No public consultation. Foreseeably and avoidably, innocent persons could be injured or killed.

*****Yes, that’s how serious this is… innocent persons could be seriously

injured or killed, because Wirral Council have switched off hundreds of

street lights without genuine public consultation or internal scrutiny…  now, 

they’re locked into denial and seeking to conceal their actions*****

30th July 2014

I made an FoI request ages ago in December 2013 and it’s finally landed on the desk of a caseworker at the Information Commissioner’s Office, after I’d appealed to the Information Commissioner’s Office in February 2014.  Here’s the original request:

https://www.whatdotheyknow.com/request/street_lighting_switch_off_was_a

Here’s the update received from the ICO, just recently:

From: casework@ico.org.uk [mailto:casework@ico.org.uk]

Sent: 23 July 2014 10:00
To: Paul C
Subject: FOI cases [Ref. FS50533485] [Ref. FS50535453][Ref. FS50535453]

Mr Paul Cardin

23 July 2014
 
Case references: FS50533485 and [FS50535453] << removed for clarity
 
Dear Mr Cardin 
 
Freedom of Information Act 2000 / Environmental Information Regulations 2004
 
I refer to your complaints about how the Wirral Metropolitan Borough Council dealt with your requests for information. You requested the following:
 
Request 1 – FS50533485
 
On 22 January you requested the following:
 
“… the report was provided this morning, but without the identity of the author.  My question is: who wrote the report? Was it Kevin, yourself, a combination of the two or some other party?”
 
The Council responded on 30 January. It refused to disclose the requested information and citied section 40(2) of the FOIA as its basis for doing so.
 
The Council provided an internal review on 27 February.  It said that it had provided you with the outcome of an internal review of its decision, as part of a wider internal review the Council had carried out in response to a separate, but related, information request that you had submitted.  It maintained its position that the information you had requested on 22 January was exempt from disclosure under section 40(2) of the FOIA.

Following intervention by the Commissioner, Wirral Metropolitan Borough Council has advised me that it has amended its initial response to these requests and has now considered them under the Environmental Information Regulations.  It has withheld information in relation to request 1 as it has argued that this information is exempt under regulation 13 (third party personal data).  The Council disclosed some information in relation to request 2 and told you that it does not hold the remainder.

These steps would appear to satisfy the elements of your complaint. [!!] <<my notation
 
If you are content with the steps now taken by the authority, you do not need to take any further action and I will assume that you have withdrawn your complaint. However, if you would like the Commissioner to serve a Decision Notice, or if you remain dissatisfied with the steps taken, please let me know within 7 working days, namely by Friday 1 August.
 
Yours sincerely

Cressida Woodall
Case Officer

So good old Cressida believes that abusive Wirral’s “steps” of invoking the Environmental Information Regulations many, many months on and continuing to withhold the requested information ‘would appear to satisfy the elements of my complaint”.

She has much to learn.  I’m not so easily pleased.

My response:

From: Paul C 
Sent: 30 July 2014 15:32
To: ‘casework@ico.org.uk’
Subject: RE: FOI cases [Ref. FS50533485]

FAO Cressida Woodall

FAO Andrew White  (for information purposes re: conflation of two separate, unrelated requests) 

Dear Ms Woodall, 

Thank you for your email.  I am dissatisfied with the steps taken by both the council and the ICO.  Please ensure this email is forwarded to Andrew White, or to the relevant person should he have moved on. 

Firstly, please note that the data controller in this case, without any explanation, has unhelpfully linked two separate FoI requests together in their response.  I am surprised that you’ve permitted them to do this, which may result in your regulatory response becoming weakened, homogenised and potentially irrelevant e.g. (HOW can one decision notice adequately cover two separate, unrelated requests?) 

I would caution you to check back on the history of this council, which has been forced to self declare abuse of learning disabled people over an EIGHT year period (See 7.1 – portfolio holder for Social Services, Councillor Steve Foulkes is now MAYOR OF WIRRAL), and to pay out large sums of public money in order to conceal its own targeting of complainants and whistleblowers, and its protection of abusive senior officers.  In addition, it has been monitored twice by the ICO, resulting in CEO Graham Burgess being required to sign an ICO undertaking and to make a public statement promising improvement.  The incompetence / refusal to  play ball persists, and cannot be interpreted as ‘improvement’. 

To avoid confusion (which only serves those withholding the information), I will now deliberately separate the two unconnected requests.  The following response relates entirely to FS50533485. 

Link to original request:

https://www.whatdotheyknow.com/request/street_lighting_switch_off_was_a

I would draw your attention to an extract from the Council’s response to my request for an internal review (see above link), below:

“Answer – Following internal discussions and feedback received, the Street
Lighting Manager provided the Deputy Director with professional advice in
the form of a Briefing Note on 5th February – see attached. The budget
option approved by Cabinet/ Council was implemented on this basis.”

The above statement refers to the report / briefing note in question (which was NOT attached first time around but to their second response) – this is report which the council are now withholding the author’s name.

The importance of this is that the Group Leader of Street Lighting, Kevin Ellis (now no longer employed there) made the following statement in September 2011 at the following link, cautioning against any switch off of street lighting equipment: 

http://democracy.wirral.gov.uk/documents/s20224/Street%20Lighting%20Central%20Management%20System%20Trial%20Report.pdf

“8.2 Switching off lights was not considered to be an appropriate course of action for a predominately urban borough. There would also be the risk of litigation in the event of an accident at a site where the lights had been switched off.”
 

I am a former street lighting designer and engineer, and the above statement, from a report which predates the report under question, clearly displays to me a well-founded unwillingness on the part of the most senior Street Lighting professional at Wirral Council to agree to the idea of switching off street lights, with or without consultation. 

I believe the council, having now undertaken the switching off of street lights, do NOT wish to reveal the author of the second, more recent report, because it may reveal that Kevin Ellis had changed his opinion.  It can also be seen from the above link that for this first report, the council were content to agree with the requirements of transparency, openness and full public oversight by publishing the report author’s name on their own website. 

It also appears that Kevin Ellis’ above statement on the risks did not come up for scrutiny the second time around, when it was vital that all information should have been set before councillors.

What’s changed in the interim? 

Why are the council claiming Section 40 (personal data privacy) as an exemption this time around, and not revealing the author’s name, if not to conceal something which may damage their reputation or raise legitimate questions about what is now looking like a hasty decision to save money by plunging large areas of Wirral into darkness?  I believe there is no justification for them to withhold this information because we are not being told the full truth about the situation.

Furthermore, the implications could not be more dire if somebody is seriously injured or killed as a result of this council’s potentially unscrutinised actions.

Please take this information into account in your deliberations and I look forward to receiving a decision notice soon,

Yours sincerely,

Paul Cardin

NB.  This one’s heading for the First Tier Tribunal, regardless of what the ICO comes up with in its Decision Notice (promised for September – 10 months after the original request was made).

We can’t be allowing councillors to plunge vast swathes of Wirral into darkness, risking life and limb; fail to consult the public on it; bully their senior officers, and then try to browbeat FoI requesters with evasive, nonsensical responses to perfectly valid requests for information.

UPDATE – 26th September 2014

The council’s legal position on this is that they (the public) pay enough public liability insurance to cover any claims that may arise from any increase in accidents caused by streetlights being switched off, and the associated legal claims that may flow from that.

But this is a massive cop-out.  What happened to ‘morality’?  The issue of:

More accidents = more people being killed or seriously injured

The council top brass appear to have washed their hands of the moral and ethical questions and focused on the cash alone.  Okay, I know, they as an organisation have no duty to provide street lighting, but it was always in their power to provide it, and provide it they did, many years ago.  If they’re happy about the money issues, that they’re COVERED, and sod the local citizens’ life and limb…

Why don’t they turn off ALL the lights, save an absolute fortune, AND reinvest the money saved?

Here’s the appeal I was going to lodge (incomplete), but which is now cancelled because time has run out…

“I believe it’s crucial that the United Kingdom judicial authorities are notified of a dangerous situation which has come about on Wirral that may have placed the lives of the travelling public in foreseeable and avoidable danger.  This relates to the switching off of approaching 1,000 street lights on Wirral Council highways.

This hazardous situation has developed in no small part due to failure by Wirral Metropolitan Borough Council, the local authority holding the relevant powers, to undertake a full, comprehensive consultation and to carry out correct oversight and proper scrutiny of all available facts and documentation.

The council’s street lighting Group leader, Kevin Ellis, at the time the most senior lighting person within the authority, within a report entitled “Street Lighting Central Management System Trial” had clearly indicated to council members on 1st September 2011 of his concern, should street lights be switched off:

“8.2 Switching off lights was not considered to be an appropriate course of action for a predominately urban borough. There would also be the risk of litigation in the event of an accident at a site where the lights had been switched off.”

This management system trial document has been provided as part of this submission and it can be seen at the time that Kevin Ellis gave his consent to his name being disclosed as the author of the report.

Some time later, the council sought to save thousands of pounds in public money by undertaking a programme of street lighting ‘switch-offs’ in designated areas.  Some internal consultation was undertaken with the street lighting section aimed at targetting the most suitable roads and areas.  A second report (briefing note) entitled “Savings From Switching Off Streetlights” was presented before councillors (no date, no author).

It is not clear whether Kevin Ellis, who had been approaching retirement at the time, was in fact the author of this second report.  We do know that the author of this second report did NOT provide consent for his name to be disclosed.

It is also not clear whether Kevin Ellis’ previous cautionary advice to members (above) regarding risk of litigation where lights had been switched off was either indicated to them or heeded this time around.  The second report failed to include any reference to an increased risk of litigation, and held no cautionary advice, merely the promise of potential financial savings [unfinished…]”

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About Wirral In It Together

Campaigner for open government. Wants senior public servants to be honest and courageous. It IS possible!
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4 Responses to No public consultation. Foreseeably and avoidably, innocent persons could be injured or killed.

  1. John Brace says:

    I’m still waiting for ICO to issue a decision notice on a FOI request I lodged with Wirral Council in March 2013, that was appealed to ICO in August 2013. Are yours dealt with on some sort of fast track as a year has gone by with mine and many deadlines missed (although their excuse is that getting replies out of Wirral Council is unusually difficult!)

    • Wirral In It Together says:

      “Are yours dealt with on some sort of fast track”

      John, some of mine are two years plus from start to finish.

      • John Brace says:

        Sorry I should have added a :), the comment was meant somewhat tongue in cheek.

        I suppose appealing something to ICO is rather new to me, it’s quicker watching paint dry (not down to ICO really but down to Wirral Council treating and having treated FOI requests with contempt).

      • John Brace says:

        Oh as it relates to all this, here’s a bit of news, I’ve requested Wirral Council’s contract with BAM Nuttall as part of the audit. Today was the last day (deadline 4pm) that anyone can make such requests.

        In theory by some point in November all contracts over a certain amount (along with invoices) should be published by Wirral Council. Do you think they will meet this legal duty on time?

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