Cunning Stunt

You might guess from the title that I'm not a particularly happy blogger. And if you'd guessed 'Freedom of Information' you'd be spot on but I don't think that deserves a prize.

This one goes back to the Radford Unity Complex affair. That's the one where a Nottingham Arts group were strangely offered a former school at around half its market value and the council's legal services forgot to take into account that there were a bunch of community groups based there who hadn't been consulted properly and hadn't been served a valid notice to quit. The arts group were represented by an agency called Artreach.

So, I thought it might be an idea to ask for details of all the negotiations between NCC and Artreach because it seemed a bit fishy that there should be such a rush to get this particular group into a former council property at the expense of a number of voluntary groups and at an apparent loss. And there was evidence of JoCo being involved too.

So, I made my request on 8 November 2010 and NCC acknowledged it the same day. Then silence until I requested an internal review on 8 December 2010. This was acknowledged the next day and that was the last time I heard from them until today.

In the meantime I sent numerous chase-ups, the ICO wrote on 9 March 2011 instructing NCC to reply within 10 days which was ignored. By that I mean that the ICO told me clearly that NCC did not respond to any of their letters and chase-ups. Despite this it took until 28 July for the ICO to issue a decision notice which, because NCC had not provided any response at all, could only be framed with reference to s.10 of the FoIA i.e. the time limits for a reply.

Now, give it 5 days and suddenly NCC provides a response. After over 8 months. Here is the reply they sent.

As you can see, they have refused to provide the information under s.43(2) FoIA i.e. that its release could damage the council's commercial interests. The effect of this is that I am back at square one with regards to challenging the refusal because the ICO decision notice couldn't deal with s.43(2) because they obviously had no idea NCC would rely on it. I thought I was cynical but I have to admit I didn't see that one coming.

Now I was recently accused by a commenter of being a 'conspiracy theorist' so if he's still around I suggest he sits up and pays attention. Because I am extremely suspicious of a public authority ignoring a FoI request for 8 months, 7 months longer than the time limit for a reply, then, 5 days after the decision notice arrives, issuing a refusal notice on the grounds of an exemption.

Now why would they do that? Surely it would have been sensible to issue the refusal notice a bit sooner, keep the ICO informed of what was going on and then any appeal I make to the ICO could have included arguments around the exemption relied on. The only 'good' answer to this is that it took Legal Services all this time to draw up the grounds for refusal which, bearing in mind how they dealt with the RUC issues, isn't totally unbelievable.

The thing is, there is no actual time limit in the legislation for dealing with internal reviews. Guidance says 20 working days (as does NCC's own procedure) but a quick leaf through Whatdotheyknow.com website's NCC pages reveals that this is rarely complied with. So I have to sit and wait for NCC to do an internal review (which I have requested natch) and, presuming a refusal, go to the Information Commissioner again. Worse still, if NCC simply ignores my review request, the ICO is likely to simply 'instruct' NCC to provide a reply within 20 working days and it's a hell of a battle to get them to take such cases seriously. Essentially, we're probably looking at at least as long again before we get a result and that depends on the ICO finding in my favour which can't be relied on.

I'm sorry but is there anybody reading this who doesn't think this was deliberate? A particularly dishonest ruse to stop or seriously delay a matter that might embarrass JoCo and others reaching the public domain? All this delay being a mistake? Bollocks on stilts.

Freedom of Information Round-Up

The latest installment in what I'm sure I'm obliged to call an occasional series on NCC's contempt for the Freedom of Information Act.

We have the following cases outstanding and significantly delayed -

Request about area based grants. Submitted on 28 September and no response so it is over two weeks out of time. Internal review requested.

Question about One Nottingham's recruitment process for its Chief Exec. Submitted on 25 September, completely ignored bar an initial acknowledgement although they didn't bother acknowledging my review request. Approx 3 weeks out of time.

Requests for copies of portfolio holder decisions withheld 'in the public interest'. Two cases here and they are both absolute shockers in the deliberate and cynical use of BS legal arguments and delaying tactics. The first one was submitted on 18 August and got an (expected) refusal pretty quickly. I requested a review which they initially refused to carry out at all which is unprecedented and indefensible. Since then there has been a mixture of delaying tactics including a promise to provide a response on 1 November which never materialised. In other words they told a bare faced lie. It's now with the Information Commissioner.

The second portfolio decisions case is similar except they didn't bother with the refusals but went straight to the delaying tactics. It's now been outstanding since 2 September but, because of the delaying tactics, including an undelivered promise to provide a response by 28 October, I didn't get a review request until then.

Not to mention Stephanie Pearson's desperate attempts to imply to the Information Commissioner that there is something untoward in my requests for information (it's called campaigning luv).

So lies, delaying tactics, stonewalling and false implications of impropriety. All of these cases have something in common; the answers are likely to be embarrassing. Does it get any more cynical than this?

More NCC Incompetence on Freedom of Information - Or Stonewalling?

NCC is proper taking the piss on a couple of my Freedom of Info cases, in particular this one.

I requested information about a bunch of portfolio holder decisions because there was a slew of them that were claimed to be 'exempt' from publication under Schedule 12A of the Local Government Act 1972. I've been suspicious for a while that NCC is abusing this provision in order to hide things which would be politically embarrassing as opposed to being genuinely against the public interest to publish. The outrageous attempt to cover up the attempt to commission political advice paid for from public funds is an example of this.

Uncharacteristically quickly, albeit unsurprisingly, I received a response refusing my request. I therefore requested a review, so far, so routine.

Then it got a bit weird because Information Governance wrote back saying that they would not be 'actioning' my request. This was a flagrant breach of the Freedom of Information Act and I wrote back saying that I was treating their response as a refusal of my review, at which point they wrote back, grudgingly agreeing to provide a response.

The issue resolves around the interaction between the Freedom of Information Act and the myriad other bits of legislation designed to keep us in the dark. The FoIA has a number of exemptions, some of which involve a 'public interest' test, some of which are absolute. One, under s.44 says that if publication is prevented by other legislation then it is absolutely exempted under FoIA, the idea being to prevent two bits of law conflicting.

The Information Commissioner has previously ruled on whether s.44 FoIA applies when Sch 12 LGA has previously applied and has decided that it doesn't, saying -

"50. The public authority has argued that schedule 12A of the Local Government Act 1972 operates as a statutory bar to disclosure and therefore the exemption at section 44 of the Act is engaged.
Schedule 12A sets out categories of information considered to be “exempt information” – i.e. information that is exempt from the duty to disclose under the Local Government Acts. It has been
replaced by Schedule 12A of the Local Government (Access to Information) (variation) Order 2006 (SI 2006/88).

51. It is the Commissioner’s belief that schedule 12A operates only to exempt information from being disclosed for the purpose of the formal decision-making process and other local government
proceedings. The Commissioner does not accept that information which is exempt under those provisions for those specific purposes is necessarily exempt from disclosure under the Freedom of
Information Act. When a request to which the Freedom of Information Act applies is received, the relevance of any exemptions under that Act must be considered as at the time the request is received.

52. Accordingly, it is the Commissioner’s view that schedule 12A does not operate as a statutory prohibition to disclosure under the Act and therefore the exemption at section 44 of the Act does not
apply in this instance."

In other words Sch 12A doesn't automatically trigger an exemption under s.44 but it is still possible that one of the other exemptions may apply and a public authority is obliged to consider the request under those terms.


Anyway, it all went quiet for a bit and I wrote again to check they were still intending to respond and they said that they would do so by 27 October. This date passed, another reminder from me and a promise that yes, a response will now be provided by 1 November. It will not surprise you to hear that I am still waiting so I have sent it off to the Information Commissioner.

In the meantime I received a final response on another case which turned on a similar point and gives a clue as to their thinking. They said -

"Firstly, it is the current position of this Authority that Schedule 12A can provide a prohibition on disclosure and that as a result, section 44 of the Freedom of Information Act 2000 may be engaged as the Schedule 12A prohibition, if remaining relevant, could act as a prohibition under another enactment. Further, and as has been previously stated to you, section 44 of this Act is absolute and no test of public interest is required in order to apply this exemption and withhold the information, although it is accepted that in the case of Schedule 12A applications, the Schedule 12A must be re-assessed to see if it is still relevant, and in making this re-assessment a public interest test has to be applied."

Rather looks to me that they have (deliberately?) misinterpreted the Information Commissioner's ruling. They think that all they have to do is to have another think about the public interest element of their original Sch 12A decision and, if they consider it to apply, s.44 of the FoIA is automatically invoked which provides an absolute exemption. I think that the Information Commissioner is saying that Sch 12A doesn't provide a bar to publication and FoIA refusals must be based around the exemptions specifically set out in that Act.

If you're still with me you're probably wondering what's the difference, you're still not getting the information?

Well, I'm betting that NCC will be arguing that only they have the right to decide whether information is exempt from publication under Sch 12A LGA and that an absolute exemption is triggered under s.44 FoIA, meaning the Information Commissioner has no right to intervene. Ergo, no external scrutiny of how they decide which information they decide to keep secret and no external scrutiny of their idea of a public interest test.

If, on the other hand the alternative interpretation holds the Information Commissioner will have the opportunity to assess whether a current FoIA exemption applies, including considering a public interest test. This holds out the possibility of ending what I suspect is a practice of abusing the provisions in the LGA to hide politically embarrassing information.

The unnecessary delays and initial attempt to persuade me that they didn't even have to carry out an internal review suggests a desperation to keep the matter out of the hands of the Information Commissioner. This may give an indication of their optimism that their argument will sway the day.

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.

Freedom of Information Botheration

One of my freedom of information requests to NCC has taken a slightly sinister turn. The original request was refused, ok, nothing unusual there and quite dealable with by asking for a review. If that request isn't successful and NCC still refuses to give you the info then you go to the Information. In this case however, NCC has not simply reviewed the case and stuck by its decision to refuse to provide the info, it has refused to carry out a review at all.

Some background. There are quite a lot of circumstances where information is exempt from disclosure under the Freedom of Information Act and these are set out in Part II of the Act. Many of them you wouldn't argue with and many require a weigh up of the public interest before information is witheld.

One that's caused me a few problems though is s.44 which says -

"44 Prohibitions on disclosure

(1) Information is exempt information if its disclosure (otherwise than under this Act) by the public authority holding it—

(a) is prohibited by or under any enactment,

(b) is incompatible with any Community obligation, or

(c) would constitute or be punishable as a contempt of court.

(2) The duty to confirm or deny does not arise if the confirmation or denial that would have to be given to comply with section 1(1)(a) would (apart from this Act) fall within any of paragraphs (a) to (c) of subsection (1)."

and it pops up in this case. In particular para 1 (a) is what we're dealing with and it is what's known as an 'absolute' exemption in that such information is always exempt, there is no requirement to weigh up the public interest in releasing or withholding the info. The idea is that it prevents two bits of law being in conflict.

As far as councils are concerned there are various bits of legislation about the place requiring that the public are entitled to attend meetings and that agendas, minutes and decisions must be made available for inspection at council offices and stuff. For a decision made by an individual member of the executive the relevant law is in regulation 21 of The Local Authorities (Executive Arrangements) (Access to Information) (England) Regulations 2000. It refers to exceptions to these requirements known as 'exempt information' which is defined by Schedule 12A of the Local Government Act 1972. These requirements to make documents available are in addition to the FoIA and in some cases pre-date it.

Now NCC has been assuming that anything covered by the definitions in Sch 12A is effectively secret. Rather handily, the person who decides whether an executive portfolio holder's decision is covered by the 'exempt information' definition is the portfolio holder her/himself. I'm sure you don't need me to suggest ways in which that could be abused.

So, NCC believes that sch 12A prevents them from publishing the information and that this in turn invokes the absolute exemption of disclosure under s.41 of the Freedom of Information Act. I'm not sure where they got the idea that it meant that they didn't even have to carry out a review, as far as I know they do have to in all circumstances, even if they believe the outcome is a foregone conclusion. Which they clearly do cos they think an absolute exemption to the Freedom of Information disclosure requirements applies.

This where the wonderfulness of the 'What Do They Know?' website makes an appearance. The site allows you to leave annotations on other peoples requests and there is a growing community of people who use this facility to give you tips and that's what happened here. A helpful chap called Matt left me a note providing a link to an Information Commissioner's decision which said that sch 12A does not necessarily invoke the s.41 absolute exemption for disclosure so I quickly passed the reference on to NCC which should give them something to think about for tomorrow.

What's more it set me off researching the legislation behind all this. Essentially, sch 12A does not prevent disclosure at all, it just defines what is classed as 'exempt information'. Other legislation, such as regulation 21 mentioned above sets out what must or must not happen to information so defined. In the case of regulation 21 an executive decision classed as 'exempt information' is not actually prevented from disclosure, it just means that there is no requirement for the council to make it available for inspection and the like, which there would be normally. It's not saying you CAN'T publish, just that you don't have to and therefore there is no prohibition on publication at all. The upshot of that is that s.41 of the Freedom of Information Act doesn't apply after all so there is no absolute exemption.

I'll be interested to see where NCC goes with this. My guess is that they'll apply another FoIA exemption but that will likely involve a public interest test which can be challenged. It will certainly rattle a few cages because I strongly suspect they've been using this assumed FoIA exemption to hide all sorts of embarrassing info. The decision to end CEHRNN's funding was one such decision. If they stop using it it will be small increase in accountability which can only be a good thing.

Covering Up

Not tribunal related this one, just some business as usual.

As you know I regularly feature portfolio holder decisions which in turn regularly feature wads of cash finding its way to PricewaterhouseCoopers. Occasionally I complain that not much info is given, e.g. the size of those wads of cash.

Different issue this time, NCC has now decided that they don't have to publish one of Councillor Clark's decisions to approve an NCC investment in some properties. See ref no 596 here.

The reasoning is as follows -

"That the Council in partnership with Nottingham City NHS exercise the option to purchase freehold interests in a number of properties for development. This decision is exempt from publication under paragraph 3 of Schedule 12A to the Local Government Act 1972 because it contains information relating to the financial or business affairs of any particular person (including the authority holding that information) and, having regard to all the circumstances, the public interest in maintaining the"

And yes, it does stop mid sentence like that which is presumably a clue as to how much thought goes into such decisions.

The question I have is how many portfolio decisions AREN'T about NCC's business affairs? And what happened to the principle of having the right to know what our taxes are being spent on?