Information Commissioner Rules Against NCC in Register of Delegated Powers Case

At long last, the Information Commissioner has issued a decision notice on my request for an up to date list of officers with 'A' delegated powers.

In the short term it looks like a bit of a pyrrhic victory because I still have no better idea as to which officers have been granted delegated decision making powers. But perhaps more importantly, it's clear that NCC hasn't got the first clue either.

Obviously the ICO confirmed that NCC was late with the response that it did give me but that's pretty routine. Other procedural matters include the failure to issue a refusal notice when it claimed that the information I wanted was intended for future publication but, confusingly, also issued a fees notice should I want the information now.

The most important part of the decision concerns this claim that future publication was intended. The ICO finds that there was no evidence that NCC had a settled intention to compile an up to date list and that, even if it had, there was no evidence that they intended to publish it. In other words, a cynic might suggest that this particular response was a bit of a panicky one.

Another possibility, and the one that I hope is true, is that my request highlighted a very real problem in that NCC has not kept track of the hundreds of officer powers delegated by various committees and therefore, really doesn't know what decisions officers are making in its name. And now they've decided to do something about it, which is a good thing.

What Does She Mean?

Just been sent copies of correspondence between NCC and the Information Commissioner's Office concerning my request and complaint over getting details of officers in possession of delegated powers. One or two interesting little bits and bobs in there.

NCC's Information Governance Manager, Mrs Stephanie Pearson, appears to be raising some odd points, For instance, here's an extract from an email she sent on 1 October -

"Mr P has submitted 17 separate requests to this authority since the start of the year. He has requested internal reviews on 6 of these, of which, this case is one, and which he has ultimately pursued through you."

Well, what DO you think she's implying by that?

She goes on to say the following -

"Mr P's internal review request to this authority focused solely on the document that was provided to him being out of date and not on the fact that he expressed to you that we misinterpreted his request."

This appears to be an attempt to muddy the waters with a bit of amateur sophistry and falsehood by implying that I changed my grounds of appeal.  In fact it was the ICO caseworker who initially suggested that NCC had 'misinterpreted' my request. That's a lot kinder than I would have been, I thought they had blatantly fobbed me off with an out of date document in the hope that I wouldn't notice that they hadn't bothered to keep track of delegated powers for more than a decade.

Moving on to a further email Mrs Pearson sent to the ICO she appears to let her frustrations get the better of her -

"...this individual has previously worked for the council and therefore is aware of some of the areas of record keeping that needs to be improved. he appears to be seeking to exploit these areas..."

My, is that the sound of little stampy feet I can hear? That appears to be a fairly clear accusation of bad faith to me, not sure I'm happy about that at all.

Just for the record the only FoI requests that I've used previous knowledge on are those I've submitted on Discretionary Housing Payments. When I worked for NCC I had absolutely no idea of delegated powers arrangements, frankly I had far more distressing things to worry about. Everything I know about it now has been gleaned from publicly available information.

It's currently not looking too good for NCC's chances in this one. They have already moved the goalposts themselves and the above shows that they are trying to blame it on me. That said it doesn't mean that we will be getting the information any sooner because, as I say they haven't been keeping track of the various changes in delegated powers since 1998. But hopefully the embarrassment will motivate them to put that right sooner rather than later.

Moving the Goalposts

I was surprised to get another response from NCC to my FoIA request on delegated powers to officers. Surprised because it's with the Information Commissioner who I'm pretty sure is about to issue a formal decision notice.

Obviously they're not giving me the info because it's plain to see that they haven't got it. It turns out to be a fairly shameless attempt at moving the goalposts and I'm wondering if I might have unwisely helped them along with that.

Cast you mind back to the post I wrote when I had received the result of the internal review. This confirmed that the 1998 list was all that they had and so wouldn't be sending anything else, as such they were refusing my request on the basis that they don't hold the information. At the time I said -

"I did wonder if they would claim that the information existed but that it could only be provided at disproportionate cost...It's a useful way for councils to dodge providing information and usually involves claiming that a search of eleventy thousand documents will be required (in reality usually a few hundred) and that each document will take 45 minutes to examine (in reality about 5...)"

Cut to Friday and here's what they've now come up with -

"Unfortunately again without significant time and resource Democratic Services are unable to identify a complete list of delegations made by committees, boards etc since 1998, as all of the minutes from those meetings would require reviewing to see if they contained information about the power to delegate and so sadly, Democratic services are unable to supply this information in response to your request at this time.
 
Democratic Services have estimated that there are in excess of 2000 meetings between 1998 and 2010 and that this would equate to approximately 160 hours work...

However, Should you still require to receive this information prior to next year, the Council would issue you with a fees notice in order to retrieve this"

They then go on to quote me £4075 to provide the info. I think I'll keep my gob shut next time. Maybe they're hoping this will persuade the ICO not to make an adverse decision?

Still, the point is reinforced. NCC simply has no idea who has been delegated powers to act on behalf the council and in what circumstances. This is unacceptable. I think I can reasonably claim the credit for ensuring that they put this right.

Oh, and if you think this is just about people being allowed to order their own paperclips have a look at the delegated decisions section* on the NCC website. On the first page there's one for £4m and several for hundreds of £k. I think that's something I'd like to keep track of.

*For some reason they appear to be listing these in reverse order. More alarmingly they seem to have stopped listing them at all since July.

Chocolate Teapots, Pastry Crash Helmets, Meringue Lifejackets...

More on the issue of whether NCC has any idea at all as to who is in possession of the many powers delegated to officers by the council and its committees.

It has now been finally confirmed that they don't. They have not kept any records of any powers delegated to officers since 1998.

We pretty much knew this from NCC's response to my FoIA request for a list of officers with delegated powers but I took the matter to the Information Commissioner to make sure.

The ICO has emailed me to propose an informal resolution in the following terms -

"I have spoken to the council and explained the nature of your complaint. I am satisfied that it now understands what it may have got wrong – it appears to have misinterpreted your request as a request for a copy of the list it already holds, instead of as a request for a list of the current posts and committees/meetings where the delegation was granted. As those details will be recorded in the council’s records (but not necessarily compiled into a current list) it seems unlikely that the information will not be held by it, nor is there any apparent reason why the public authority would seek to withhold the information.

Where possible the Information Commissioner prefers complaints to be resolved by informal means. If this does not prove to be possible, he will usually issue a Decision Notice to you and the public authority once an investigation has been completed. This will inform you of his decision and the reasons for it.

Where the Commissioner decides that a request has not been handled properly he may specify what steps he believes are necessary to remedy the situation. This can include requiring a public authority to release information which has previously been withheld. A copy of the Decision Notice will be placed on our website (with your details omitted). If you disagree with the decision that has been reached you have a legal right of appeal to the Information Tribunal.

In this case, the council has indicated to me that it would prefer to resolve your complaint informally, by compiling and disclosing an up-to-date list of ‘A’ delegated powers, etc, from the information in its records. 

As the Commissioner prefers to resolve such matters informally where possible, this would also be his preferred course of action. Kindly indicate whether you would consider this a satisfactory outcome to your complaint.

It is clear that, by failing to disclose the information held within the statutory timescale, the council will have breached section 10 of the Act even if it discloses the information in full shortly. The preferred approach to such matters would be to refer any such procedural breaches to the Commissioner’s Enforcement team" 

So, as you can see, they now plan to catch up with 12 years of decisions to delegate powers to officers which really should have been centrally updated on an ongoing basis. Madness.

I've written back to the ICO saying that I want a formal decision notice which won't make me popular but I think there is a strong public interest in NCC being held to account, not so much for not providing me with the info but not keeping track of such important matters at all. I also don't like the fact that Information Governance have been guilty of misleading the Overview and Scrutiny Committee by saying that they haven't had a formal decision notice made against them when formal decisions are far from the full story as the ICO now has a policy to informally resolve cases as much as possible.

Gardengate Closed!

Puntastic!

Yes, it's true, the Gardengate case is finally over, NCC have thrown in the towel. It was looking that way following their application to postpone and then going very quiet, then I got a letter Wednesday morning.

But I'd like to share with you the manner in which they graciously withdrew. I could sub-title this bit 'Sometimes It's Hard to Say You're Sorry'...

And so we'll begin. The first reason they gave was that they'd got a date wrong. Good of them to admit that because I hadn't noticed. Essentially the summons said that on 2 October 2009 I had failed to do the works required within the period on the original notice. But 2 October was in fact the last day of that period, therefore I couldn't be said to have failed to comply with the notice until 3 October. I look at it now and it does look pretty dumb. Lesson of the day, always check your dates people.

I'm not convinced that this was fatal to their case however and I can certainly think of an easy way they could have got round it if their hearts were still in it.

Secondly they forgot to mention a piece of legislation. Again, I really do wonder whether that was a deal breaker.

Anyway, now it gets more interesting as the question as to whether officers had been properly delegated powers to issue enforcement proceedings, a key plank of my defence, now arises. NCC say that, for them to argue this point they will need a witness to attend who is on leave on the day of the hearing so they would need an adjournment. I can see how this is offputting for them as they'd only just attended a hearing where they had agreed a new date. The court probably wouldn't be that sympathetic to a further request for an adjournment in those circumstances.

They then make a big point of saying that they don't accept my arguments on the delegated powers issue but more on that later.

Finally they seem to sort of blame their bottling the case on my illness but not before some huffing and puffing about how I could have got somebody else to do the work for me. But still, they graciously inform me that NCC is "willing to allow me a further opportunity" to get the work done and indicate that they'll look at it again towards the end of the year. Thanks to this change of heart (sort of), they therefore plan to offer no evidence against me and the case will be dismissed. Which is nice.

So, what do we think? Well I can't be sure but I honestly suspect that, if they were confidant that they were clear on the delegation of powers issue we wouldn't be looking at the end of the case now. They've known about my disability since before they issued the summons and they've had adequate time to take it into account. I suspect that the other reasons given are pretty minor issues that could have been dealt with quite easily, although I don't really know enough about Magistrates Court procedure to be absolutely sure.

What definitely is clear is that, should they decide that they do want to prosecute me in future they will have to start from scratch with a new notice and, as I don't have any employment tribunals coming up, I'll probably be able to rustle an appeal up this time.

However, let's just imagine a hypothetical situation where they have realised that the required powers to start enforcement proceedings HAVEN'T been properly delegated to officers just as I've argued. Leaving things to the end of the year would give the Development Control Committee enough time to either put the required delegation in place or to make a decision on enforcement action themselves. Should the DCC take either of those courses of action then that would be as clear an admission that powers weren't properly delegated before as it's possible to get, despite all the denials. As I've suggested previously, that might leave a number of NCC officers in sticky legal situations, not to mention NCC itself. Needless to say I'll be watching the comings and goings of the DCC very closely from now on.

But for now this is the first time in two years where I haven't been embroiled in some sort of legal tussle with NCC, with two years of internal wrangling before that and frankly I'm a little tired. We are talking full on career and life fuck-up here. In my honestly held opinion I don't think it's in anybody's interest for me to hear from them ever again about this.

Who knows, I might then get some peace for a while, start getting better and maybe even remember how to look after myself again.

That Chocolate Teapot I mentioned? It Just Melted

An update of the post I wrote a few weeks back on one of my Freedom of Information forays.

I was asking about the system where NCC or one of its committees decides to delegate specific powers to an individual officer. Nothing wrong with the basic idea, after all arranging a council or committee meeting is time consuming and it's inefficient to have to do so for every itty bitty little thing.

However it's a process that needs to be applied carefully and appropriately and you need to keep track of it, otherwise you could get any idiot making decisions without anybody knowing about it (stop sniggering at the back...)

Anyway, last time we looked NCC had sent me a register of officers with delegated powers, it's just that it was from 1998. This seemed a bit inadequate to me so I asked for a review.

I have now had a response to that request and it is pretty much as I suspected. That really is the most up to date record that they have. That is really fucking shocking.

There are two things that strike me about this response. The first concerns the manner in which Information Governance has confused the provision of a specific document, an up to date register which they say doesn't exist, with the provision of information. The information that I asked for clearly does exist, no council officer is given 'A' delegated powers unless it is agreed by full council or one of its committees. So details of such officers are contained in the minutes of those committees' meetings. The fact that nobody could be arsed to keep track of them in a central register is neither here nor there.

I did wonder if they would claim that the information existed but that it could only be provided at disproportionate cost. This is the one they initially tried it on with my attempts at getting info about Discretionary Housing Payments. It's a useful way for councils to dodge providing information and usually involves claiming that a search of eleventy thousand documents will be required (in reality usually a few hundred) and that each document will take 45 minutes to examine (in reality about 5. They always say 45 minutes though in order to look like they've thought about it, 'about an hour' sounds just too throwaway). They then tell you that this work will cost you £25/hour to do (in reality it's done by an admin worker on about £8/hour) and present you with an estimate for the total cost which is slightly more than the budget for their entire libraries service.

It's a win/win situation. Either they get out of putting embarrassing information into the public domain or, if you're daft enough to cough up they get a piece of work done that they should have been doing anyway and make a tidy profit to boot.

The second, and most important, aspect is that the full implication of this decision is that NOTTINGHAM CITY COUNCIL HAS ABSOLUTELY NO IDEA WHO IS GOING ABOUT THE PLACE EXERCISING EXECUTIVE POWERS ON ITS BEHALF.

Make no mistake this is profound. Everything that any NCC council officer does in the course of her/his job is done in the name of Nottingham City Council which in corporate terms means the councillors. Delegation of powers cuts to the heart of local government, it couldn't function otherwise and there are very long and detailed documents in the council's constitution which set out how powers must be delegated. With no up-to-date record how do we know that powers have been delegated appropriately and legally?

On a personal level, this will have an impact on my 'Gardengate' case. A significant part of my defence is that the Development Control Committee alone has the power to decide on enforcement actions as determined by the constitution adopted by full council in May 2003. NCC claims that officers involved have delegated authority to do so and have cited a committee decision made prior to the adoption of the new constitution as evidence.

To my mind this development is another nail in their argument's coffin. If we assume, safely in my view, that delegated powers can be removed as well as awarded how can NCC prove that their officers have the relevant delegated powers if no record has been kept of the comings and goings of delegation decisions since 1998?

And the Chocolate Teapot Award Goes To...

Another day, another Freedom of Information request.

This time I wanted to know which NCC officers had been formally delegated powers to act on behalf of the council on their own initiative, referred to in the Constitution as 'A Delegated Powers' (see p27 of Appendix 6(d)).

I now have a response, including the list of delegated powers here. Have a look and see if you can work out what's wrong with it. The clue's on the front cover. At the bottom, small writing. Got it?

"Issue Date: October 1998"

So the document they have sent me is 12 years out of date. Clearly it was prepared when NCC got unitary status and hasn't been looked at since. Hardly any of the committees and departments even exist any more and within that time frame NCC has given itself an entirely new constitution. For all I know, some of the functions listed may not even be the responsibility of NCC anymore. And, most importantly, what of delegations that have been made since? Or been modified or removed and placed back with a committee or the Executive? How does anybody at NCC know who's supposed to do what?

This is really rather shabby and of course I've requested a review. However I wonder if they will be able to provide anything else? It really wouldn't surprise me if they haven't kept it up to date. I shall let you know what happens.