Wirral Council Quarterly - now Monthly - Newsletter, etc.

Paul Cardin 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 refused by Wirral Metropolitan Borough Council.

Dear Wirral Metropolitan Borough Council,

The following is a specific meeting minute of the Birkenhead Constituency Committee which met on Thursday 24th July 2014:

"The Constituency Manager updated the Committee on the latest position in relation to the newsletter for Birkenhead and indicated that there may be some legal implications that needed to be further explored prior to publication and circulation.

The Head of Legal and Member Services advised the Committee that there was a need to ensure that the newsletter would not breech [sic] any aspects of the Code of Recommended Practice on Local Authority Publicity (the Code) and suggested that the decision on this be deferred and brought back to the next meeting of the Committee."

Here is a link to the above: http://democracy.wirral.gov.uk/mgAi.aspx...

Please send the following:

o All written correspondence since government guidelines (Code of Recommended Practice on Local Authority Publicity)

https://www.gov.uk/government/publicatio...

... were introduced - involving Surjit Tour, neighbourhoods and engagement team and any officer involved in resolving the legal implications referred to in the minute

o Copies of all the information exchanged and the minutes of relevant meetings Surjit Tour and others attended relating to the quoted 'legal implications' of issuing either a quarterly or monthly publication including the potential for going against issued DCLG advice

o Copies of advice given by Head of Law Surjit Tour that the authority may not be permitted or it may not be advisable to issue more than four editions of such a publication

o Copies of all relevant reports prepared and issued

Yours faithfully,

Paul Cardin

ScarletPimpernel left an annotation ()

In relation to part d) of your request (these are both going to next Monday's meeting (starting at 10am) of Wirral Council's Cabinet as agenda item 10):

Cabinet report (Agenda Item 10 Keeping Residents Informed)

http://democracy.wirral.gov.uk/documents...

and there's also an Appendix A (Publicity Code of Recommended Practice on Local Authority Publicity):

http://democracy.wirral.gov.uk/documents...

Hope that helps!

InfoMgr, FinDMT, Wirral Metropolitan Borough Council

1 Attachment

Dear Mr Cardin,

Thank you for your recent request made under the Freedom of Information
Act. Please find Wirral Borough Council’s response as follows:

The information you have requested is detailed as follows:

 

o All written correspondence since government guidelines (Code of
Recommended Practice on Local Authority Publicity)

 

[1]https://www.gov.uk/government/publicatio...

 

... were introduced - involving Surjit Tour, neighbourhoods and engagement
team and any officer involved in resolving the legal implications referred
to in the minute

 

o Copies of all the information exchanged and the minutes of relevant
meetings Surjit Tour and others attended relating to the quoted 'legal
implications' of issuing either a quarterly or monthly publication
including the potential for going against issued DCLG advice

 

o Copies of advice given by Head of Law Surjit Tour that the authority may
not be permitted or it may not be advisable to issue more than four
editions of such a publication

 

o Copies of all relevant reports prepared and issued

 

 

The Council considers recorded information held with regard to, written
correspondence, information exchanged and advice provided by Surjit Tour
is protected by legal advice privilege Section 42 FOIA. I have referred to
guidance issued by the ICO “[2]The exemption for legal professional
privilege Section42 Version 1.2”  and I also refer to the case of
[3]Bellamy v. the Information Commissioner and the Secretary of State for
Trade and Industry (EA/2005/0023,4 April 2006), that held that there were
two types of privilege within the concept of legal professional privilege,
namely litigation privilege and advice privilege. I consider that legal
advice privilege applies to the requested information .

As such this exemption is subject to the public interest test.

 

I consider that public interest factors weighing in favour of disclosing
privileged information are that authorities should be accountable for the
quality of their decision making, however I consider that disclosure of
the requested information could materially prejudice the Council’s ability
to protect and defend its legal interests and compromise decision making. 
Therefore I consider that the public interest in maintaining the exemption
outweighs the public interest in disclosure.  I am therefore refusing your
request for information under Section 17 of FOIA, on the basis that the
exemption contained in Section 42 of FOIA applies.

You have the right under Section 17 of the Freedom of Information Act 2000
to ask for an internal review of the refusal of the information
requested.  Please direct any request for an internal review to
[4][Wirral Borough Council request email] and your request will be allocated for
review.

 

If you are dissatisfied with the outcome of an internal review you also
have the right to complain to the information Commissioner,
[5]https://ico.org.uk/global/contact-us/

 

The council is able to confirm that there are no additional recorded
reports on this subject further to the information published on our
website [6]www.wirral.gov.uk
[7]http://democracy.wirral.gov.uk/ieListMee...

Thank you for your enquiry.

 

Yours sincerely,

 

 

Tracy O'Hare

Information Management Officer

Records and Information Management

Legal and Member Services

Transformation and Resources

Wallasey Town Hall

Brighton Street
Wallasey
Wirral
CH44 8ED 

[8]Tel:0151 691 8397

Transformation and Resources

[9][Wirral Borough Council request email]

 

 

[10]LGC Awards15_Winner_MIP

 

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

References

Visible links
1. https://www.gov.uk/government/publicatio...
2. https://ico.org.uk/media/1208/legal_prof...
3. http://www.informationtribunal.gov.uk/DB...
4. mailto:[Wirral Borough Council request email]
5. https://ico.org.uk/global/contact-us/
6. http://www.wirral.gov.uk/
7. http://democracy.wirral.gov.uk/ieListMee...
8. file:///tmp/Tel:0151
9. mailto:[Wirral Borough Council request email]

ScarletPimpernel left an annotation ()

HI Paul,

Here's a link to the invoice for the legal advice to Surjit Tour for this news publication idea from 11KBW https://www.whatdotheyknow.com/request/3... , it's from this FOI request here https://www.whatdotheyknow.com/request/c... .

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 'Wirral Council Quarterly - now Monthly - Newsletter, etc.'.

I do not accept your justification for withholding the information requested and believe that the public interest in disclosing this information outweighs the public interest in refusing access to the information in its entirety.

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

Yours faithfully,

Paul Cardin

Paul Cardin left an annotation ()

Thanks for your assistance Scarlet Pimpernel.

Useful link:

http://www.wirralglobe.co.uk/news/146489...

Paul Cardin left an annotation ()

For anybody reading this:

Here's a link to ICO guidance on response times. Wirral Council are failing the public again. In the absence of any response to my request for internal review this request will now be taken to the Information Commissioner.

https://www.whatdotheyknow.com/request/1...

InfoMgr, FinDMT, Wirral Metropolitan Borough Council

1 Attachment

Dear Mr Cardin,

 

I refer to your email of 30 July, in which you asked for an internal
review.  I apologise for the delay in responding.

 

You had requested, on 20 June, the following information:

Please send the following:

o All written correspondence since government guidelines (Code of
Recommended Practice on Local Authority Publicity)

[1]https://www.gov.uk/government/publicatio...

... were introduced - involving Surjit Tour, neighbourhoods and engagement
team and any officer involved in resolving the legal implications referred
to in the minute

o Copies of all the information exchanged and the minutes of relevant
meetings Surjit Tour and others attended relating to the quoted 'legal
implications' of issuing either a quarterly or monthly publication
including the potential for going against issued DCLG advice

o Copies of advice given by Head of Law Surjit Tour that the authority may
not be permitted or it may not be advisable to issue more than four
editions of such a publication

o Copies of all relevant reports prepared and issued

The Council responded on 14 July, refusing your request for information,
relying  on the exemption of legal professional privilege contained in
Section 42 of the Freedom of Information Act 2000 (FOIA).

 

In carrying out this internal review I have had regard to the following
guidance issued by the Information Commissioners Office (ICO)

 1. Legal professional privilege (section 42) 20160413 Version 1.3
 2. The public interest test 20160719 Version 2.1

 

Section 42 (1) of FOIA provides that information in respect of which a
claim to legal professional privilege could be maintained in legal
proceedings is exempt information. This exemption is ‘qualified’, which
means that the Council must weigh the public interest in maintaining the
exemption against the public interest in disclosure. The Overview to the
ICO guidance on the public interest test states that “The public interest
here means the public good, not what is of interest to the public, and not
the private interests of the requester”.

 

I consider that  advice given by the Head of Legal Services and by
external Counsel, is covered by advice privilege, being confidential
communications between the lawyer and their client, made for the dominant
purpose of giving legal advice. Paragraph 6 of the ICO guidance on legal
professional privilege provides that “ The client’s ability to speak
freely and frankly with his or her legal adviser in order to obtain
appropriate legal advice is a fundamental requirement of the English legal
system. The concept of LPP protects the confidentiality of communications
between a lawyer and client. This helps to ensure complete fairness in
legal proceedings”. In Calland v. Information Commissioner & the Financial
Services Authority (EA/2007/0136, 8 August 2008) the Tribunal confirmed
that legal advice and communications between in house lawyers and external
solicitors or barristers also attracts legal professional privilege. In
this case, the information is legal advice, which the Council’s in house
lawyers have commissioned from an external barrister. The information
contained in the advice has remained confidential and has not been
disclosed to the world at large thus retaining its legally privileged
status. I consider that a claim to legal professional privilege could be
maintained in legal proceedings in respect of the information contained in
the advice provided by Counsel.

 

Public Interest Test

Having established that section 42(1) of FOIA is engaged, the Council
needs to apply the public interest test. The ICO guidance on public
interest states in the Overview, “ In carrying out the public interest
test the authority should consider the circumstances at the time at which
it deals with the request. If carrying out an internal review, it may
consider the circumstances up to the point that review is completed.

 

Factors in favour of disclosure

There is an assumption in favour of disclosure under FOIA

In the First Tier Tribunal case of Grace Szucs v The Information
Commissioner (EA/2011/0072, 16 August 2011), Judge Pilling stated,

“Curiosity as to the legal advice a public authority has received, or the
fact that its disclosure may enable the public to better understand the
legal argument relevant to the issue, are “weak” factors in favour of
disclosure; this is particularly true in the instant case where the advice
was “live” and therefore potentially relevant to future legal proceedings”
(Paragraph 54)

 

General public interest in transparency

The ICO guidance states “There is a general public interest in promoting
transparency, accountability, public understanding and involvement in the
democratic process “ (Paragraph 29) In Calland v. Information Commissioner
& the Financial Services Authority (EA/2007/0136, 8 August 2008) “What is
quite plain, from a series of decisions beginning with Bellamy v IC
EA/2005/0023 is that some clear, compelling and specific justification for
disclosure must be shown”

 

Factors in favour of maintaining the exemption

The inherent public interest in maintaining the exemption.

In Bellamy v. Information Commissioner & the Secretary of State for Trade
and Industry (EA/2005/0023 4 April 2006), the Tribunal stated that “there
is a strong element of public interest inbuilt into the privilege itself.
At least equally strong countervailing considerations would need to be
adduced to override that inbuilt public interest.”

 

Whether the legal advice is ‘live’ at the time the internal review is
completed.

In the First Tier Tribunal  case of Grace Szucs v The Information
Commissioner (EA/2011/0072, 16 August 2011) the Tribunal considered the
public interest test and where the balance lies, Judge Pilling stated, “In
assessing the factors in favour of maintaining the exemption, we gave
significant weight to the inbuilt public interest in withholding
information to which legal professional privilege applies, however, we
consider that added to that, the other factors identified, in particular
that the legal advice was “live” at the relevant time, carry significant
weight themselves.” (Paragraph 56) I consider that the legal  advice
obtained by the Council is “live” and is being relied upon by the Council
at the time of this internal review and may continue to be relied upon.

 

Information should not be disclosed because of the need for the Council to
be fully advised as to the strengths and weaknesses in respect of the
issue on which it is seeking advice.

In the First Tier Tribunal case, Bingham Centre For The Rule of Law v.
Information Commissioner and the Home Office (EA/2014/0097, 9 December 
2015, Judge Callender Smith referred to the public interest factors in
favour of non disclosure  put forward by a witness for the Home Office, “
Legal advice obtained by government departments often set out- within its
reasoning-the perceived weaknesses of the department’s position or counter
arguments that might be made. That material helped provide the government
with comprehensive legal advice. Without such comprehensive legal advice,
the quality of the government’s decision–making would be “much reduced
because it would not be fully informed”. (Paragraph 66 (6)). The legal
adviser to the Council needs to be able to present the “full picture”
which will include arguments in support of their final conclusions and
arguments that may be made against these. Without such comprehensive
advice, the Council’s decision-making may be compromised because it would
not be fully informed.

 

Disclosure of the legal advice would prejudice the Council’s ability to
defend its legal interests because it would mean unfairly exposing its
legal position to challenge thus diminishing the reliance that could be
placed upon it.

Disclosure of the legal advice could lead to prejudice to the Council in
obtaining advice on their legal rights, obligations and liabilities and
carry a risk of prejudicing the Council in future litigation.

 

I do not consider that here is some clear, compelling and specific
justification for disclosure which would outweigh the interest in
protecting the  communications between lawyer and client, particularly
where the issue is still “live” as in this case, which in my opinion
carries significant weight. I therefore consider that the public interest
in maintaining the exemption contained in section 42 (1) of FOIA outweighs
the public interest in disclosing the information.

 

I am therefore refusing your request for information on the basis that the
exemption contained in Section 42(1) of FOIA applies to  the information
contained in the legal advice provided to the Council .You  have the right
to complain further to the Information Commissioner in respect of this
refusal.

 

The address is the Information Commissioner’s Office is:

Wycliffe House,

Water Lane,

Wilmslow,

Cheshire SK9 5AF

[2]https://ico.org.uk/global/contact-us/

Tel -0303 123 113

 

Yours sincerely

 

 

Rosemary Lyon,

Solicitor,

Legal and Member Services,

Transformation and Resources,

0151-691-8141.

 

 

 

[3]LGC Awards15_Winner_MIP

 

 

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

References

Visible links
1. https://www.gov.uk/government/publicatio...
2. https://ico.org.uk/global/contact-us/

Paul Cardin left an annotation ()

17th September 2016

Appealed to the Information Commissioner.

Paul Cardin left an annotation ()

The ICO stood strong with the council.

I will now leave it to Councillor Ian Lewis, a much greater freedom fighter than I (if in receipt of his allowance) who I believe has lodged an identical complaint, to heave on those heavy iron chains and send the marble pillars of the Wirral Council Temple and the Information Commissioner's Cheshire fortress crashing and tumbling down to the trembling ground...

Paul, signing off. Bloodied but unbowed.........