26 July 2012

Black hole at the seaside

glumcouncillors.tumblr.com/fun in e sussex

When Mr Mustard heard that Andrew Travers, the Deputy Chief Executive, Chief Finance Officer and statutory S151 officer of Barnet Council also "affectionately" known as "Black Hole" by Mrs Angry of Broken Barnet fame and to bloggers generally as a "Town Hall Tax Dodger" using the wonderful phrase coined by the Rt. Hon Eric Pickles MP, had gone part-time in Barnet and was also to be found in East Sussex, he did his usual and sent in an FOI request.
Never in his wildest dreams did Mr Mustard think that any other council, especially one outside of London, would pay the same £1,000 a day as Barnet Council rather over-generously have done for the last 2+ years and so Mr Mustard thought that black holes were for ever. Now before we get to the answer you need to get a long cool glass of something because this is going to be a long read. The facts were easy to establish but the fight to put them on the blog took a little longer.
Barnet Council's approach to information is to hide it. East Sussex give it to you and then tell you that you can't tell anyone, not even your best friend.
So what did Mr Mustard ask? (numbers have been added afterwards for ease of reference)

10 May 2012

Dear Sir or Madam

my ref #1286 Andrew Travers - interim Director of Corporate Resources

I note that you now employ an Andrew Travers in the above position.
This series of questions is only required to be answered if the Andrew Travers you are employing is the one who has been working at Barnet Council. His home address is in London N10 and his date of birth is 17/02/19**.
Please tell me where and when the vacancy was advertised and which employment agency was employed, if any, or how the availability of Mr Travers came to the attention of the council.
1. Please tell me the date on which Mr Travers started.
2. Please tell me the expected duration of the employment.
3. Please tell me the standard number of days worked each work/month.
4. Please tell me the annual pay rate in £ or the £daily amount paid to any agency and which one.
5. Please tell me if invoices are to be rendered in respect of the work of Mr Travers by Halliford Associates Ltd.
6. Please tell me if Mr Travers is paid on the payroll under PAYE.
7. If Mr Travers is not paid under deduction of PAYE please provide a copy of the contract under which his services are used.
8. Please confirm if Mr Travers fills any statutory posts and if so which.

11 May 2012

FOI Request ref 1234 / Information about interim Director of Corporate Resources - Andrew Travers (note the council allocate their own reference number and ignore mine - this is unhelpful behaviour)

Thank you for your request for information about the above. Your request was received on 11/5/2012 and I am dealing with it under the terms of the Freedom of Information Act 2000.

We always aim to respond as quickly as possible, and certainly no later than 11/6/2012, which is the 20 working day deadline. The deadline is counted from the first working day we receive it, not the date a letter is written / posted or an email sent.
In some circumstances a fee may be payable and if that is the case, I will let you know. A fees notice will be issued to you, and you will be required to pay before we proceed in dealing with your request.
Please quote the above reference number in any communication regarding this request.
Yours sincerely

Jeremy Coleman
Freedom of Information Officer
Governance & Community Services

13 June 2012 (East Sussex said no later than 11 June, maybe the question became politically sensitive along the way)

Mr Mustard has not reprinted the answers in the exact format provided for reasons which will become clear later on.

1. Wednesday, 28 March 2012
2. 3 months to start with (ooh, nearly over already)
3. April 10 days, May 11 days.
4. Comensura Ltd are paid £1,140.45 a day (knock Mr Mustard down with a feather,more than a £grand a day & what is the 45p all about?) (by one of life's curious coincidences Comensura will replace Hays HR on 1 October 2012 as the supplier to Barnet Council of temps and interims and one reason was that they were much better able than the competition to accommodate interim appointments "In addition, it is intended to procure Interim Managers and Consultants via this route." is what the report to Cabinet Resources Committee of 20 June 12 said)
5. Payment to Comesura Ltd
6. Not on PAYE with the council. (what do you call a double town hall tax dodger then Eric? we have double tax treaties with other countries so that people don't overpay but this is the opposite; the cost of travel to East Sussex and possibly accommodation will be claimable by Halliford before tax is calculated - this will make a big difference to the sum paid to the exchequer)
7. No contract between the council and Travers/Halliford.
8. None.

So Mr Mustard had his answers but that was only the start of the story. Look at the main footer that the answer came with (there was a second footer about viruses and other stuff)

Copyright and Re-Use of information
1. This information is supplied for your personal use only. Providing you with documents under the Freedom of Information Act does not give you an automatic right to re-use those documents in a way that would infringe copyright – for example by making multiple copies, or by publishing / issuing copies to the public.
2. Copyright in the information is owned by East Sussex County Council and/or its contractor(s) unless otherwise stated. Brief extracts of the material can be reproduced under the “fair dealing” provisions of the Copyright Design and Patents Act 1988 (S.29 and S.30) for the purposes of research for non-commercial purposes, private study, criticism, review and news reporting.
3. We do not give permission for this information to be used for the purposes of direct marketing.
4. If you wish to use this information for commercial purposes then, in accordance with the Regulations on the Re-use of Public Sector Information 2005, you must first ask our permission. Such re-use may or may not involve the granting of a licence and the application of a Fee.

Now Mr Mustard doesn't stand for being told what to do except when he should be i.e. he is a law abiding character. So he emailed back straightaway and there were some other points to raise so that East Sussex could provide a better service.

13 June 2012 (14:00)
Dear Mr Coleman
I refer to your below email of today. I have deleted the Request as you have repeated it all in the response which seemed to me to be pointless duplication.
Firstly, the way in which you have set out the answer means that the entire text does not print out properly from Outlook (the left margin covers some of the text) even if I make the margins as small as I possibly can. Please review the layout of your method of answering to make printing your response easier for the public in general.
Secondly, you did not quote my reference number #1286 in your reply which would have been polite and helpful.
Thirdly, I have some questions about your copyright warning, (using your numbered paragraphs):
1. On what legal basis do your restrict the answer to "your personal use only".
It is unclear if you regard the email reply as a "document" or not.
If you do, then rather than making a general statement I need to know if you would regard the re-issue of the document to the public as infringing your claimed copyright or not? (although I don't think you have any copyright). (I also note that you make replies through the whatdotheyknow website which automatically makes them available to the public).
If you do not, why do you attach a statement to your response that you do not wish to stand by?
2. The Copyright ... Act 1988 to which you refer starts as follows:-

(1) Copyright is a property right which subsists in accordance with this Part in the following descriptions of work—
(a) original literary, dramatic, musical or artistic works,
(b) sound recordings, films [F1 or broadcasts], and
(c) the typographical arrangement of published editions.
Please tell me which description of work your email falls into. Are you seriously going to claim that your email is a literary work?
3 &4. Irrelevant to the situation.
I look forward to hearing from you as soon as possible.
Yours sincerely
Mr Mustard

13 June (14:23)

Dear Mr Mustard,

Thank you for your email,

I am sorry that you are not happy with the format of our response. We have used the current system for some time and have not yet received any expression of dissatisfaction with the way our responses are set out. I cannot readily give you a figure regarding how many responses we have sent out in total but I can say that since April 2011 there have been 1322. (all this means is that Mr Mustard can be bothered to complain and other people can't)

I note your comment about your reference. (which I will still not use in the future)

You have mentioned having difficulty printing from Outlook. You may have more success if you cut and paste into Word and try printing from that program. (Why not simply send out emails that can be printed without cutting and pasting?)

Regarding your questions on copyright. The general position is that disclosure under the Freedom of Information Act is made to the public at large, rather than just to the individual who has requested the information. However, this does not displace the law relating to copyright. For example, if a request was made for a County Council’s personnel training policy, the County Council may have the copyright to this document and would therefore want to restrict it's re-use. The County Council has the power to do this under the Re-use of Public Sector Information Regulations 2005. This means that applicants do not have a right to re-use information in a way that would infringe copyright, and therefore must seek permission to re-use copyrighted information.

A key consideration for the County Council with regard to requests to publish information obtained under the Freedom of Information Act is the meaning applied to 're-use' in part one of the copyright clause. Looking at the example above, seeking a copy of East Sussex County Council’s training policy, re-producing it and circulating it as part of training that the requester is operating would be a re-use, and the requester would have to seek permission for this.

To be able to make a decision on whether or not to permit publication of material provided by the County Council we would need to know what use you intend to make of it.

Yours sincerely

Jeremy Coleman
Freedom of Information Officer

13 June (14:42)
Dear Mr Coleman
Now that was speedy.
Just because no-one has bothered to complain (I can be bothered!) does not mean that others have not wondered why you put the questions in two places. What is the advantage of your method might be a good starting point for thinking about whether to do this in the future or not.
If everyone at East Sussex CC had to copy all their emails into Word in order to print them out properly the council would grind to a halt. Have you printed out the first email you sent me in your own email programme to see if it is all there? If it isn't then perhaps you need to look further at layout.
You have omitted to tell me why you have copyright in the actual email that you sent me. If you don't have any then the question of re-use is surely academic unless it is a "document"?
You also have not answered my question about your email and is it a "document" or not. It doesn't look to me like it is for the purposes of the Re-use regs (I have come across those once before and am grateful for the reminder of their existence) but I am just a lay person.
Yours sincerely
Mr Mustard 

13 June (15:08)

Dear Mr Mustard,
I again note your comments.
I believe that I have answered your questions. The “information” that we have provided is subject to copyright for the reasons I have outlined. If you wish to seek permission to publish, please advise us of what use you intend to make of the information. Once you have done this, I will write to you once our legal department have looked at your request and made a decision. I will aim to do this within 10 working days of your clarification.
Yours sincerely
Jeremy Coleman
Freedom of Information Officer

13 June (15:23)

Dear Mr Coleman
Where have I said I wish to publish?
You have not answered the simple questions I have asked about which sort of work your email is for the purposes of the Copyright ...Act 1988 nor if you think the email is a "document" for the purposes of the Re-use...regs

Yours sincerely

Mr Mustard

13 June (15:46)

Dear Mr Mustard,
I am sorry if I appear to have made an assumption about your intentions. It would seem that I mistakenly thought that your interest in copyright was for the reason I have indicated. I could think of no other reason and was merely trying to be helpful by explaining our position with the minimum of delay. If you would like further in depth clarification of the simple clause attached to our emails I would be happy to ask our legal depart to draft something for you.
Yours sincerely

Jeremy Coleman
Freedom of Information Officer

13 June (15:50)
Dear Mr Coleman
You have responded quickly but not to what I want to know the answer to.
I do not want anything other than a straightforward answer to the simple questions that I have posed.
Yours sincerely
Mr Mustard

13 June (16:02)

Dear Mr Mustard,
I am not a lawyer and not qualified or authorised to comment on your question in any greater depth than I already have. I can only reiterate that if you would like me to ask our Legal Department to provide a response I will be happy to do so.
Yours sincerely
Jeremy Coleman
Freedom of Information Officer

13 June (16:08)

Dear Mr Coleman
Thank you. Yes, please ask your legal department to answer the specific questions I have raised.
Yours sincerely
Mr Mustard

13 June (16:25)

Dear Mr Mustard,
I have passed your query to our Legal Department and I aim to respond to you within 10 working days.
Yours sincerely
Jeremy Coleman
Freedom of Information Officer

25 June (09:32)

Dear Mr Mustard
Further to my email of 13 June, as requested I have asked the legal department to provide comments on the questions that you have raised. I have set out their response below.
"Firstly, I think it would be helpful to point out that the clause relating to copyright is added at the end of all Freedom of Information requests. This does not necessarily mean that all information disclosed under the Freedom of Information Act (FOIA) will be subject to copyright; only that the County Council reserves its rights in relation to those items which would be subject to copyright. As suggested in previous emails to Mr Mustard, the County Council holds information which, although disclosable under the FOIA, will remain subject to copyright (e.g. Personnel Training Policy).
Information made available under FOIA does not give an automatic right for it to be re-used and to infringe copyright. This may include making multiple copies of the information provided, re-distributing or publishing it. Research (for non-commercial purposes), private study, criticism, review and news reporting is not a breach of copyright in the limited circumstances set out in sections 28 to 30 of the Copyright, Designs and Patents Act 1988 (‘CDPA 1988’). In all other circumstances a licence will be required.
In terms of the information that was disclosed to Mr Mustard about the Interim Director of Corporate Resources, provided his intended use of the documentation falls within ss.28 – 30 of the CDPA 1988 (as above), he will not be in breach of copyright. Any other use will require him to request a licence from the County Council.
Under the Re-use of Public Sector Information Regulations, the definition of 'document' is "any content, including any part of such content whether in writing or stored in electronic form or as a sound, visual or audio-visual recording, other than a computer program".
I trust this response is of assistance
Jeremy Coleman
Freedom of Information Officer

26 June (15:48)

Dear Mr Coleman
Thank you for your email of yesterday.
I am still not clear.
Is the council claiming that it has copyright in its email of 13 June 2012 (09.29) or not? A simple yes or no would be really helpful.
Yours sincerely
Mr Mustard

26 June (15:58)

Dear Mr Mustard,
The answer is not a simple yes or no but dependent upon the intended use.
My advising lawyer has described permitted use as:
Research (for non-commercial purposes), private study, criticism, review and news reporting”
She then goes on to say:
“provided his intended use of the documentation falls within ss.28 – 30 of the CDPA 1988 (as above), he will not be in breach of copyright”
Yours sincerely

Jeremy Coleman
Freedom of Information Officer

26 June (16:11)

Dear Mr Coleman
Thank you once again for responding so quickly.
SS 28-30 (Acts permitted in relation to copyright works), can only apply to something over which the council has copyright in the first place.
Is the council really claiming that it has copyright over its email of 13 June 2012 (09.29). Yes or No? (come on, you can do it)
Yours sincerely
Mr Mustard

26 June (16:27)

Dear Mr Mustard,

I have given you my response based on the advice I have received. My advising lawyer anticipated that you may want further clarification, as did I.

I will therefore pass your request to her. I aim to respond within 10 working days
Yours sincerely
Jeremy Coleman
Freedom of Information Officer

20 July (09:14)

Dear Mr Coleman
I note that 10 days have zoomed by without any missive from you troubling my inbox.

Yours sincerely

Mr Mustard

23 July (11:25)

Dear Mr Mustard
I must apologise for the lack of response. Mr Coleman is on leave, and it is an oversight on my part that has meant I have failed to respond to you. I can confirm that whilst we do not consider the document copyright protected, it does fall under the RPSI Regulations, so if you are planning to publish the information we have provided, there would be a charge for you to reuse it.
Once again, I am sorry for the delay, but hope the information is of use.
Kind regards
Daniel Ellis
Freedom of Information Officer

25 July (17:32)

Dear Mr Ellis
Why then did the council claim copyright in its email of 13 June 2012?
2. Copyright in the information is owned by East Sussex County Council and/or its contractor(s) unless otherwise stated.

Yours sincerely

Mr Mustard

26 July (08:55)

Dear Mr Ellis
In the council's email of 13 June (09.30) it was stated in the footer that RPSI Regulations only applied to proposed commercial use.
In your below email you now say if I intend to publish the information and make no mention of commercial motive. You seem to have tightened up the RPSI Regulations on me. Why are you claiming more rights than you have?
Taking a look now at the guidance as to what constitutes a document within the Regulations we have the following from OPSI:
The Regulations define “document” by relating it to “content” which is information recorded in any form. In the UK, public sector information covers a diverse range of information. It includes:
Primary and secondary legislation.
Official records of the Proceedings of the UK and Scottish Parliaments, the Northern Ireland Assembly and the National Assembly for Wales.
Departmental circulars.
Codes of practice.
Mapping data produced by organisations such as the Ordnance Survey and the UK Hydrographic Office.
Meteorological data produced by the Met Office.
Consultation and policy documents.
Statistics produced by the Office for National Statistics.
Annual reports published by government departments, agencies and local authorities.
Company information made available through Companies House.
Statutory registers such as those for birth, death and marriage and land titles.
Patent information collected and produced by the Patent Office.
Health and safety guidance and reports published by the Health and Safety Executive.
Forms issued by local and central government such as tax forms.
Press notices.
Public Records.
Technical reports.
Local planning information.
Regional economic strategies
and there is no mention of your FOI email answer being a type of document that qualifies.
The council has been extremely difficult during this exchange of correspondence and has sought to put chilling obstacles in the way of any re-use of the information when it has no legal right to do so.
I look forward to receiving confirmation that the FOI email answer is not covered by RPSI, the apology of the council for its obstructive behaviour and confirmation that in future the council will only use standard email footers that accurately represent the situation as to the re-use of the particular material being released. To do anything else is to try and browbeat the public into silence by claiming rights that the council does not have.
Yours sincerely

Mr Mustard

Now what you can gather from this is that East Sussex have got money to burn if they can afford to pay an agency more for black hole than he gets in London. Mr Mustard used to be paid London weighting when he was a tax officer 30 years ago but he hasn't heard of East Sussex weighting, quite the reverse in fact.

You can also gather that East Sussex claim copyright on everything they issue even when it is blindingly obvious that there isn't any. This is a dishonest and misleading practice and hopefully they will now change their email footers and only claim copyright when  they have the genuine right to do so.

They throw the RPSI regulations at everything and yet they respond to requests through the whatdotheyknow website which means that they are automatically put on the Internet for the whole world to read and so they undermine their own position.

Mr Mustard is not easily put off by having to engage in long correspondence and is not diverted from the real question by side-issues.

Yours frugally

Mr Mustard

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