Chippy tenant’s FoI quest to reveal bathtub damage

Nothing like a hot, relaxing, bath.

Sometimes Freedom of Information seems to be the only or last avenue left to people who are unhappy with a service provided to them by a public authority.

This phenomenon appears to manifest itself in a recent decision notice from Brighton and Hove City Council in relation to the quality of a tenant’s bath and wash basin.

Clearly the tenant was less than happy when he arrived at his refurbished council home in July 2007 to find that the new bath had an enamel chip missing.

If at that point the builders had fixed it to the satisfaction of the tenant it would have saved a blizzard of paperwork and a complaint file that eventually landed on the Information Commissioner’s desk.

The tenant wanted to know where his bath had been purchased from, who the contractors were who fitted it and when and where the damage had been caused to the tub.

Council staff manage to unearth an inspection report at the property which said:: ‘it was noted that there was a small chip in the enamelling to the internal bowl of the bath. It was agreed that the contractor would carry out a liquid enamel repair to the chip.’

But there was no information held by the Council of how the chip had been caused and when and where it had happened. The Council gave the applicant the details of its contractor and said the company might hold more details.

From a legal point of view, this aspect is interesting, in that the Council appears to have tried to bat off the request by just pointing him in the direction of the contractor.

However, the information on the man’s bath is held by the contractor ‘on behalf’ of the Council and so is therefore the responsibility of the authority to unearth.

The Commissioner said in the decision notice: “When the Council completed its internal review, the Council stated that it did not hold copies of the information requested, however the contractor “may have further information”. This is an inadequate response for the purposes of the FOIA as it was not clear whether the information was held by the contractor on behalf of the Council. In view of this, the Council breached section 1(1)(a) for not stating whether it held this information.”

As it turned out the contractor had very limited information on the provenance of the bathtub and said it was impossible to marry up invoices for baths with the properties that they may have been installed in.

So the mystery of who chipped the enamel off the seasider’s bath will remain unsolved as even the powers of Freedom of Information cannot unmask the culprit.

The full decision notice is [here] .

S.43 exemption hits the buffers

A silverlink train

Another attempt by a public body to keep information secret with the use of the S.43 (Commercial Interests) exemption has failed.

The Department for Transport’s (DfT) efforts to withhold the information relating to how much it paid a rail company when its workforce went on strike was rejected by the Information Commissioner.

It was ruled that S.43 was not engaged and so the Commissioner did not even go on to consider the public interest arguments in the case.

The case centred on an industrial dispute by workers on the Silverlink rail franchise in 2007 which ran between London Euston and Northampton.

Officials from the DfT confirmed to the Commissioner that under a section of its agreement with Silverlink it was able to “reimburse or ameliorate net losses of the Franchise Operator arising from industrial action”.

However, it refused to divulge how much this compensation was and the arguments it put up in defence of the use of S.43 remain somewhat of a mystery.

The DfT said that to disclose it arguments for the support of S.43 would be a breach of the exemption in itself. The decision notice said: “The DfT has provided the Commissioner with submissions to support its use of the exemption, but has stated that it believes that these submissions cannot be put into the public domain.”

So the rationale behind the DfT’s use of the exemption is in a confidential annex to the decision notice that we cannot see.

However, the Commissioner gave the arguments – secret or not – short shrift and said the exemption did not apply. Because the exemption didn’t apply he also found the DfT guilty of a breach of procedure in that it should have explained the reasoning behind its application of S.43 to the applicant.

The DfT has now been ordered to provide the applicant with information relating to did the DfT provide funding to Silverlink as compensation when the industrial action took place and if any changes were made with the incoming franchisee to compensate it for any losses caused by industrial action.

The full decision notice can be seen here. [link]

NOTE: For S.43 to be applicable the prejudice to an organisation has to be likely and substantial. Even then the public interest can weigh in favour of disclosure. It means that it practice it is very difficult to shield information using this exemption. The Ministry of Justice lost a similar case [Working on the chain gang], and the Royal Mail has withdrawn its appeal to the Information Tribunal over its attempt to keep secret how much it spends on management consultants.

Commissioner’s ruling on airport security

Does Bin-Laden worry about whether he put enough money in the meter?

A row over terrorism and airport parking tickets has had to be settled by the Information Commissioner.

The Metropolitan Police force refused to reveal if it held records on the number of cars ticketed or towed away from a road at Heathrow Airport.

The police claimed that to reveal if it held the information could be useful to terrorists. But the Information Commissioner has now ruled against the Met and has told the force it has to say if it holds the records.

It is still open to the Met to try to refuse revealing the information – but now it has to at least admit if it holds the data – and can no longer refuse to confirm or deny whether it holds it.

In the ruling the Met claimed it was free to neither confirm or deny it held the information because of S.31 (Law Enforcement).

The decision notice said: “the public authority stated its stance related to the pattern of enforcement that it believed would be revealed through confirmation or denial.

“It believed that any site where it was revealed that police monitoring was not regular would become a more attractive site to terrorists planning attacks using vehicles.

“The argument of the public authority is that the pattern of police monitoring and traffic enforcement that would be revealed through this and other future, similar requests would provide information that would assist in the planning of terrorist attacks.”

Giving his decision the Information Commissioner said: “The Commissioner does not accept that confirmation or denial in response to this request would reveal information about police monitoring or enforcement that would be prejudicial in the way that the public authority has suggested.

“Neither does the Commissioner accept that differing confirmation or denial responses to a number of similar requests made about other areas close to airports would reveal any differences in the policing of these areas. This means that the Commissioner also does not accept that confirmation or denial would provide information of use to terrorists.”

NOTE: This is an interesting decision in that it has many similarities to the on-going rows about site specific speed camera data. In the case of speed cameras public authorities never, to my knowledge, opted for the ‘neither confirm or deny’ strategy but instead focused on S.31 and S.38 (health and safety).

But the arguments used by the police in this case are very similar in that to give out specific data for one location could lead to assumptions being made about other locations. So that if you work out where resources are being deployed in strength you can work out where the weaknesses in the system are.

However, it would appear that the applicant for this information will be faced with a long haul for the information. I imagine the Met will now exempt the information under S.31 and if the applicant can be bothered it will take its place again in the Commissioner’s queue of unresolved cases.

I have written about ‘neither confirm or deny’ previously. [Are you free to say nothing?]

You can see the decision notice here. [link]