Topic: freedom of information act

[Redpippin]

I always attend my Parish Council allotment committee meetings, that are held on the first Tuesday of the month. Lately these meeting are becoming ridiculous, the last meeting lasted 29 seconds for me, as I was told to leave as “the Council do now exclude the press and public for the remaining items of the Agenda by reason of the confidential nature of the business to be transacted since publicity would be prejudicial to public interest”. At the moment the Council are again threatening their tenants with notice to quit if they do not sign a new tenancy agreement. This agreement, that no tenants were told about until the day after everyone had paid their rent, was sorted behind closed doors, this is done after the public are asked to leave, so tenants can not object. The Councils excuse is to hear the allotment consultants reports, which no one except my Councillors get to read. We manage for over 80 years without a part time allotment consultant, who is paid over £30,000 a year, but thats another story.
My question is, do you think if I wrote requesting the consultants reports, using the freedom of information act, I would be successful?
Thank you 

[hippydave]

do it anyway, what have you got to lose and it will let them know that they are being scrutinized by the people they should be serving.

[Unwashed]

You can always ask, but my experience of parish councils is that if they don't want you to have information then it's a hard old slog to prise it out of them.

You can ask for the information under the Freedom of Information Act, but as the information relates to land then it might actually be covered by the Environmental Information Regulations.  As it is I don't think at this stage you need to worry too much about which bit of legislation gives you access to the information because you don't need to quote the statute for it to be a valid request for information - you just need to write (or e-mail) and ask clearly and specifically for the information you're after.

Your council will then most likely refuse and you then appeal the refusal - it might help if you post the refusal here so that you can get some help on the grounds for appeal.

You might also like to ask for the minutes of the meeting, because although you were excluded you may well still have a right to the minutes under FoI as there are only limited grounds for the council refusing you and it's not obvious from what you've described that any valid grounds apply.

Do always bear in mind that you council may respond very harshly and vindictively and harass you for making waves, and you'll find yourself very exposed if they do - just something to bear in mind.

In principle the council should give you 12 months notice of any new tenancy agreement, and by rights a threat to terminate your tenancy of you don't waive your right to notice and sign up to new terms immediately is very likley a breach of the Consumer Protection from Unfair Trading Regulations, specifically the bit about aggressive practices, and in principle your local Trading Standards should warn your parish council to behave, but in practice you may find that Trading Standards won't get involved because of political pressure not to embarrass the parish council, but you might get some help.

Are their terms of the new agreement that you don't want to sign up to?

[BAK]

Just want to understand ...

This is a Parish Council?

How many allotments are we talking about?

Is the £30K+ that you mention what the council is paying the consultant or is that what he/she earns from all his assignments?

[Redpippin]

Sorry, Its a Town Council with around 700 allotments, an undergraduate was suggested for the job, the Councillors said no. The Council then advertised for a Allotment Officer, at £21,000. This post required numerous qualifications, I never heard any more about this job. Then an Allotment Consultant was employed on a part time bases at approximately £34,000. I wrote to the Council asking had this Allotment Consultant done any other consulting, what was his hourly rate and what qualifications did this man have. I never even received a reply. All I know about this Consultant is that he was employed by the Council as a park-keeper and he retired a few years ago. His only assignment for the Council is as the Town Allotment Consultant.

[T o m]

Your Town Council has a duty to have a publication scheme, which will tell you what they make available to the public.

Also the Council will have a website where they publish the minutes of Full Council meetings, and sometimes Committee meetings. So you might pick up what’s going on from there.

T o m

[Redpippin]

Thanks Unwashed I took your advise, I wrote to the Town Clerk on 5/11/12 asking for a copy of the Allotment Consultants report up to now nothing!

[Unwashed]

Doing nothing is their best strategy and defeats all but the truely determined.

They have 20 working days from the date of your request to confirm or deny that they hold the information requested.  However, you can't yet take it to the Information Commissioner because you have to fully exhaust the local complaints process - and when you do go to the Information Commissioner you'll need all the evidence of having followed that process, so make sure you keep a copy of the initial request safe along with any further correspondence (e-mail is easiest).

If you want to persue this you now need to use the Council's complaints procedure, and in the first instance that means you need to write again to the town clerk making a complaint that the council has not complied with its duty under the Environmental Information Regulations and Freedom of Information Act and that you require the information previously requested without further delay.  The Council can string this process out a good six months - although they have to respond to a FoI request within 20 working days there is no particular limit on the time they can take processing a complaint that they haven't done so, and you can't by-pass the council's complaints process because the Information Commissioner will ignore you and make you start the whole thing over! 

Be very polite, and keep it short and sweet - you're complaint is that the Council hasn't processed your previous request for information in accordance with their duties under FoI and EIR, and that's all you have to say.  You don't need to make the request for information again, and it's very important that you don't use the corespondnce to continue with any kind of complaint about the council's management of their allotments - you can do that separately, but the FoI/EIR correspondence must have a very tight focus on the information request alone or the Information Commissioner might not support any subsequent complaint.

Let us know how you get on.

[Unwashed]

It's early days yet, but if the council chooses to handle this request under the Environmental Information Regulations they will probably try and use the "Internal Communications" exemption.  It's very likely that the exemption will apply if thr allotments officer is a coucil employee, but it's a qualified exemption and ther's a public interest test to pass, and there's also a presumption in favour of publication.  It's not entirely easy to do, but you should be able to put together a good reasoned argument that will convince the Information Commission that the exemption was misapplied by the council. 

It's also possible that the council will just handle the request badly and break all the rules of the EIR/FoI, but even if they do that (and many councils at the parish level have a terribly poor understanding of the legislation) the Information Commission will still give the council the chance to go away and make a well-grounded refusal which you will then have to appeal with the council before you can go back to the Information Commissioner, so you'll need to understand about the legitimate exemptions in the legislation, and studying the documents on the Information Commissioner's site is a good place to start.

[Redpippin]

Thanks again Unwashed, I asked for the Allotment consultants report in a polite letter but never said using the FoI or EIR as I followed what you wrote, “I don't think at this stage you need to worry too much about which bit of legislation gives you access to the information because you don't need to quote the statute for it to be a valid request for information - you just need to write (or e-mail) and ask clearly and specifically for the information you're after”. I will send another letter asking again but this time using the EIR and the FoI acts.
Thanks for all your help I would be lost without it.

[Unwashed]

That's good, you've done everything you needed to.

Councils are under a duty to treat all requests for information under their appropriate legislation, be that Freedom of Information, Environmental Information Regulations, or Data Protection Act.

It wouldn't now harm to mention in your complaint something like "May I respectfully remind the council of their duty to treat requests for information under the Freedom of Information Act and Environmental Information Regulations.  It has now been more than 20 working days since I made my request for the Allotment Consultant's Report and I therefore make a formal complaint to you that I have not received the requested information as required by statute and would be obliged if you would send me the Allotment Consultant's report at your earliest convenience."

That's should get the process moving.  You don't at this stage want to be too specific about which piece of legislation applies because if you name the wrong one that might possible confuse matters, and in any case it's the council's duty to know.  Their next move will either be to ignore you again, but more likely they'll have got on the phone to the Association of Local Council's and got a pro-forma refusal citing one of the exemptions to publication.  Unless they're complete numpties they'll realize at this point that the Internal Communications exemption of the EIR is their only possible exemption, and so the next stage of the proess for you will be putting together an argument either for the report coming within the remit of the Freedom of Information Act (which doesn't have an internal communications exemption) or else arguing that the council have not correctly applied the public interest test and presumption in favour of publication (which they won't have).

[Redpippin]

Hi Unwashed
I took your advice and I wrote again to the Town Clerk and made a formal complaint about not receiving the information that I requested in my original letter, dated 05/11/12.
I handed the latest letter in at the Town Hall on the 13/12/12 and as usual I have not had a reply, my request has been ignored.

[kt.]

Minutes of our town council meetings are posted on-line on their website.  Check theirs to see if they have posted previous minutes.  If you are having no joy then maybe contact your MP?

[Nigel B]

Hi Unwashed
I took your advice and I wrote again to the Town Clerk and made a formal complaint about not receiving the information that I requested in my original letter, dated 05/11/12.
I handed the latest letter in at the Town Hall on the 13/12/12 and as usual I have not had a reply, my request has been ignored.

My council does exactly the same, although they did answer one fioa request.
The complaint I made was intended to start some kind of a dialogue so I could at least understand why they should think it necessary to hold meetings about the allotments 'in camera' with no chance of any minutes, or even a list of attendees, being published. It turns out though, that the meeting held was to impose a 'new' committee and constitution without any consultation with the allotment holders (except those chosen to be the new committee of course.)
This town council is doing all it can to spoil the work of two years and more by some very dedicated and hard-working people who (the few 'originals' that still remain) now get to watch from the sidelines as the community spirit so necessary to these things is being slowly strangled and left for dead. 

[Unwashed]

Redpippin, I think it's worth just suggestion that you review what you're trying to achieve.  Parish councils can be vindictive tyrants and you'll be on their radar now.  If this request goes all the way to the Information Commissioner then your chance of getting the report is only fair.  If you succeed in getting it, what then?  At best the council will simply not want to talk to you, but at worst they'll evict you out of spite.  It makes a mockery of your rights I know, but there you have it.

Anywho, before you go to the Information Commissioner you'll need to be able to show that you've made every conceivable effort to engage reasonably with the council's complaints process - and remember all the while the need to be reasonable - the council will inevitably try and smear you by declaring you a vexatious complainant, so it helps if you've been uber-polite and kept it short and to the point.

I suggest you write again to the town clerk, and if you can get some kind of receipt of delivery so much the better.  Ask again that the clerk follow the council's complaints process and addressed your complaint that you have not received the requested information, and ask again to receive the report without further delay.

If that all draws a blank then the next thing to do is to write to the town mayor instead, asking that the mayor reviews your compaint.

I think it would be reasonable to leave it to the end of the week before you write.

Let us know how you get on.

[Redpippin]

Hi Unwashed
I received a reply today from the  Town Clerk about my request regarding the allotment consultants report, this is what I got back, word for word.
I refer to your letter dated 13th December, 2012.
As the Allotment Consultants report was considered following the Exclusion of Press and Public, I am unable to provide you with a copy.
Please find enclosed herewith the minutes from the meeting held on Tuesday 2nd October, 2012.

[ODD]

If you have an Allotment Society that is a member of the National Allotment Society  you should be able to get legal advise and the local Regional Representative should be able to offer help and advice. If there is not an allotment society on your site it might be worth starting one. It seems to me that councils often react differently when dealing with a national body.

[Redpippin]

We have 2 NSALG Local Authority Representatives, they are both town councillors and will not answer our letters. The secretary of our allotments asked 1 of them a question when passing our allotments and he said “ I don’t want to talk about allotments” and walked away. We had a meeting at the town hall, Saturday 1st December and although both councillors live within half a mile, neither turned up at the meeting to represent us. These 2 councillors don’t mind travelling, as they travelled 360 mile on a round trip to the NSALG, AGM. So you can see what we are up against, it would seem our councillors dont want anything to do with allotments, other than go on paid trips.

[daveylamp993]

The N.S.A.L.G Are a total waste of time,my site were members for 25 years or more,when we had issues with the local council they said that although we had a good case,they could not deal with it because if it went to court,they could not afford any legal fees,we fought the council on our own and WON,i hasten to add that we are No Longer members of the shambles that is the N.S.A.L.G We have joined theallotmentsandgardenscounciluk.org.uk They are most helpful on any allotment related issues,give them a call,im sure they would be willing to help you.

[Unwashed]

Hi Unwashed
I received a reply today from the  Town Clerk about my request regarding the allotment consultants report, this is what I got back, word for word.
I refer to your letter dated 13th December, 2012.
As the Allotment Consultants report was considered following the Exclusion of Press and Public, I am unable to provide you with a copy.
Please find enclosed herewith the minutes from the meeting held on Tuesday 2nd October, 2012.

You now need to write again to the town clerk setting out your right to the information and the error in the council's refusal.

I think you now need to cite your right to the information and I think you're better off relying on the Freedom of information Act, though you can change your mind later.  The clerk will likely come back with Section 36. Prejudice to effective conduct of public affairs, and you'll then need to put together some kind of argument that the public interest is best served by publication.  That will take a bit of thinking about, but you're not there yet.

I suggest a letter somethig along these lines:

"Dear Town Clerk

"I asked you for a copy of the Allotments Report and you have declined to supply me with it.  I have asked you to review your decision, and you have confirmed your refusal on the grounds that the report was presented to the Council at a meeting from which the press and bublic were excluded.  I believe that I have a statutory right to the information I have asked for and I ask that you again review your decision and provide me with the report.

"I asked you for a copy of the Allotments Report on *****.  This was a Request for Information within the meaning of Section 1 of the Freedom of Information Act 2000.  I have a right to the requested information subject to any exemption, and you have a duty under Section 17 of the Act to specify which exemption you are relying on to refuse me the information.

"That the report was presented to the council while the press and public were excluded is not in itself an exemption from your FoI duty to publish, and you need to frame any refusal in terms of a specific exemption.  I would remind you that all of this needed to be done within 20 working days of my intiial request.

"I would suggest that the public interest is best served by the publication of the Allotment Report and that any public interest in keeping the report confidential prior to any decision of the Council has now passed.

"I would be grateful if you would either let me have a copy of the report, or that you state the exemption that your are relying on and your justification, so that I may consider on what grounds to appeal your decision."