Mrs Angry and the Information Commissioner: the dog that didn't bark, and the one that bit

The dog that didn't bark in the night: Barnet Council, the ICO, and a mystery solved

Ten days ago, on the 30th April, the following announcement was made by the Information Commissioner:

"The Information Commissioner’s Office (ICO) has announced that three public authorities will be monitored this quarter over concerns about the timeliness of their responses to freedom of information (FOI) requests.

 

Under the Freedom of Information Act a public authority must respond to an FOI request within 20 working days. The Metropolitan Police Service, the London Borough of Barnet and Manchester City Council are being monitored after the ICO received a significant number of complaints about each authorities’ failure to respond to requests within the statutory time limit. 

The monitoring period will last until 30 June 2013. Failure to show signs of improvement during this period may result in enforcement action. 

Commenting on the announcement of today’s monitoring list Information Commissioner, Christopher Graham, said:

“Responding to freedom of information (FOI) requests within the time limit of 20 working days is not only a legal requirement under the FOI Act, but also an important means of demonstrating transparency and accountability to the UK taxpayer. 

“The three authorities on today’s list have been selected because they are failing to respond to FOI requests in a timely manner and are generating a high number of complaints to my office. We expect to see clear signs of progress throughout the monitoring period.

“We are aware of further concerns expressed about shortfalls in the performance of some government departments. We are reviewing the most recent set of statistics issued by the Ministry of Justice and comparing these with our own experience in dealing with complaints about these departments.”

The latest monitoring exercise follows a similar monitoring period which took place during the first three months of this year, the results of which will be published in the coming weeks."

 

This is the second time in recent years that Barnet has been put on 'special measures' by the Information Commissioner. And why, you may be wondering, is our council back on the naughty step?

Cast your mind back, readers, to last summer, and the strange tale, covered in posts such as this:

http://wwwbrokenbarnet.blogspot.co.uk/2012/08/the-death-of-one-barnet-awfully-big.html

reporting the extraordinary gaffe made by our new Director of Place, Ms Pam Wharfe, in an email to Barnet Council staff, in regard to one of the two massive One Barnet privatisation contracts being tendered. 

Ms Wharfe referred to the negotiations over the second contract, the DRS bundle, originally estimated to be worth around £275 million, and informed the council drones that: 

'we have decided to form a joint venture organisation with the successful bidder'.

Oh, we thought ...  have we? Who is we? 

'We' turned out to be not the elected members of the council, or even the leader, Richard Cornelius, away in France on holiday: 'we' were the senior officers of Barnet Council, acting in defiance of the democratic process and making major policy decisions that they were not entitled to make. 

Richard Cornelius knew nothing about this 'decision'. And at a subsequent scrutiny meeting, Cornelius declared not once, but three times, that he still knew nothing about the Joint Venture proposal.

Under some pressure, Ms Wharfe helpfully explained a few days later after her announcement how this decision, which she later presented as not a decision at all, had come to be made, or not made - she stated:

“...the project Board recommended to Corporate Directors Group that this be formally advanced in discussion with bidders and indeed is currently our preferred option.”

Our preferred option. Mmm.

Mrs Angry was intrigued. Corporate Directors Group, eh? 

She thought it might be useful to see how the decision which may or may not have been a decision came to be made, or not made. She therefore made a Freedom of Information request for the minutes of these meetings, for the relevant period. 

Oh dear: this request was turned down. The reason was, she was told, that the material she wanted was due to be put in the public domain, 'imminently', therefore ... it must be kept secret until then.

Ah. Mrs Angry thought this was a ridiculous answer, especially as one innocuous set of minutes was released, with no logical explanation, but not others from the same period. She protested that this was not an adequate response.  In fact, this was a clever move by Barnet as an intention to publish material at some unspecified date in the future is one way of evading the requirement to respond to FOI requests, and is hard to monitor. In the end the ICO lost patience with the council's excuses for not publishing, and clearly managing to drag the matter out over a very lengthy period.

When she objected, the council said there would be an appeal. There was not. Nor, as months passed by, despite many efforts, would Barnet Council respond to her perfectly reasonable and polite enquiries as to what was happening to the appeal. She therefore complained to the Information Commissioner/ICO. 

In the meanwhile, the tender process for DRS, and indeed the £750 million NSCSO process continued. 

Now read on: here is the finding, from the ICO, after months of  determined effort by the assiduous case officer - and some assistance from Mrs Angry:

Dear Mr ****** (council officer's name redacted on the grounds of possibly misplaced sympathy by kind hearted Mrs Angry)

Freedom of Information Act 2000 (FOIA)

Complainant: Ms Theresa Musgrove (aka Mrs Angry)

I write further to the recent and concerted correspondence between the Commissioner and the Council concerning Ms Musgrove’s information request of 28 August 2012 for copies of the minutes of all Barnet Council’s Directors’ Group meetings since the beginning of December 2011.

The Council initially responded to this request on 25 September 2012 and confirmed that it was withholding the minutes requested under Section 22 of the Act as it was the Council’s intention to publish the CDG minutes on its website in a planned programmed way, by quarter, six monthly in arrears.  The Council advised that the first set of minutes would be published ‘imminently’.  For reasons which were not explained, the Council provided Ms Musgrove with a single set of minutes from January 2012.

Ms Musgrove subsequently contacted the Council to express her dissatisfaction with the response provided and asked a number of questions about the same, including why, if there was a six month delay, no minutes had yet been published.  The Council reasonably chose to treat this as a request for an internal review of its decision. 

What was not reasonable, however, and what initially prompted a complaint to the ICO by Ms Musgrove, was the fact that more than four months passed before the Council provided its internal review decision on 21 February 2013 (the Commissioner having initially contacted the Council to query this failure on 5 February 2013).

The ICO guidance on the time which can be taken to carry out an internal review is clear and even in exceptional cases, this should not exceed 40 working days.  This request was neither exceptional nor complicated and the internal review should have taken no longer than the usual 20 working days expected.  For a public authority to take more than four months to provide an internal review is clearly not acceptable and both frustrates and undermines the purpose and value of FOIA.

The internal review upheld the use of Section 22 and whilst correctly noting that a public authority relying on this exemption is not required to provide an exact date of planned publication of the information requested, acknowledged that it would have been helpful for the Council to have done so in view of its Section 16 duty to provide advice and assistance.  Ms Musgrove was advised that (unexplained) ‘unforeseen circumstances’ had caused a delay in publication of the minutes since the original response and an apology was made for the anomalous provision of one set of minutes from January 2012. 

Copies of CDG meeting minutes from January to June 2012 were provided, with the Council confirming that Section 40(2) redactions had been made with regard to junior staff.  The Council confirmed that its programme of publication of the CDG minutes would begin at the end of March 2013 and that the minutes of the meetings held in July, August and September would be published at that time.

What happened next in terms of the Commissioner’s investigation has already been exhaustively documented and detailed in communications between all involved parties and the Commissioner has not repeated these in this letter.  The Council finally confirmed that it had published all the outstanding minutes which were within scope of the request on 17 April 2013, more than two weeks after its own stipulated deadline. 

In-between the provision of the internal review to the complainant and the publication of the outstanding minutes the Commissioner has been required to engage in time-intensive and repeated communications with the Council in order to rectify shortcomings and anomalies with its application of Section 40(2) and the approach taken to the redaction of certain names within the minutes. 

Of most serious concern is that despite the Commissioner having been originally assured that only the names of junior or non-public facing individuals had been redacted from the minutes disclosed to Ms Musgrove, it soon transpired (mainly thanks to information provided to the Commissioner by Ms Musgrove) that some of the names redacted were actually very senior personnel, mostly working for the One Barnet implementation partners, Agilisys/iMPOWER. 

Given the assurances provided to the Commissioner about the basis for the Section 40(2) redactions, and the fact that the Council has its own Redaction Policy, it is a matter of real concern that the names of the senior personnel involved should have been redacted, particularly given the public interest background and context to this request.  Requesters should not have to carry out their own investigations (or be put to the time and trouble of providing the Commissioner with the necessary information to do so) to ensure the accuracy or veracity of information disclosed under FOIA. 

What has been particularly frustrating and unacceptable about this particular case is the number of times that the Commissioner has had to return to the Council to ensure the proper and proportionate application of Section 40(2).  It has led to a hugely disproportionate amount of time and resources having to be expended on what should have been a straightforward Section 40(2) matter.  That disproportionate expenditure has not just been confined to the Commissioner, but also to the complainant and ultimately the Council itself. 

Whilst the Commissioner acknowledges and appreciates the efforts which you have personally made to address the Section 40(2) shortcomings and issue corrected and appropriately redacted minutes, the way in which this matter has been handled by the Council falls seriously short of what would be expected by a public authority in terms of its compliance and commitment to its FOIA duties and obligations.

Earlier this week the Commissioner announced that the Council is to be monitored (along with two other public authorities) this quarter because of concerns over the timeliness of its responses to FOI requests.  Important though timeliness is, so is a public authority’s ability to demonstrate due engagement with the principles underlying FOIA and correct application of the exemptions contained within the Act.

The Commissioner would not expect to see a repeat of the issues which have delayed and frustrated the resolution of this particular request in future requests managed by the Council.  The Council should be in no doubt that it needs to learn lessons from this case so as to reduce the scope for future complaints being made to the ICO and the possibility of further formal action being taken by the Commissioner.  

This specific case is now concluded and Ms Musgrove has been provided with a copy of this closure letter.

Yours sincerely

Mr X, senior case officer, ICO

(Name redacted by Mrs Angry, in accordance with her policy on rewarding the virtuous and punishing the guilty ...) 

So: Barnet Council spent eight months obstructing a perfectly legitimate request for information - information which they themselves claimed was of a category that ought to be in the public domain. They claimed it was due to be published 'imminently'. Funnily enough, the dates that were due to be published coincided exactly with the rather arbitrary dates asked for by Mrs Angry, not according to any limit marked by yearly quarters or similar definition.

They refused to address the matter of appeal: they refused to respond to enquiries about the matter of the appeal. Even when the ICO became involved, they did everything they could to avoid compliance with the law: why?

Barnet Council did its best to withhold the information requested until after a time which, by sheer coincidence, we expected to receive the decision from the High Court in regard to the Judicial Review. 

Some material was released in February, but not the material for the period of most significance, ie during the summer months when the Joint Venture discussions took place. The material released in February was also full of redactions. At first, the ICO accepted Barnet's protests that they had redacted these names properly on the grounds provided by section 40 (2). It was only after long and careful examination of the material and suggestions by Mrs Angry as to the identity of those names, and the positions they held, that the case officer realised quite how deliberately obstructive the council was being. 

This revelation did nothing to improve the impression that the authority had already gained by its defiance of the FOIA in this case, and then when it became clear that several carefully chosen examples of the minutes were still being withheld ... one by one, the missing pieces were extracted, and Barnet Council dug itself deeper and deeper into a hole.

Many of the redacted names were external consultants working for Agilisys/iMPOWER, the One Barnet privatisation implementation partners whose bill, paid for by Barnet taxpayers, has now reached the obscene level of more than £6.3 million. The consultants were all senior executives, whose names most certainly should not have been redacted. Why then, we must ask, was Barnet so desperate to conceal their identity, and the evidence of their presence at the Directors' Group meetings?

The senior officers involved in these meetings are usually the same:  the Chief Executive, directors such as Pam Wharfe, Kate Kennally, Julie Taylor, Jeff Lustig. Ed Gowan, then heading the One Barnet programme as AD, features too. Mr Gowan has left Barnet and is of course now working for Agilisys.

Barnet told the ICO that the missing material would be published, belatedly, and failed to meet its own stated date. 

The material was eventually, belatedly, published and is now available here -

 http://www.barnet.gov.uk/downloads/download/1123/minutes_of_council_directors_group 

Coincidentally, this delay occurred during the time of the Review, and matched the drawn out timings of the process. This continued failure to comply with the request of the ICO did little to assuage the growing disapproval of the Information Commissioner, and during this period the commissioner's attention was drawn to what would appear to be a systemic practice of obstructive measures employed by the authority in regard to requests made in reference to politically sensitive issues.

These measures include delayed responses, but also the use of labelling at least two individuals as 'vexatious' when asking, in one case, only a few questions on a particular subject.

Barnet is keen on portraying those who make FOI requests as a burden on the taxpayer, diverting time and money on trivial matters. The reason the authority is now in trouble is, as the letter makes quite clear, that the council is itself deliberately expending a huge and totally unneccessary amount of resources in obstructing the proper process of the FOIAct. The material that is being requested should be in the public domain, easily accessible, and were more of this information available as open data, the number of FOI requests would fall proportionately.

The conflict that has arisen is as a direct result of our council, the Tory leadership, and more importantly the senior management team, refusing to accept the need to be open, or transparent, or accountable to the residents and taxpayers who live in this borough. Their attitude is at every point to resist the scrutiny of the community, even the scrutiny of elected members. Last year a Labour councillor asked for the minutes of the Directors Group and was told by a very senior officer that it was not 'appropriate' for him to do so.

We have just seen, in the High Court decision by Judge Underhill, that in regard to the £1 billion One Barnet programme, absolutely no consultation was carried out with residents in order to inform them about the proposals, and to seek their views. This devastating, wholescale pimping of our council services has been done by default, by stealth, in total secrecy, with no mandate, no debate.

Many bodies entrusted with the responsibilty of a watchdog often disappoint with their lack of teeth. In this instance, the ICO has proved to be one with a powerful bite. Those of us who have tried, with - oh dear - dogged determination, to uncover the blanket of silence which has been thrown over this process have had our efforts stalled - with varying success -at every point. The reaction  now from the Information Commissioner, and the consequent period of monitoring which has begun is not an action which is taken lightly. From now on we expect that our rights in law to ask difficult or embarrassing questions of our council will be upheld, and respected.

But does it come too late to help us, in regard to One Barnet? Have they managed to outwit us, or at least delay the release of information beyond the point where it is dangerous? Because here is the joke - a Friday joke, as traditional in Broken Barnet - the information which Mrs Angry wanted turned out not to be where it should have been. Unbeknown to our scheming council, information which was released has proved to be of use in other ways, but the original point of the request has been evaded.

One of the revelations thrown up by the questions asked by the ICO was provoked by Mrs Angry's puzzlement over references to the One Barnet Board. In one of the set of minutes it explained that when the same group of senior officers convened with consultants to discuss certain matters, ie One Barnet, it would be known by this name - as the One Barnet Board. Ah, said Mrs Angry, as it is the same body, please pass me the minutes of these particular meetings.

The response from Barnet was that there were none.

Hence the remarkable absence from the minutes received of references to the privatisations plans, and indeed, the discussion which led to Ms Wharfe's comment:

'we have decided to form a joint venture organisation with the successful bidder'

Whoever we were, whatever we said, what exactly we decided, the rest of us will never know.

CDG is a body of senior officers, but it has no executive powers. It cannot take decisions of such magnitude, outside of the democratic process. Nor can the One Barnet Board, of whose existence most of us were previously unaware. 

Worse than that, however, is the fact that such hugely important decisions were made, especially in the One Barnet context, unrecorded, unminuted by these senior officers - and with the unaccounted, unscrutinised involvement of external private consultants.

You may think that Richard Cornelius and his Tory chums run this council, and have directed the course of the One Barnet programme, admittedly without your knowledge or approval, but in your best interests, in their role as benevolent dictators. You would be wrong, if that is what you believe.

Mrs Angry would suggest to you that this tale of one Freedom of Information request, and the information requested which did not exist is, in its way, the tale of the dog who did not bark in the night, and says more in silence about the realities of political life, here in Broken Barnet, than could ever be said in words.