13 May 2013

ICO: bite - Mrs Angry: bark - Mr Mustard: growl

Mr Mustard expects that you have read Mrs Angry's blog on the subject of her recent battle, alongside the ICO, to get some minutes, that were intended to be published, out of the grasping hands of Barnet Council. As a regular user of Freedom of Information, although hardly at all recently, Mr Mustard felt duty bound to add one of his experiences to the publicly available information.

In relation to Barnet Council now being on the naughty step, for, in essence, not following the law, it is interesting to note what the deputy Leader, Dan Thomas, told the local paper, The Barnet Press, which you can read here:

Deputy council leader Dan Thomas said: “It will be interesting to see how we can improve performance as in January to March this year our rate for responding in time was 99.5 per cent, one of the best in the UK." (Mr Mustard is not convinced)

Of course, having frustrated Mr Mustard's best efforts to get interesting information into the public domain by embarking on a series of responses that his questions were vexatious (which was apparently a spontaneous matter that no officer will admit to positively deciding), when the questions were anodyne and simple to respond to, the number of requests to respond to had been artificially depressed thus making better performance easier.

However, although the ICO said publicly that delay was the reason there are almost certainly other factors taken into account such as there being 10 live complaints with the Information Commissioner (possibly the most of any council) and a case with the First Tier Tribunal about which more later (the ICO reminded Barnet Council last week that they were behind timetable on providing the evidence packs to all parties - Mr Mustard is on time with his legal requirements) and so Dan's "we are almost perfect" remark focused only on a narrow element of FOI law. Maybe Daniel asked officers the wrong question or officers failed to mention their various other shortcomings which were not specifically raised - we can't expect Daniel to have gone into Governance and got his hands dirty taking a good look at the actual requests, can we?

Mr Mustard received an email from the FOI section this week but let us go through the history of the request in order.

3 December 2011 (yes, 18 months ago)

Question: Please provide all minutes of, reports of and briefing papers of the Council Directors Group which have been created or presented since 1 January 2010 (contrary to possible belief, when it comes to FOI the Barnet bloggers work alone - we all want the scoop!)

7 December 2011

Question acknowledged. Response due promptly (try not to laugh Mr Mustard) but in any event within 20 working days starting the day after receipt which would be about 10 January 2012 (all those bank holidays got in the way).

6 January 2012 - holding response

I can confirm that the Council holds the information you are requesting. I have been advised that the Council Directors Group meetings are held fortnightly and that the information you are requesting relates to about 40 meetings.

There is a possibility that information contained within the papers you have requested would satisfy the criteria for exemption under the FOIA and the documents have to be looked at by a senior officer in order to determine if this is the case. Due to the volume and nature of the materials we are unable to complete this exercise within the 20 working day deadline and estimate that this will take a significant amount of time. Our approach to this request will be to release the information in stages as we work through the documents.

I apologise for any inconvenience this delay may cause you.

19 January 2012 - Mr Mustard is very helpful.

Thank you for you response.

I do not wish to waste the council's time if the information turns out not to be of great interest. Might I suggest that you redact the minutes of the first two meetings (one at once if necessary) and send them to me and then I will hopefully be able to tell if I want the subsequent minutes or not.

Do you have an estimate of what a "significant amount of time" is? It might be helpful if you time yourself, or a colleague, redacting the first set of minutes.

7 February 2012 -from the council.

Thank you for your email below. Please accept my apologies for not responding sooner.

I note that you have refined your request to the first two set of minutes and I have passed this message along with your comment to time the process of redacting the set of minutes.

I will forward the minutes to you as soon as they are made available to me.

So the council are already a month behind the 20 day deadline and Mr Mustard tends not to routinely chase the council (he does have a life!).

21 June 2012 - the council wake up

Our records indicate that the information requests below which were allocated to the Corporate Governance Directorate are still outstanding,

#1031A - Corporate Governance (Deleted Posts)
#1169 - Council Directors Group
#1223 - Procurement consultants
#1170 PWC Report Names (Internal Review)

We are aware that there may also be a few requests outstanding with other services within the council.

While we do aim to respond to requests within 20 working days we may on this occasion have missed the deadline. The council is committed to improving its ability to comply with its statutory duties under the Freedom of Information Act 2000 (FOIA) and, to this end, has implemented a new Freedom of Information case management system along with a continuing programme of raising awareness of officers’ duties under the FOIA.

In order to ensure that we respond to all outstanding requests and close off cases on the old system, we are writing to you to ask that you confirm that you are still interested in receiving a response or in the alternative to confirm your willingness to withdraw the request.

I would be grateful if you could respond to this email before June 29 2012; if we do not receive your response; we will assume that you have withdrawn your request and we will close the case on our system. (A council simply cannot withdraw your request for you!)

I look forward to your response.

2 Hours later:

I still require a response please, Mr Mustard.

later the same day:

Thank you for your prompt response. We will aim to fully respond to all the requests within the next 20 working days. (to requests that were already well overdue!).

Please accept my apologies on behalf of the council for the delays associated with your requests.

28 August 2012: Mr Mustard notices a response has still not been received and sends an email directly to the FOI officer handling his case.

I think I have been more than reasonable in waiting nearly 6 months for this simple task to be carried out.

I don't think my behaviour could be described as bullying or harassment if I were now to send this to the ICO, do you?

In response from the council governance officer:

I am out of the office until September 6, 2012; with no access to emails. Doh!

For FOI queries/advice please email foi@barnet.gov.uk (Mr Mustard thinks that emails should not be bounced back to the customer to take action - that is partly why management exist, to ensure all correspondence is dealt with in a timely manner)

28 August 2012: Mr Mustard sends the message again to the FOI inbox.

29 August 2012: A different officer (there are only 3 of them) responds: "Thank you for your email below of which I acknowledge safe receipt, and the contents of which have been noted." which means nothing at all.

27 September 2012: Still no reply so Mr Mustard sends a complaint to the Information Commissioner (ICO) as nearly a year has passed without his simple question getting any sort of a response.

14 November 2012: The ICO writes to Mr Mustard:

When considering complaints about delayed or failed responses to information requests our priority is to ensure requesters receive a response as quickly as possible (where one has not been provided) and to monitor any persistent trends which might indicate that a public authority was routinely failing to respond within the statutory 20 working days permitted under section 10 of the Freedom of Information Act.

We monitor complaints where a serious contravention of section 10 is recorded and where persistent contraventions occur we will consider placing a public authority on our monitoring programme.

The delay in this case has been brought to the attention of our Enforcement team for their further consideration.

I have written to the public authority to provide them with a copy of your original request, reminding them of their responsibilities and asking them to respond to you within 10 working days of receiving our letter.

and to Barnet Council:

Any public authority in receipt of such a request is under a duty to respond within 20 working days of receipt. As it is the case that you have not responded but acknowledged receipt of the request, we would ask that you now respond within 10 working days of receipt of this letter.

8 May 2013: The council woke up. Is it any wonder that the ICO has put Barnet Council on the naughty step when even after a prompt from the ICO they take 6 months to provide simple copy documents.

Mr Mustard was provided with 2 sets of minutes from January 2010. Here is the first one. There is a typo in the heading stated as 2009.

What is quite revealing about these minutes is that they contain a reference to the Judicial Review of the planned removal of wardens from sheltered housing (the very basis of that type of housing is that there is a warden!) which was all over the paper at the time which is pre Mr Mustard. The attitude of the council is not to change their policy but simply to do more consultation and then carry on as planned. We can expect the same with the New Support & Customer Services Organisation 10 year contract with Crapita.

What is also interesting is that the supposed "significant amount of time" to look at the documents appears not to have been significant at all, as there are no redactions, and the council did not tell Mr Mustard the time taken to check the first 2 sets of minutes which they doubtless would have if it was appreciable.
9 May 2013: away we go again.

Mr Mustard therefore asked for the rest of the documents and the 20 days clock in which to reply promptly has been set running again by Barnet Council. You never know, by 2015 Mr Mustard might even get them.

That naughty step is going to prove very hard to get off.

Yours frugally

Mr Mustard

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