same meaning as in Article 2(1) of the Directive, namely any information in written, visual, aural, electronic or any other material form on—

(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements;

(b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a);

(c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in
(a) and (b) as well as measures or activities designed to protect those elements;

(d) reports on the implementation of environmental legislation;

(e) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in (c); and

(f) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are or may be affected by the state of the elements of the environment referred to in (a) or, through those elements, by any of the matters referred to in (b) and (c);"

As you can see from the above, the information requested would fall under (c) and (e) above.

There is no such thing as the Freedom of Information Act 2004.

If you are referring to the Freedom of Information Act 2000, then your refusal notice does not contain the information required by law. Section 17 of the Freedom of Information Act 2000 c.36 requires a refusal notice to specify the exemption (or exemptions) in question and why they apply.

The two you refer to (regulations 12(5)(d) and 12(5)(e)) are not part of the Freedom of Information Act 2000, but part of the Environmental Information Regulations 2004.

However, considering that you wrote "Freedom of Information Act 2004" when you meant to write "Environmental Information Regulations 2004" and when you wrote "does not contain environmental information" must've meant "does contain environmental information" (otherwise why quote reasons for refusal referring to regulations that are part of the Environmental Information Regulations 2004, please class this as a representation (see regulation 11 of the Environmental Information Regulations 2004) for reconsideration.

I would also like to point out that regulation 11 of the Environmental Information Regulations requires a further decision to be made on this request following this representation within 40 working days.

I will first deal with Regulation 12(5)(d) which states:

"(5) For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that its disclosure would adversely affect—

....

(d)the confidentiality of the proceedings of that or any other public authority where such confidentiality is provided by law;"

You further state "These exemptions apply because the two documents you have requested are exempt items by virtue of Paragraph 3 of Part 1 of Schedule 12A of the Local Government Act 1972 and therefore cannot be disclosed. "

I am aware that at the public meetings of the Merseyside Fire and Rescue Authority held on the 2nd October 2014 and 29th January 2015 that a resolution at each meeting (based on the recommendation of officer/s) were agreed by councillors.

The same information that I requested in this request formed Appendix B to agenda item 8 (Operational Response Savings Option) of the Merseyside Fire and Rescue Authority's meeting of the 30th June 2015.

Although a recommendation was made by officers that councillors at that meeting pass a resolution excluding this information from the public domain, no such resolution was agreed at that meeting.

Such matters are dealt with as the first item on the agenda which the agenda of the meeting of the 30th June 2015 specified thus:

"1. Preliminary Matters
The Authority is requested to consider the identification of:

a) declarations of interest by individual Members in relation to any item of business on the Agenda

b) any additional items of business which the Chair has determined should be considered as matters of urgency; and

c) items of business which may require the exclusion of the press and public during consideration thereof because of the possibility of the disclosure of exempt information."

You can watch a video recording of this part of the meeting here https://www.youtube.com/watch?v=PRf_1chE... , but for the purposes of this reconsideration I include a transcript of that items 1 & 2 of that meeting below:

"Cllr Leslie T Byrom (Vice-Chair of the Merseyside Fire and Rescue Authority): You may start recording from this moment if you like. Moving to preliminary matters, we have two minutes of the previous meetings.

Member of public: Excuse me, could you introduce yourselves so we know who you are?

Cllr Leslie T Byrom (Vice-Chair of the Merseyside Fire and Rescue Authority): We don't normally do that. We don't normally do that, everybody has their...

Member of public: Well I can't see who you are from here!

Cllr Leslie T Byrom (Vice-Chair of the Merseyside Fire and Rescue Authority): I'm going to press on with the meeting and if I may say you know I'm assuming that everybody is going to be respectful and follow the normal procedures for meetings. I don't think like Barack Obama we're going to have to sing to bring order back again.

We will proceed with the meeting, I'm chairing the meeting and we'll carry on if you don't mind. So we move on to minutes of the previous meeting, those are on pages seven to twenty. Are they agreed?

Councillors: Agreed.

Cllr Leslie T Byrom (Vice-Chair of the Merseyside Fire and Rescue Authority): There is an issue about declarations of interest, do Members have any declarations of interest?

Is there any suggestions about the changes in the agenda and the items of business? Councillor Rennie?

Cllr Lesley Rennie (Lead Member for Operational Preparedness): Chair, could I ask because there are so many members of the public and obviously ward councillors for the items on the agenda 7 and 8 in relation to Saughall Massie, would you errm be willing to perhaps rearrange the order of business in order to facilitate them for an early getaway or is there a reason perhaps why that may not be possible?

Cllr Leslie T Byrom (Vice-Chair of the Merseyside Fire and Rescue Authority): We have had some discussions about this. There are a number of items and they won't be long I don't think that relate to the financial background to the Authority which I think would be helpful to the members of the public to understand the context against which we're making some discussions.

There are also proposals for changes and amalgamations in err St Helens, and I think again I don't think it'll be a long item, but I think for the public who are here to look at decisions further down the agenda it would be useful and interesting to see, you know that it's not just in isolation, there are other items on the agenda as well.

So if you don't mind, I think we could, we will...

Member of the public: You can't do that.

Cllr Leslie T Byrom (Vice-Chair of the Merseyside Fire and Rescue Authority): Would you give order please? Errm, we will proceed with the agenda as it's printed if that's alright, but if it gets lengthy, if it get's lengthy we'll look at that because I'll know the public have got some distance to travel, but we'll sit with the agenda as printed if you don't mind. So we'll move on to item 3 on the agenda, that's pages 21-30 and that is the petition concerning the merger of Upton and West Kirby fire stations."

As you can see from the above no resolution was agreed by councillors at that meeting keeping the report on capital costs out of the public domain. That decision (made on the 30th June 2015) was made before your decision on my request (made on the 8th July 2015).

Section 100C of the Local Government Act 1972 states (please note in the definitions in 100J(1)(f) "principal council" also refers to fire and rescue authorities such as the Merseyside Fire and Rescue Authority, therefore this report is open to public inspection as no resolution was passed:

"(1) After a meeting of a principal council the following documents shall be open to inspection by members of the public at the offices of the council until the expiration of the period of six years beginning with the date of the meeting, namely—

(a) the minutes, or a copy of the minutes, of the meeting, excluding so much of the minutes of proceedings during which the meeting was not open to the public as discloses exempt information;

(b) where applicable, a summary under subsection (2) below;

(c) a copy of the agenda for the meeting; and

(d) a copy of so much of any report for the meeting as relates to any item during which the meeting was open to the public.

(2) Where, in consequence of the exclusion of parts of the minutes which disclose exempt information, the document open to inspection under subsection (1)(a) above does not provide members of the public with a reasonably fair and coherent record of the whole or part of the proceedings, the proper officer shall make a written summary of the proceedings or the part, as the case may be, which provides such a record without disclosing the exempt information."

I would also like to draw your attention to Regulation 8 and Regulation 10 of the Openness of Local Government Bodies Regulations 2014, see http://www.legislation.gov.uk/uksi/2014/... .

Decisions and background papers to be made available to the public

"8.—(1) The written record, together with any background papers, must as soon as reasonably practicable after the record is made, be made available for inspection by members of the public—

(a) at all reasonable hours, at the offices of the relevant local government body;
(b) on the website of the relevant local government body, if it has one; and,
(c) by such other means that the relevant local government body considers appropriate.
(2) On request and on receipt of payment of postage, copying or other necessary charge for transmission, the relevant local government body must provide to the person who has made the request and paid the appropriate charges—

(a) a copy of the written record;
(b) a copy of any background papers.
(3) The written record must be retained by the relevant local government body and made available for inspection by the public for a period of six years beginning with the date on which the decision, to which the record relates, was made.

(4) Any background papers must be retained by the relevant local government body and made available for inspection by the public for a period of four years beginning with the date on which the decision, to which the background papers relate, was made.

(5) In this regulation “written record” means the record required to be made by regulation 7(1) or the record referred to in regulation 7(4), as the case may be."

Offences

10.—(1) A person who has custody of a document which is required by regulation 8 to be available for inspection by members of the public commits an offence if, without reasonable excuse, that person—

(a) intentionally obstructs any person exercising a right conferred under this Part in relation to inspecting written records and background papers; or
(b) refuses any request under this Part to provide written records or background papers.
(2) A person who commits an offence under paragraph (1) is liable on summary conviction to a fine not exceeding level 1 on the standard scale."

As no resolution was passed at the Merseyside Fire and Rescue Authority's meeting of the 30th June 2015 to exclude this information from the public domain, the above regulations required it to be published "as soon as practicable" on your website (which hasn't happened).

As this request was refused after the decision made by councillors on the 30th June 2015 that this information should be in the public domain, the fact it's not been published on your website since is arguably a breach of regulation 8(1)(b) of the Openness of Local Government Bodies Regulations 2014 and refusal of this request could be interpreted as a criminal offence (see regulation 10).

Dealing with your refusal under Regulation 12(5)(e) "Confidentiality of commercial or industrial information, when protected by law to cover legitimate economic interest", obviously if you agree with me on the above points refusal on this ground is a moot point.

Earlier this year I made a request to Wirral Council for the address of land they had purchased. Like yourselves, the request was refused with reference to regulation 12(5)(e) at internal review.

However when I appealed it to the Information Commissioner's Office, the information was provided, see decision notice FS50576394 https://ico.org.uk/media/action-weve-tak... .

In your response you state "The reason why the public interest favours withholding the information is because the information contained within these documents is deemed to be commercially sensitive and the disclosure of such information is not deemed to be in the public interest as it may jeopardise the Authority's position with regards to any future negotiations concerning the sites in question. As a Public Authority Merseyside Fire & Rescue Authority have a duty to negotiate the best possible financial deal to protect the public purse which in course enable’s the authority to provide the best possible service."

At the moment, Merseyside Fire and Rescue Authority have not got planning permission for a new fire station on the Saughall Massie site. This is a process that could take as long as six months (or longer if permission is refused then appealed to the Planning Inspectorate). During that time it is highly likely that land & property prices in the areas of Saughall Massie, Upton and West Kirby will change, it is also possible that planning permission for the Saughall Massie site will be refused. Therefore if Merseyside Fire and Rescue Authority make a decision in the future to sell those sites, a further up to date valuation would have to be done to prove considerations of best value to its auditors and taxpayer on Merseyside.

There is a presumption in favour of disclosure in the Environmental Information Regulations 2004. I consider that the arguments I have made here in representations in favour of disclosure in relation to your refusal on grounds in Regulation 12(5)(d), including pointing out why following the meeting of the 30th June 2015 this information (seemingly in breach of regulation 8 of the Openness of Local Government Bodies Regulations 2014) hasn't been published on your website and the issue of whether refusal of this request constitutes a criminal offence (regulations 8/10 of the Local Government Bodies Regulations 2014) means that this information should be disclosed as a matter of urgency.

As pointed out in the decision notice I refer to (FS50576394), you have a legal duty to provide such information within a 20 working day timescale of the original request (made on the 14th June 2015).

I hope having considered this representation carefully you will reconsider your decision and provide the requested information.

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

Yours faithfully,

John Brace

Freedom of Information Team, Merseyside Fire and Rescue Service

Dear Mr Brace

Thank you for your request below. To update you your request is being considered and we will be in touch in due course.

Kind Regards

Julie Yare

Corporate Information Sharing Officer
Strategy & Performance
Merseyside Fire & Rescue Service HQ
Bridle Rd
Bootle
Liverpool
L30 4YD

(T) 0151 296 4479
(F) 0151 296 4631
Mailto: [email address]
[email address]

http://intranetportal/sites/smd/default....
Internet: www.merseyfire.gov.uk

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Henshaw, Janet (Legal), Merseyside Fire and Rescue Service

 

Dear Mr Brace

 

INTERNAL REVIEW OF YOUR REQUEST FOR INFORMATION

 

I have considered the request for Information made on 14^th June 2015
along with the response from the Authority’s Freedom of Information Team
of 8^th July 2015 and your request for an Internal Review of the decision
of 8^th July dated 15^th July 2015.

 

Environmental Information Regulations 2004 (EIR 20014)

 

I have carefully considered the definition of “Environmental Information”
in Regulation 2 of the EIR 2004 which you have replicated in full in your
email of 15^TH July 2015. However I do not consider that Regulation 2(1)(c
)  or 2 (1)(e) apply in the case of the two report Appendices (CFO/101/14
Appendix H and CFO/003/14 Appendix F) that you have requested.  This is
because these reports relate to estimated capital costs of building and do
have any implications for either :

 

(c ) “ measures (including administrative measures), such as policies,
plans, programmes, environmental agreements and activities affecting or
likely to affect the elements and factors referred to in (a) and (b) 
 (these being various elements of the environment as you have replicated
in your email) as well as measures or activities designed to protect these
elements.”  my emphasis OR

 

(e ) “cost- benefit and other economic analyses and assumptions used
within the framework of the measures and activities referred to in ( c) my
emphasis.

 

As these reports have no bearing upon anything affecting the elements
described above the EIR 2004 cannot be applied.

 

Freedom of Information Act 2000

 

You have stated that there is “… no such thing… ” as the Freedom of
Information Act 2004, which was quoted in the decision letter to you of
8^th July 2015. Further you have asked if this is meant to refer to the
Freedom of Information Act 2000. This is correct and the reference to the
2004 Act was quite clearly a typographical error and nothing more.

 

Exempt Items on the Agenda of the Authority Meeting of 30^th June 2015

 

Report Appendices CFO/101/14 Appendix H and CFO/003/14 Appendix F were
both subject to exemptions under Paragraph 3 of Part 1 to Schedule 12A of
the Local Government Act 1972  which constitutes information relating to
the financial or business affairs of any particular person, including the
authority holding the information. This is not subject to a recommendation
to or Resolution of the Authority or Committee but is a decision made by
myself as the Monitoring Officer of this Authority. In considering this
decision I  took due regard to the public interest but decided that in all
the circumstances and due to ongoing negotiations between MFRA and
landowners of the land involved and the potential for publication to
affect such negotiations, along with consideration of the best use of
public and taxpayers money, there was and remains a need for commercial
sensitivity.

 

Authority elected Members are at liberty to question such decisions and
indeed do so on occasion and it is part of the role of the Monitoring
Officer to advise Members in this regard, should they have any questions
or wish to change this decision.  However there was no such questioning
with regard to these particular report appendices. It should also be noted
that only this very small part of the reports in question had been subject
to this exemption. The remainder of both reports were fully publicised.

 

It should also be noted that the Openness of Public Bodies Regulations
2014, Regulation 9 (1) and (2) provide that  “Nothing in this Part—

 

(a)    authorises or requires a relevant local government body to disclose
to the public or make available for public inspection any document or part
of a document if, in the opinion of the proper officer, that document or
part of a document contains or may contain confidential information; or

 

(b)   requires a relevant local government body to disclose to the public
or make available for public inspection any document or part of a document
if, in the opinion of the proper officer, that document or part of a
document contains or is likely to contain exempt information

 

 

The Decision Letter

 

You have complained that the Decision Letter of 8^th July 2015 in that it
relates to Regulation 12 (5) (d) and ( e)  of the EIR 2004. Having
reviewed your request refusal I am clear that the EIR 2004 does not apply
to this request. Consequently Regulation 12 of these is not applicable.
 However I am satisfied that as these report appendices were subject to
exclusion from the press and public under the Local Government Act 1972,
Schedule 12A  of Part 1 Paragraph 3, that the exemption under the Freedom
of Information Act 2000 section 44 applies. Section 44 (1) (a) provides
that information is exempt where it’s disclosure (otherwise than under
this Act) by the public authority holding it is prohibited by or under any
enactment.

 

You have a further right of appeal to the Information Commissioner and
this should be sent to:

 

The Information Commissioner’s Office

Wycliffe House

Water Lane

Wilmslow

Cheshire

SK9 5AF

 

Telephone: 0303 123 1113

http:/www.ico.org.uk

 

Yours sincerely

 

 

Janet Henshaw

Solicitor to the Authority and Monitoring Officer

Merseyside Fire and Rescue Authority

Bridle Road

Bootle

Merseyside

L30 4YD

 

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If you have received this e-mail in error please notify the originator of the message.

Any views expressed in this message are those of the individual sender, except where the sender specifies and with authority, states them to be the views of Merseyside Fire & Rescue Service, (MFRS).

Incoming and outgoing emails may be monitored in line with current legislation.

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http://www.merseyfire.gov.uk/

ScarletPimpernel left an annotation ()

Appealed to ICO 5/8/15.

ScarletPimpernel left an annotation ()

Resulted in Environmental Decision Notice FER0592270 dated 16th February 2016: https://ico.org.uk/media/action-weve-tak...

However note this decision notice is currently under appeal to the First-Tier Tribunal (Information Rights), case EA/2016/0054.

A public hearing will be happening (case EA/2016/0054) on the 21st September 2016 at 10.00 am at Tribunals, 3rd Floor, 35 Vernon Street, Liverpool, Merseyside, L2 2BX .

ScarletPimpernel left an annotation ()

The hearing happened on the 21st September 2016.

Most matters were decided by a consent order dated 22nd September 2016, see here http://informationrights.decisions.tribu... .

After the consent order dated 22nd September 2016 the following decisions have been made by the First-tier Tribunal as a result of the consent order.

Decision on costs application (MFRA/John Brace) (31/10/16)
Revised version of costs application to correct incorrect party name (MFRA/John Brace) (21/11/16)*

Decision on costs directions (John Brace/MFRA) 25/11/16
Further version of costs directions decision (identical to 25/11/16 despite incorrect party name) (John Brace/MFRA) (24/1/17) *

Both marked * are subject to a pending review/request for permission to appeal to the Upper Tribunal.

ScarletPimpernel left an annotation ()

This is a link to the information that this EIR request was for disclosed by ICO on 14.10.16 .

http://johnbrace.com/wp-content/uploads/... .

ScarletPimpernel left an annotation ()

Costs order of £500 originally dated 31st October 2016 in favour of MFRA in case EA/2016/0054 (First-tier Tribunal) appealed to Upper Tribunal (Administrative Appeals Chamber). Upper Tribunal reference is [2019] UKUT 305 (AAC).

Permission to appeal granted by Upper Tribunal (Administrative Appeals Chamber) and costs order set aside due to error of law.

ScarletPimpernel left an annotation ()

The Upper Tribunal decision has since been published and can be viewed by following the link at the following page:-

https://www.gov.uk/administrative-appeal...

ScarletPimpernel left an annotation ()

Further costs directions were issued in June 2020, see https://johnbrace.com/further-costs-dire... (but since then MFRA has withdrawn its costs application).