FOI and NLC (30/01/15)

I am still struggling to make sense of the documents disclosed by North Lanarkshire Council (NLC) following my successful appeal to the Scottish Information Commissioner (SIC).

According to NLC an appendix to the CMT report had previously gone missing, but has recently been found again while other appendices were incorrectly numbered or labelled causing not a little confusion.

When I have to be I can be a very determined, even stubborn, person and I intend to get to the bottom of all this, so here's my latest exchange of emails with the Council's  freedom of information coordinator. 

Dear Neil

Scottish Information Commissioner Decision - Reference: 201402173

Thank you for your letter dated 23 January 2015.

I understand the points made in the second paragraph of your letter and accept your apology for not clarifying the position in your original disclosure letter dated 21 January 2015. 

Unfortunately, I do not understand what you are talking about in the third paragraph of the letter which is completely incomprehensible in my view. So, in relation to this paragraph can you please explain:

1 Which is the 'missing' appendix you are referring to at the start of Paragraph 3?

2 Why was this particularly appendix not saved along with the rest of the CMT report?

3 How did the document come to be labelled incorrectly and who 'signed off' on the document? 

4 How does the incorrect labelling affect the description of the document 'before' and 'after' this latest mistake by the Council was discovered?

5 What do the following words mean in plain English: "..as it was labelled incorrectly with the contents not according to the relevant text of the report,".

6 Which document is being referred to after the words "it became apparent recently that this document was related to the Corporate Management Team report of August 2005", exactly when did this become apparent and who was responsible for making this discovery?

7 Can I also point out that the Council's response has completely ignored the third paragraph of my letter dated 23 January 2015 which is reproduced below.  

3 If Appendix 4 was just wrongly annotated as Appendix 5, why has the Council been claiming for all these months that one of these documents was physically missing from its filing system? 

I look forward to your response to all of these individual points and plan to share this letter with the Scottish Information Commissioner as I believe the Council is failing to act in an open, transparent manner and its wider obligations under the Freedom of Information (Scotland) Act 2002. 

I enclose below, for easy reference, an extract from the SIC's Decision 253/2014 which sets out the Council's previous position in relation to the 'missing' Appendix 5 as this relates to my Point 7.

I will also be studying all of the documents very carefully and will get back to you as soon as possible, if I have any further queries or points of clarification.

Kind regards

Mark 

Extract from SIC Decision 253/2014

Section 17 - Notice that information is not held

10. In terms of section 1(4) of FOISA, the information to be provided in response to a request under section 1(1) is that falling within the scope of the request and held by the authority at the time the request is received, subject to qualifications which are not applicable in this case. Under section 17(1) of FOISA, where an authority receives a request for information it does not hold, it must give an applicant notice in writing to that effect.

11. The Council did not inform Mr Irvine that it did not hold appendix 5 of the report. The Council subsequently informed the Commissioner on 17 September 2014 that it did not hold appendix 5.

12. The Council explained that it had discovered that the appendix was missing when it was preparing its submission to an Employment Tribunal at which the Council was currently defending equal pay claims made against it. 

13. The Council stated that extensive searches had been carried out, commencing in May 2013, in order to locate this document for the Tribunal. In this respect, the Council stated that the author of the report had checked their electronic files and manual records. Searches had also been carried out of all records relative to job evaluation, including manual records. The Council stated that it had additionally conducted searches in other directories in case the appendix had been filed incorrectly. The Council had also checked with officers who had received a copy of the report in 2005, but had been unable to find a retained copy.

14. The Council stated that it was not known whether the information was destroyed or deleted and could provide no explanation as to why this appendix was not with the report and other appendices.

15. The Commissioner has considered the Council's submissions and its explanation of why it does not hold the information in appendix 5. Having done so, she is satisfied that the Council has conducted reasonable, proportionate searches to establish whether it holds this information. The Commissioner is surprised, given the importance that the Council has placed on the report, that the appendix cannot be located. However, on the balance of probabilities, she is satisfied that it does not hold appendix 5 of the report. 

16. In such circumstances, the Council ought to have informed Mr Irvine that it did not hold some of the information that fell within the scope of his request. By failing to provide notice to this effect (as required by section 17(1) of FOISA), the Commissioner finds that the Council failed to comply with Part 1 of FOISA.

Dear Mr. Irvine

Subject: FW: Scottish Information Commissioner Decision, Reference: 201402173

I refer to your email and can advise that as requested a response to your email of 15 December 2014 will be sent to you separately.

With regards to the other points in your email, I can advise that appendix 2 is included in the document sent to you on 21 January and I apologise if my earlier email did not make this clear.  The first 2 pages labelled appendix 2  and headed “All Departments” (pages 9 and 10 of the attachment) constitute appendix 2 and it is only the remaining pages (11-26) which are incorrectly labelled and constitute appendix 3.  

Regarding the missing appendix, the service has advised that this document was not saved with the rest of the report and as it was labelled incorrectly with the contents not according to the relevant text of the report, it only became apparent recently that this document was in fact related to the Corporate Management Team report of August 2005.

Kind Regards

Neil McKay

Freedom of Information Co-ordinator