Freedom of Information review request to Leeds City Council

Update: Appeal upheld, see https://www.whatdotheyknow.com/request/children_and_social_work_bill_pl?nocache=incoming-900882#incoming-900882.

Leeds City Council’s original approach to their commercial interests:

Our reliance on the exemption was based on the prospect that other authorities might be able to improve their own submission to the DfE for funding, or to pre-empt our proposal in some way. This could then mean that the Council’s “financial” interests would be prejudiced and therefore disclosure would be detrimental to the Authority.

They now say or acknowledge,

our arrangements for discharging our statutory duties towards children are generally not “commercial” in nature and so the exemption would not be engaged

However, they now deny that they have any “detailed plans”.

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This is the text of my Freedom of Information review request to Leeds City Council.

Leeds City Council has refused to provide its plans for making use of possible exemptions from children’s legislation. It says that this information is “commercially sensitive” and disclosure “would give competitors an advantage”.

There is a printable pdf version of my FOI review request here: http://www.celticknot.org.uk/view/FOIintreviewLeeds301016.pdf.

30th October 2016

Dear Moin Patel –

I am writing further to the communication dated 28th of October 2016, responding to my Freedom of Information request. Your decision is to refuse to provide the information requested, on the basis that it is exempt under section 43(2) of the Freedom of Information Act 2000.

I am writing to request a review of this decision, which I note your communication describes as an appeal. My reasons are set out below, and I would be grateful if your response and your review would address itself to them.

1. The right information?

The thrust of your decision is that the information is commercially sensitive, and specifically “it would give competitors an advantage in knowing various current charges and costs”.

I should like to point out that my request did not ask for any information regarding current charges and costs. I referred to an online exchange involving the Chief Social Worker, in which she was asked “what would we do differently” if clauses 29 to 33 of the Children and Social Work Bill permitted; she responded that you “have detailed plans of how [you] would work differently”. My Freedom of Information request carefully mirrored that language, requesting details of how you would work differently; so far as I can tell, this is not a request for any costing information.

If the information requested exists only in combination with costing information, I invite you to redact the costing information, and provide the requested information. You can comply with my request fully without providing costing information.

2. The Bill is still a Bill

I was (and others were – as you rightly observed, your response is in the public domain) startled that your response appears to rely upon a bid that you have already submitted. I say this because of your use of the phrase, “Bid that has not yet been approved”.

My request concerned detailed plans for what you would do, subject to future changes in the law, which may or may not materialise. In making this request, I accept that it may be legitimate to plan and prepare in anticipation of changes in the law. But I was startled that you might already have submitted a costed bid to fund such proposals, since by their nature they must be contingent, and not yet lawful.

This is another reason why I wonder whether you have correctly interpreted my request. Please can you confirm that you have indeed already submitted a costed bid for funding for contingent and currently unlawful proposals?

3. The application of the prejudice test

Your decision correctly identifies that section 43(2) involves the application of the prejudice test. There is guidance issued by the Information Commissioner’s Office to Organisations on applying this test here: https://ico.org.uk/media/for-organisations/documents/1214/the_prejudice_test.pdf. I invite you to refer to the Commissioners guidance in formulating your response.

The prejudice test is a staged test. The guidance explains the stages in the following terms:

The test of prejudice involves several steps: Identify the applicable interests within the relevant exemption Identify the nature of the prejudice. This means that the public authority must: Show that the prejudice claimed is real, actual or of substance; and Show that there is a causal link between the disclosure and the prejudice claimed. Decide on the likelihood of the prejudice occurring. This means deciding whether the prejudice would or would be likely to occur. ‘Would’ and ‘would be likely’ imply different levels of likelihood. Where a public authority has not specified the level of likelihood, and in the absence of clear evidence to the contrary, the Commissioner will consider that ‘would be likely’ applies.

With respect, your decision asserts that you “would” rather than “would be likely to” suffer prejudice. You are supposed to give reasons for your decision on the application of the prejudice test (Hogan v Information Commissioner [2006] UKIT EA_2005_0030 (17 October 2006) at paragraphs 22 and 24). Where you assert that you “would” suffer prejudice, then this needs “clear evidence” (see above), or as the Hogan decision says, there is “a much stronger evidential burden on the public authority to discharge”.

So far as I am able to detect, your decision treats the assertion of a commercial interest as sufficient in itself to meet the prejudice test. I am unable to detect why there is real prejudice; why you believe that meeting my request would cause that prejudice to arise; or what is the clear evidence that means that it is more likely to arise than not. I remind you again that your decision is based upon the presence within the information requested of costing information that was not requested.

Please properly address yourself to the prejudice test, in order to comply with section 17 of the Act.

4. The application of the public interest test

Your decision correctly identifies that the exemption you rely upon is a qualified rather than an absolute exemption. Hence, it correctly notes that even where the exemption is possibly engaged, it is necessary to apply the public interest test (or as your decision puts it “hold a public interest test”) before withholding the information.

Despite referring to a public interest test, I respectfully point out that you have not actually conducted one – or at least, if you have, there is no indication that you have done so within your decision. Rather, you treat the existence of the possible exemption as determinative that the information should be withheld. The Freedom of Information Act simply does not work this way.

The Information Commissioner’s Office has detailed guidance on the application of the public interest test, which you can access here: https://ico.org.uk/media/for-organisations/documents/1183/the_public_interest_test.pdf. I invite you to refer to the Commissioners guidance in formulating your response.

In simple terms, the application of the public interest test requires a balance sheet approach, weighing up on the one hand the public interest against disclosure; and on the other hand the public interest in favour of the disclosure. Moreover, the former is narrowly defined and must relate to the specific exemption relied upon, while the latter is widely defined, as explained in the Hogan case already referred to:

“While the public interest considerations against disclosure are narrowly conceived, the public interest considerations in favour of disclosure are broad-ranging and operate at different levels of abstraction from the subject matter of the exemption.”

The same case emphasises the need for the public interest test not just to apply broad brush principles, but to consider the interest in the specific information that is the subject of the request.

My request specifically references clauses 29 to 33 of the Children and Social Work Bill. Your response asserts that “Leeds Children’s Services view clauses 29-33 of the Children and Social Work Bill positively“. I draw to your attention (in case you were not already aware of this) that in the period between my Freedom of Information request and your response, more than 100,000 members of the public signed a petition opposed to the clauses that you view positively. You can view that petition online here: https://you.38degrees.org.uk/petitions/protect-the-rights-of-vulnerable-children-and-care-leavers.

I here reproduced below the exact words of the petition signed by 100,000 members of the public, because they go to the heart of the arguments about why there is a public interest in disclosure of the requested information. It reads:

“Parts of the Children and Social Work Bill allow councils in England to be excused from their legal duties to provide for and protect vulnerable children and young people for up to six years. These protections have built up over 80 years and include many key laws passed by Parliament. They give vital rights to children living in their own families, including disabled children; children living in foster care, children’s homes, residential schools and custody; and young people leaving care The Government says this will encourage innovation, but we fear the loss of essential services and support for children and care leavers by cash-strapped councils There has been no public consultation and no evidence produced by the Government to support its plan to offer up for abolition every legal duty made for vulnerable children and care leavers since 1933.”

Therefore, the clauses that you view positively are concerning the wider public because of the risks to fundamental rights and essential services; and because of the absence of public consultation and an evidence base for them.

I respectfully submit that a proper application of the public interest test requires you to weigh up on one side of the balance sheet your commercial interest in your bid to the Innovation Fund; but on the other side of the balance sheet the interest in transparency in relation to fundamental rights and essential services, and the evidence base for the clauses you view positively.

As the Information Commissioner’s guidance makes clear, certain considerations will always need to be considered as part of the balancing exercise it in favour of disclosure:

“29. There is a general public interest in promoting transparency, accountability, public understanding and involvement in the democratic process. FOIA is a means of helping to meet that public interest, so it must always be given some weight in the public interest test. Public interest in the issue 30. As well as the general public interest in transparency, which is always an argument for disclosure, there may also be a legitimate public interest in the subject the information relates to. If a particular policy decision has a widespread or significant impact on the public… there is a public interest in furthering debate on the issue. So, this can represent an additional public interest argument for disclosure.

5. Delay

Finally, in a supplementary request dated 18th October, I said,

“an authority which provides its response close to, or on, the final day of the 20 working day limit ought to be able to both account for, and justify, the length of time taken to comply with the request.”

You will be very aware that this is an issue of current significance. If you intend to delay until close to, or on the final day, I additionally require you to account for and justify the length of time taken.

You chose to reply one working day before the limit. I remind you that my request to you to account for and justify the length of time taken is outstanding.

Yours sincerely

Allan Norman