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.
_________________________________________________________
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.
________________________________________
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.
____________________________________________
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.
__________________________________
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.
_____________________________________
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.
___________________________________
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.
________________________________
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.
________________________________
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.
___________________________________________
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.
_______________________________________
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
