Wednesday 18 June 2014

Kitelands Recreation Ground, Safety Inspections - UPDATE 1






Previous post:


9th December 2013 - rang Information Commissioners Office (ICO) office to check on progress.


Due to volume of work and staff reductions, they are still dealing with early September 2013 cases.


Watch this space!!!!!!!

http://biggleswadeonline.blogspot.co.uk/2013/12/kitelands-recreation-ground-safety.html

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On the 8th January 2014 I received an email from the Information Commissioners Office (ICO):

Further to our previous correspondence, I write to inform you that your case has now (today) been allocated to me to investigate. This letter will explain how I intend to do this. It will also provide you with contact details so that you can get in touch with me if you need to.  I am sorry that you have had to wait for your complaint to be addressed but I am hopeful that progress can now be made.

What happens now

Where possible the Information Commissioner prefers complaints to be resolved informally and we ask both parties to be open to compromise. With this in mind, I have written to the public authority and asked it to revisit your request. It may wish to reverse or amend its position. If it does, it will contact you again directly about this.

In any event, it must provide us with its full and final arguments in support of its position. Once I receive its arguments, I will consider its reply before either contacting you to discuss the matter further or preparing a decision notice. Further information is available on the Information Commissioner’s website:

On 18 June 2013 you made the following request for information:

“The British and European safety standard BS EN1176 and the Health and Safety Executive strongly recommend that all play areas have at least one inspection every year from an independent qualified body.

Can you provide me with a copy of the last independent inspection carried out at Kitelands please.”

The council responded on 16 July 2013 and stated that it “….would not expect to provide copies of actual inspection reports under the Freedom of Information act….”

The council provided an internal review on 26 September 2013 in which it stated that it was refusing to provide the requested information, citing clauses 2.2, 2.3 and 3.1 of section 39 of the Environmental Impact Regulations.

My investigation will look at whether the council has handled the request appropriately.

The scope of the case

The focus of my investigation will be to determine whether the council handled your request in accordance with the FOIA/EIR.  My initial view is that the council does not appear to have confirmed or denied whether the information you requested is held and that the Environmental Impact Regulations cited are not relevant grounds for withholding information.  I have asked the council to address these points in its response.

Please contact me within the next 10 working days, that is, by 21 January if there are matters other than these that you believe should be addressed. This will help avoid any unnecessary delay in investigating your complaint. If I do not hear from you by this date, my investigation will focus only upon the matters identified above.

If you have any queries at any time you are welcome to write to me at the above address, at casework@ico.gsi.gov.uk (please ensure that you quote the above case reference) or by telephoning me on the number below.
 
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In anticipation of Biggleswade Town Council response to the ICO, I emailed the ICO on 9th January 2014:

Thank you for your email of 8th January 2014.

Just to clarify my initial request (18th June 2013) was for a copy of Independent Safety Inspections. You quite rightly say that the Council did not confirm or deny that they had this information.

In their email of 16th July 2013 they said “The Council has competent individuals within it’s workforce that undertake a programme of routine, operational and annual inspections for all Town Council play facilities. I would not expect to provide copies of actual inspection reports under the Freedom of Information act ....,

On the 27th July 2013 I asked for a copy of these inspections carried out by the Council staff or the reasons why they could not provide it under the FOI.

From past experience with this Council they may well say that they do not have independent inspections carried out, and expect this to be an end of the matter but if there no independents inspections then they should provide a copy of their inspections or provide a valid reason why they cannot.

I am sorry I am labouring the point but I have had to come to yourselves before because of non- compliance by Biggleswade Town Council.

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13th January 2014, response from ICO:

Thank you for your email. 

I note the points you make and I will consider these as part of my investigation.  The council has until 4 February to address my enquiries.  I will contact you with an update as soon as I receive a response.  If you have any questions in the meantime please do contact me.

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10th February 2014, response from ICO:

I am writing with an update about your complaint.

The council has now confirmed that the information which it previously withheld from you, namely the "independent inspection carried out at Kitelands", is not actually held.  I have directed the council to write to you to confirm this.  I have also advised the council that the Commissioner considers it poor practice for authorities to apply exemptions or exceptions to withhold information before checking whether the relevant information is actually held.  If the council had properly considered your request at the time it was received, it is likely that you would not have needed to submit your complaint to the Commissioner and incur the delays you have experienced.

In terms of your complaint, as the information in question is not held there are no steps which any decision notice issued by the Commissioner could require the council to take.  In view of this, you may decide that you are content for your complaint case to be closed.  Please let me know how you would like to proceed by 21 February.  If I do not hear from you I will assume that you are happy for your case to be closed.

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13th February 2014, my response to ICO:

I am sorry but I am not content for my complaint to be closed.

I did email you on the 9th January 2014 as I predicted exactly what has now happened.

My email of 9th January 2014.

Just to clarify my initial request (18th June 2013) was for a copy of Independent Safety Inspections. You quite rightly say that the Council did not confirm or deny that they had this information.

In their email of 16th July 2013 they said “The Council has competent individuals within it’s workforce that undertake a programme of routine, operational and annual inspections for all Town Council play facilities. I would not expect to provide copies of actual inspection reports under the Freedom of Information act ....,

On the 27th July 2013 I asked for a copy of these inspections carried out by the Council staff or the reasons why they could not provide it under the FOI.

From past experience with this Council they may well say that they do not have independent inspections carried out, and expect this to be an end of the matter but if there no independents inspections then they should provide a copy of their inspections or provide a valid reason why they cannot.

and you responded on the 13th January 2014, saying “I note the points you make and I will consider these as part of my investigation” It does not appear to me that you have.

The Council refused me copies of their inspections claiming exemption, the internal review they carried out was about not providing me with a copy of their inspections.

It had nothing to do with independent inspections which they have now confirmed do not exist.

 My email request to Biggleswade Town Council dated 27th July 2013 - “Firstly can you tell me what makes these individuals competent to carry out these inspections and secondly can you now provide me with copies of these inspections for Kitelands Recreation Ground that were carried out in the last 12 months. If you consider the information is exempt, please inform me under the Act what exemption you are claiming.

I would be grateful if you could ask the Council to revisit my request of 27th  July 2013, and provide you with full and final arguments in support of its position.

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13th February 2014, ICO response:

Thank you for your email.  Please accept my apologies for the confusion here.  I have now been in contact with the council and have asked it to reconsider whether the relevant inspections it has conducted itself can be disclosed.
I will contact you with an update as soon as I have received the council's response.

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12th March 2014, email from ICO

Further to my previous email I am writing with an update about your complaint. 

I am still waiting to receive the council's final submissions in relation to the withheld inspection information.  Unfortunately, as a result of the absence of key personnel at the council, its response to me has been delayed.  I am pursuing this and, should the council fail to respond within the next week, it is likely that I will draft a decision notice which will set out my conclusions on the basis of the available evidence.

Again - I apologise for the initial confusion about the terms of your complaint but I can assure you that I am trying to resolve this matter as quickly as possible.

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21st March 2014, email from ICO

I am writing with an update about your complaint.

I have now received the council's final submissions in relation to the withheld information.  For the avoidance of doubt this is:

"....what makes these individuals competent to carry out these inspections and secondly can you now provide me with copies of these inspections for Kitelands Recreation Ground that were carried out in the last 12 months."

I am now setting out my conclusions in a decision notice which I hope will be issued as quickly as possible.  Again, I am sorry for the earlier confusion in the handling of this matter.  If you have any questions ahead of the issuing of the decision notice please do get in touch.

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24th March 2014, email from ICO.

I am writing with an update about your complaint.

I have completed a draft of a decision notice which sets out my conclusions about the council's handling of your request.  The notice will be reviewed by my manager and, providing no major revisions are needed, it should be issued within the next week or so. 

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The seven page decision notice was issued on 27th March 2014 and sent to me by letter.

It is too large to reproduce here but it is publicly available at:


The main conclusions are:

1. The complainant has requested information relating to play area inspection reports. Biggleswade Town Council (the “council”) provided some information but withheld other information, citing clauses of the Environmental Impact Regulations. During the Commissioner’s investigation the council revised its position, stating that it considered that the request was vexatious.

2. The Commissioner’s decision is that Biggleswade Town Council has wrongly declared the request to be vexatious under section 14(1) of the FOIA.

3. The Commissioner requires the public authority to take the following steps to ensure compliance with the legislation.

Issue a fresh response under the FOIA without relying on section 14(1) of the FOIA.

4. The public authority must take these steps within 35 calendar days of the date of this decision notice. Failure to comply may result in the Commissioner making written certification of this fact to the High Court pursuant to section 54 of the Act and may be dealt with as a contempt of court.

The 35 day period due to expire on Thursday 1st May 2014.

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Quoting from the ICO Decision Notice

The council has argued that the complainant maintains a blog which contains numerous negative entries which are routinely critical of the council.

The Commissioner considers that, as part of the democratic process public authorities should expect to be subjected to a degree of scrutiny and criticism.

In this instance, having viewed the blog in question, the Commissioner has not found any examples of postings relating to the council which might suggest a disposition towards causing disruption, irritation or distress. As the council has not directed him to any specific postings which provide evidence of this intent, the Commissioner does not consider that the complainant’s blog can be considered as relevant in determining whether the request is vexatious.

The council has also stated that the complainant has a long history of submitting requests to the council and it considers it is arguable that this demonstrates intent to cause annoyance and disruption.

In submitting this argument the council has not provided the Commissioner with any examples of previous requests made by the complainant, nor has it confirmed the number or frequency of the requests.

The council’s argument (as the Commissioner understands it is that) is that the request focus, which identifies concerns about play area safety, has been met by the council’s confirmation that inspections have been conducted. The council appears to suggest that the complainant’s refusal to accept this and their persistence in their request for copies of the inspection reports provide evidence that the request is vexatious.

The Commissioner notes that the council has not disputed the serious purpose or value of the request. In relation to its argument that the complainant has been given assurances about play area safety, the FOIA provides a right of access to recorded information and it is not for authorities to judge what a requester needs and should be satisfied with, particularly in cases such as this where an objective reading of a request clearly identifies what is being asked for. 

UPDATE 2 MAY FOLLOW SHORTLY 
THAT DEPENDS ON WHAT THE COUNCIL DOES OR DOESN'T DO  NEXT



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