Responding to a Freedom of Information Act request about the Walthamstow Mall, LBWF is caught out misusing one of the legislation’s exemption clauses, and has to eat crow
The LBWF e-mail pasted below is largely self-explanatory.
However, the back story is less certain.
Are LBWF officers really ignorant of the Freedom of Information Act’s Section 41?
Or was this an attempt to pull the wool – to brandish apparent expertise, and bank on it not being cross-checked?
Whatever the case, those involved emerge with little credit.
In the recent past, because of Information Commissioner’s Office concern, Mark Hynes, who is LBWF Director of Governance and Law, as well as Data Protection Officer, has stated that all Freedom of Information responses are to be routed through his office and carefully checked before dispatch, in order to prevent these kind of issues persisting.
Clearly, his assurances only have limited value.
PS In his e-mail, as will be seen, Mr. Hynes claims he is attaching ‘a redacted copy of the Agreement for the lease relating to 17 & Central (formerly the Mall, Walthamstow)’.
In fact, his e-mail has no such attachment.
Slopiness or more petty harassment?
Either way, it’s now for the Information Commissioner’s Office to sort out (given that, on an exactly analogous previous occasion, Mr. Hynes refused to correct his lapse, underlining that the review, regardless of anything else, was his last word).
Dear Nicholas Tiratsoo,
FOI Review: FOI428676434…
I am writing to advise you that I have now had the opportunity to carry out a review of your FOI request received on 15 July 2022. This letter sets out my findings and conclusions and is the formal response.
Summary of your FOI Review:
That the Council reconsiders its response sent to you on 07 July 2022.
How I have considered your FOI Review:
In order to address your review request, I have considered:
Your FOI request received on 10 June 2022
The response sent to you on 07 July 2022
Information held by the Council.
Findings:
You submitted an FOI request on 10 June 2022; which was logged and given the reference number FOI428676434. Your FOI requested you be provided, in the following terms:
Please will you send me a copies of all contracts regarding the Mall that LBWF has with Capital & Regional, and also state what financial returns LBWF expects to generate from its relationship with Capital & Regional over the Mall, per annum and over the contract period?
Our response to your FOI request was sent to you in electronic format on 07 July 20222 and stated:
Thank you for your recent request for information regarding FOIA request – The Mall LBWF and Capital & Regional received on 07/07/2022
The Council has completed its search for the information you requested and a copy of the information which can be disclosed is enclosed / attached. The information supplied has been provided by the department responsible for the service delivery. Please note that some of the information requested within the terms of your request is exempt from the right of access under the Freedom of Information Act 2000.
The information is exempt from disclosure under section 41 of the Freedom of Information Act 2000. It is exempt under section 41 because the information is confidential and the Council is subject to a duty of confidentiality in accordance with the terms of the agreements…
Kind regards,
The Information Officer
On 15 July 2022, you submitted a request that the Council review its FOI response sent to you and stated as follows:
Freedom of Information Act
I request a review of your decision, as below.
The ICO guidance on Section 41 is here:
Contracts between two parties are mutually generated, thus not covered by Section 41. If Capital and Regional added its own technical appendices to the contracts, these can be withheld or redacted, though a proper justification will be required.
As to LBWF’s expected financial returns, unless LBWF has acted recklessly, and depended entirely on Capital and Regional for such projections, these again will either be generated mutually or by LBWF alone, so again not subject to Section 41.
Yours sincerely,
Nick Tiratsoo
On receipt of your request that the Council review its response to your FOI request, I reverted to the relevant Service and asked them to review its response to your FOI request.
On considering the response sent to you in fulfilment of your FOI request, it has been established that the Council should not have sought to rely on Section 41 of the Freedom of Information Act 2000 to withhold the information requested.
Please find attached, a redacted copy of the Agreement for the lease relating to 17 & Central (formerly the Mall, Walthamstow).
Conclusion and decision…
As the Council incorrectly relied upon the Section 41 of the Freedom of Information Act 2000 in the original response to you, I can advise you that your complaint has been upheld….
Yours sincerely
Mark Hynes
Data Protection Officer
London Borough of Waltham Forest
