Monday, 7 January 2019

Me, Vexatious?


Glasgow City Council is following the example of neighbouring North Lanarkshire and South Lanarkshire councils by claiming that one my FoI Requests (about the WPBR) is 'vexatious'.

Now I think the Council is talking nonsense, but decide for yourself by reading the exchange of correspondence below. 

Mark Irvine 
“I would be grateful if the Council could confirm the following points in its FOI Review Response:


a) How many pages of handwritten notes are there in total?

b) In whose name or names are these vital documents recorded?
c) Is there is more than one single volume of notes and if so, how many?
d) Do the notes cover specific periods and if so, please confirm the dates involved?”

Glasgow City Council 
Please be advised that your request is being refused in terms of section 14(1) of the Act on the basis that it is vexatious. In particular, the Council is of the view that your request does not have a serious purpose or value and is designed to cause disruption or annoyance to the Council.

I suspect the matter will end up being referred to the Scottish Information Commissioner because the Council is desperate to prevent the truth emerging about the role played by senior officials during the introduction of the WPBR back in 2007. 

The chief executive insists that her officials acted in 'good faith' yet the Council is refusing to release crucial information about the WPBR which belongs in the public domain, if you ask me.  

I am also in the process of drafting a wider 'appeal' to the Scottish Information Commissioner over the Council's refusal to release its mysterious handwritten notes.

But what a palaver, I have to say, especially as the Council regards itself as a 'world leader' in terms of openness and transparency.  

And just to add a final 'Alice in Wonderland' touch to proceedings, sharp-eyed readers may notice that the Council's initial response has been sent "On behalf of Carole Forrest, Director of Governance and Solicitor to the Council" - and that the FOI Review process is also conducted by 'Carole Forrest, Director of Governance and Solicitor to the Council'.

    

07 January 2019

Carole Forrest
Director of Governance and Solicitor to the Council
Glasgow City Council



Dear Ms Forrest

FoI Review Request

I refer to the letter below from Glasgow City Council dated 21 December 2018 (Enclosure 1) and would like to submit a formal FOI Review Request for the following reasons.

1) I completely reject the Council's assertion that my FOI Request is vexatious and that it is designed to cause annoyance or disruption, not least because your claim is not backed up with any logical arguments or supporting evidence. 

2) The handwritten notes in question relate to the procurement, implementation, management and operation of the Council's controversial Workforce Pay and Benefits Review (WPBR) from 2005 onwards.

3) As you know, the WPBR was later condemned as 'unfit for purpose' by the Court of Session, Scotland's highest civil court, in August 2017 and since that landmark judgment the Council has understandably decided to replace the WPBR with the Scottish Joint Council job evaluation (JE) scheme. 

4) Looking back,  the Scottish Joint Council JE scheme should have been used in the first place, i.e. in 2007, not least because the Council subsequently wasted huge sums of public money defending this 'indefensible' scheme and its discriminatory practices, while running up a giant equal pay bill which will cost the taxpayer hundreds of millions of pounds to settle.

5) So, by any stretch of the imagination, this is a matter of enormous public interest and importance, from which it follows that it is perfectly reasonable for me to ask about the 'provenance' of these handwritten notes and what information they contain. Quite why the notes are 'handwritten' in the first place is a mystery, but that is a matter for another day.


6) I have to say I am surprised at the Council's reluctance to provide this information as I believe GCC has a duty to provide practical 'help and assistance' under the terms of the Freedom of Information (Scotland) Act 2002. In this particular case, the Council's response is deliberately obstructive and unhelpful, in my view. 

7) I would also point out that the response makes a mockery of the Council's publicly stated aim of Glasgow becoming a 'world leader' for openness and transparency because important records regarding major policy decisions such as the WPBR should be freely available to the public.

8) I suspect the Council's initial response has more to do with protecting the interests of senior officials, past and present, than it has to do with the interests of good local government - and the less than judicious use of public money in Scotland's largest council.  

9) I think, therefore, that it is entirely reasonable to expect the Council to answer the points I have raised instead of hiding behind a bogus claim that my request is 'vexatious'. For this reason I am sharing my FOI Review Request with the Party Group leaders and elected members of Glasgow  City Council.    

I look forward to your response and would be grateful if you could reply to me by email at: markirvine@compuserve.com

Kind regards




Mark Irvine

Enclosures x 2 

1 GCC Response letter dated 21 December 2018
2 FOI Request letter from Mark Irvine to GCC dated 10 August 2018


ENCLOSURE 1


GLASGOW CITY COUNCIL'S RESPONSE LETTER DATED 21 DECEMBER 2018


-----Original Message-----
From: FOI Reviews <FOIReviews@glasgow.gov.uk>
To: markirvine@compuserve.com <markirvine@compuserve.com>
Sent: Fri, Dec 21, 2018 3:26 pm
Subject: FOI Review - RQST6789912

Dear Mr Irvine 
On behalf of Carole Forrest, Director of Governance and Solicitor to the Council, please find attached Glasgow City Council's response to your request for review dated 11 September 2018.
Regards
FOI Review Team
Glasgow City Council

Glasgow City Council
City Chambers George Square Glasgow G2 1DU DX GW572
Hand Deliveries to: 40 John Street Glasgow G1 1JL



Our Ref RQST6789912
21 December 2018
By email: markirvine@compuserve.com
Dear Mr Irvine



REQUEST FOR REVIEW UNDER THE FREEDOM OF INFORMATION (SCOTLAND) ACT 2002 (THE “ACT”)

I refer to your email of 11 September 2018 requesting a review of the response by Glasgow City Council (the “Council”) to your request for information under the Act.

YOUR REQUEST
You submitted a request dated 10 August 2018 requesting that the following information be provided to you:

“Please provide me with a copy of the handwritten notes regarding the planning/implementation of WPBR from October 2005 to November 2006.”

THE DECISION
The Council emailed you on 7 September 2018 and provided you with a response to your request for information. The Council advised that it was unable to comply with your request as compliance would exceed the cost threshold allowed by section 12(1) of the Act and the fees regulations made under the Act (the limit is currently £600). The Council further advised that some of the information is exempt from release in terms of section 38(1)(b) of the Act as it would involve releasing personal information about third party individuals. The Council also explained that some of the information is exempt from release in terms of section 36(1) of the Act. In other words, the documentation consists of information in respect of which the Council could maintain a claim to confidentially of communications in legal proceedings.

YOUR REQUEST FOR REVIEW
On 11 September 2018 you emailed the Council requesting a formal review of the decision. Unfortunately the Council did not receive this email. You made an application for a decision to the Scottish Information Commissioner on 17 October 2018. Following this, the Council carried out an investigation as to why it did not receive your email and the reasons for this were provided to you in the email of 12 November 2018 from Dr Kenneth Meechan. As this matter has already been addressed, this review has only considered the questions raised in your email of 11 September 2018. For ease of reference, your full review request is set out in the Annex to this letter.
Please be advised that the Council is treating paragraph 3 of your correspondence as a new request for information and our response is detailed below under the heading ‘New Request’.

THE REVIEW DECISION

I have carried out a full and impartial review of the initial response provided to you. I can confirm that I partially uphold the Council’s initial decision.

Section 12(1)
The Council initially refused your request on the basis that compliance with the request would exceed the cost threshold allowed by section 12(1) of the Act and the fees regulations made under the Act. Following my investigation, I am of the view that although it would take a substantial amount of time and staff resource to comply with your request it is unlikely to exceed the cost threshold of £600 which equates to approximately 40 hours of staff time (capped at £15 per hour).

Section 38(1)(b)
However, I do agree with the Council’s initial assessment that some of the informationcontained within the notes is exempt in terms of section 38(1)(b) of the Act. The information contains personal details of individuals and disclosure of this information would breach the Data Protection Principles contained within Article 5(1) of the General Data Protection Regulation. These require us to process personal information in a lawful, fair and transparent manner. The individuals concerned would not expect their personal details to be released in response to an FOI request. Accordingly, it would be unfair to the individuals concerned for such information to be released into the public domain.

Section 36(1)
In addition, I agree that some of the information is exempt from release because of the exemption contained within section 36(1) of the Act. In other words, the material in question consists of information in respect of which the Council could maintain a claim to confidentiality of communications in legal proceedings. While I have concluded that the exemption contained in section 36(1) applies in this case, the Council would still be obliged to release the information in response to your request unless the public interest in maintaining the exemption outweighs the public interest in disclosing the information. In this case, I take the view that only a compelling public interest would be sufficient to justify departure from the principle that communications between a lawyer and their client should remain confidential. On balance, I am of the view that the public interest in withholding the information outweighs the public interest in disclosing the information. I note that in your request for review, you have asked for clarification in relation to the type of legal advice contained within the notes. By way of advice and assistance, I can advise that the papers contain notes of meetings with both internal and external legal advisers.

Section 30(b)(ii)
On further inspection of the information, I am of the view that the Council should have advised you that the information is exempt from a request under section one of the Act because of the exemption contained in section 30(b)(ii) of the Act.
Some of the information consists of notes from meetings of the Council’s senior managementteam and is, in my opinion, exempt from disclosure on the basis that its release would prejudice substantially, or be likely to prejudice substantially, the free and frank exchange of views for the purposes of deliberation. This is because releasing the information would undermine the effectiveness of decision making within the Council’s senior managementteam. The papers detail management’s planning approach to the development of Workforce Pay and Benefits Review system and other related matters. Such candid discussion would be inhibited if information of this type were to be routinely released, to the substantial prejudice to the quality of the decision-making process and, in consequence, to the free and frank exchange of views for purposes of deliberation.While I believe the exemption contained in section 30(b)(ii) applies in this case, the Council would still be obliged to release the information in response to your request unless the public interest in maintaining the exemptions outweighs the public interest in disclosing the information. The Council acknowledges the significant public interest in openness and transparency and therefore recognises that any request under section 1 of the Act is potentially in the public interest.

However, there is a significant public interest in the Council being able to assess critically all factors involved when making decisions of this type, and to reach the best possible decision. On occasions this can only be done on the basis of candid advice and a free exchange of views, of a sort which cannot take place if all information is disclosed into the public domain. In the circumstances I feel that the specific public interest in safeguarding these decision making processes outweighs the general public interest in openness and transparency.

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Section 30(c)
I am also of the view that some of the information is exempt in terms of section 30(c) of the Act as its release would otherwise prejudice substantially, or be likely to prejudice substantially, the effective conduct of public affairs.
As noted above, the papers contain information detailing the management and planning processes in relation to the development of the WPBR system, including information provided by external consultants. The Council is currently developing a new employee grading structure to replace the WPBR. It is therefore essential that Council officials are able to communicate fully and frankly in order to identify issues, and negotiate, discuss and debate issues arising, in order to effectively plan and manage new Council processes.
If this type of information were routinely released into the public domain it would be likely tosubstantially prejudice the Council’s ability to undertake communications and discussions ofthis type in the future, particularly in relation to the new grading scheme. If Council officials are unable to engage in a free and frank manner without concern of publication before an agreed process has been reached, this would substantially prejudice the Council’s ability to ensure that it has all the necessary information required to make fully informed decisions.

While I believe the exemption contained in section 30(c) of the Act applies in this case, the Council would still be obliged to release the information in response to your request unless the public interest in maintaining the exemptions outweighs the public interest in disclosing the information. The Council acknowledges the significant public interest in openness and transparency and therefore recognises that any request under section 1 of the Act is potentially in the public interest.
However, I am of the view that the public interest in disclosure is outweighed by the greater public interest in Council officials being able to discuss and debate issues arising from new Council processes. It is in the public interest that officials are able to rely on high quality information and advice when planning and implementing new processes such as the Council’snew employee grading scheme. As noted above, there is also a strong public interest in maintaining the integrity of the process of free and frank discussion. In my opinion, disclosure of the information would substantially prejudice the candour and frequency with which issues are discussed, deliberated and revised in future which would substantially prejudice the decision making process.

RIGHT OF APPEAL
I hope you are satisfied with this response. However, if you are not you have the right to make an application within six months of receipt of this letter for a decision by the Scottish Information Commissioner. The Scottish Information Commissioner can be contacted as follows:

Address: Kinburn Castle, Doubledykes Road, St Andrews, KY16 9DS. Email: enquiries@itspublicknowledge.infoTelephone: 01334 464610
You can also use the Scottish Information Commissioner’s online appeal service to make anapplication for a decision:
www.itspublicknowledge.info/appeal
Thereafter a decision by Scottish Information Commissioner may be appealed on a point of law to the Court of Session.

NEW REQUEST
The Council is treating paragraph 3 of your email dated 11 September 2018 as a new request for information under the Act. You requested that the following information be provided to you:

“I would be grateful if the Council could confirm the following points in its FOI Review Response:
a) How many pages of handwritten notes are there in total?
b) In whose name or names are these vital documents recorded?
c) Is there is more than one single volume of notes and if so, how many?
d) Do the notes cover specific periods and if so, please confirm the dates involved?”

Please be advised that your request is being refused in terms of section 14(1) of the Act on the basis that it is vexatious. In particular, the Council is of the view that your request does not have a serious purpose or value and is designed to cause disruption or annoyance to the Council.

Right of Review
If you are dissatisfied with the way Glasgow City Council has dealt with your request you are entitled to require the Council to review its decision. Please note that for a review to take place you must:
  •   Lodge a written request for a review within 40 working days of the date of this letter
  •   Include a correspondence address and a description of the original request and the
    reason why you are dissatisfied
  •   Address your request to the Director of Governance and Solicitor to the Council:
    Director of Governance and Solicitor to the Council Glasgow City Council
    City Chambers
    George Square
    Glasgow G2 1DU
    You will receive notice of the results of the review within 20 working days of receipt of your request. The notice will state the decision reached by the reviewing officer as well as details of how to appeal to the Scottish Information Commissioner if you are still dissatisfied with theCouncil’s response. You must request an internal review by the Council before a complaintcan be directed to the Scottish Information Commissioner. For your information at this stage, an appeal can be made to the Scottish Information Commissioner by contacting her office as follows if you do remain dissatisfied with the outcome of the Council’s review decision -
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Address: Kinburn Castle, Doubledykes Road, St Andrews, KY16 9DS.
Email: enquiries@itspublicknowledge.info
Telephone: 01334 464610
You can also use the Scottish Information Commissioner’s online appeal service to make anapplication for a decision:
Please note that you cannot make an appeal to the Scottish Information Commissioner until you have first requested an internal review by the Council.
If you wish to submit a complaint to the Council in relation to the manner in which it has handled your request for information then you can do so by requesting that the Council review itsdecision. Details of how to request a review are set out in the above paragraph “Right of Review”.


Yours sincerely

CAROLE FORREST
DIRECTOR OF GOVERNANCE AND SOLICITOR TO THE COUNCIL

ANNEX

Review Request Dated 11 September 2018

1) In its answer to a previous FOI Request the Council claimed that it would take 66.5 hours and cost approximately £677.34 to provide relevant information on the WPBR based on an internal sampling exercise. The Council's letter of 14 May 2018 (Enclosure 2) refers along with my response dated 5 June 2018 (Enclosure 1). In this case I am only asking for a tiny fraction of the total WPBR information held by the Council which is discrete, easy to locate and is not spread across multiple office locations. I might add that taking photos of the pages rather than photocopying them would speed the process up considerably.
2) Therefore, I have to disagree with the Council's assertion that it would cost more than £600 to provide this information because the handwritten notes amount to one single document, from one single drawer of the nine individual filing cabinets, even allowing a generous amount of time for personal and/or sensitive details to be redacted. I hope that, on reflection, you will agree that the Council's claim in relation to Section 12 (1) of FOISA does not stand up to serious scrutiny.
3) I also have to say that I find it very strange that, in this day and age, the Council appears to be relying on handwritten notes as a means of recording and securing vital information, but leaving that aside for the moment I would be grateful if the Council could confirm the following points in its FOI Review Response:
a) How many pages of handwritten notes are there in total?
b) In whose name or names are these vital documents recorded?
c) Is there is more than one single volume of notes and if so, how many?
d) Do the notes cover specific periods and if so, please confirm the dates involved?
4) In my view there is a compelling public interest in accessing this information, including the legal advice given to the Council at the time, because my FOI Request goes to the heart of whether or not senior Council senior officials acted in 'good faith' over the introduction of the WPBR in 2007. Senior officials insist they acted in good faith, but how does this claim square with the introduction of a 37 hour WPBR 'rule' which was designed to disadvantage low paid, female dominated jobs? The WPBR handwritten notes almost certainly contain
the answer to this question.
5) As such, the handwritten notes are concerned with the conduct and good governance of Scotland's largest council and they are crucial to a proper understanding of the role played by senior council officials in 2005/07 during the introduction of the WPBR pay scheme - a scheme which has since been judged as 'unfit for purpose' by the highest civil court in Scotland, the Court of Session. For this reason alone, I would expect the Council's political leaders as well as its senior officials to support a policy of full and open disclosure.
7) So the issues surrounding the introduction of the WPBR in 2005/07 are of enormous public interest in 2018 given the long-running equal pay dispute in Glasgow City Council which has been raging for the past 12 years.
8) I find it hard to believe that the handwritten notes contain 'formal legal advice' because I have never heard of a Scottish local authority, or indeed any public body, receiving formal legal advice in the shape of handwritten notes. If the advice is from an official who just happens, or happened, to be a solicitor at the time (e.g Annemarie O'Donnell, Carol Forrest or Ian Drummond) I would argue this is not 'confidential' in a proper legal sense, but again I would ask the Council to clarify the nature of this 'legal advice' in its FOI Review Response.
9) I would also emphasises that I am open to suggestion about restricting the period of my initial request, if that would help get to the bottom of what is contained in the handwritten notes. For example, if the Council agreed to provide information covering the period October 2005 to December 2005, this would help to determine the significance (or otherwise) of the information involved and whether there would be merit in requesting similar information covering the original (and longer) period from October 2005 to November 2006.




10) Finally, can I say that council officials should be doing all in their power to live up to the Council Leader's publicly stated aim of Glasgow City Council becoming a 'world leader' for openness and transparency. To my mind, this means being honest enough to put all the relevant information into the public domain, even if this could prove inconvenient or embarrassing to senior council officials, past or present.



ENCLOSURE 2

FOI REQUEST LETTER FROM MARK IRVINE DATED 10 AUGUST 2018


-----Original Message-----
From: Mark Irvine <markirvine@compuserve.com>
To: annemarie.odonnell <annemarie.odonnell@ced.glasgow.gov.uk>; foi <foi@glasgow.gov.uk>
Sent: Fri, Aug 10, 2018 5:04 pm
Subject: FOISA Request



10 August 2018


Annemarie O'Donnell
Chief Executive
Glasgow City Council


Dear Ms O'Donnell
FOISA Request

I refer to the attached letter from Glasgow City Council dated 08 August 2018 and would like to make the following request under the Freedom of Information (Scotland) Act 2002. 

1) Please provide me with a copy of the handwritten notes regarding the planning/implementation of WPBR from October 2005 to November 2006 

I look forward to your replay and would be grateful if you could respond to me by e-mail at: markirvine@compuserve.com
Kind regards
Mark Irvine