A few weeks ago our Chair made a Freedom of Information request to Lincolnshire County Council.
The request was as follows:-
- Please supply in digital format all and detailed information that you hold on record in respect of impact assessments that have been carried out by the Council in respect of Brexit.
- Please supply in digital format all and detailed information that you hold in respect of Brexit planning work undertaken by the Council.
A response has now been received which has been covered by two countywide newspapers.
The newspaper reports do not include the full response, so in our desire to ensure that the residents of Lincolnshire have as much information as is available, we copy the full response received below:-
In accordance with Section 1(1) (a) of the Freedom of Information Act 2000 (FOIA), you are advised that Lincolnshire County Council does hold information that falls within the description specified in your request.
Lincolnshire County Council has carried out a risk assessment in the event of a no deal Brexit. This assessment covered supply and delivery of services, workforce, business, and operations. The Local Resilience Forum on which Lincolnshire County Council sit has stated to MHCLG that Lincolnshire is at 'low risk' in the event of a no deal Brexit.
Lincolnshire County Council has also nominated a Brexit lead officer and established a working group of councillors to consider the issues relating to the UK leaving the European Union, with or without a deal.
Under Section 36(2) Information is exempt from disclosure if, in the reasonable opinion of a qualified person, disclosure of the information under the FOIA - (b)(i) would or would be likely to, inhibit the free and frank provision of advice, or (c) would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs.
Lincolnshire County Council (the Council) has therefore sought the reasonable opinion of its qualified person, who is the Council's Monitoring Officer, who has confirmed that in their opinion disclosure of the information requested would inhibit the free and frank provision of advice and be prejudicial to the effective conduct of public affairs.
The qualified person’s opinion was formed between 12th August and 6th September 2019 and is summarised below:-
This request relates to a risk assessment which was prepared by Officers in order to provide advice to the Council's Corporate Management Board (now Corporate Leadership Team). This assessment considers the possible risks of a no deal Brexit to Council services and the likelihood and severity of those risks.
Council Officers must be able to provide impartial, open, robust and candid advice to senior managers, including exploring all possible scenarios, particularly, when it relates to important issues like possible risks to Council services. If Officers are inhibited from providing free and frank advice this would impair the quality of decision making within the Council, as senior managers may not be made aware of all relevant factors.
Disclosure of the information requested would cause a 'chilling effect' as it would inhibit the free and frank provision of advice in the future, and that loss of frankness and candour would damage the quality of advice and deliberation and lead to poorer decision making.
The issues surrounding Brexit, particularly in relation to what may happen if the United Kingdom leaves the European Union without a deal, are current and divisive. Whilst it is understandable that individuals are interested to know what actions local authorities are taking and what risks there are to the provision of local services, the Council must have a 'safe space' to enable it to consider sensitive issues and believes that premature public or media involvement would affect the way the Council provides its services.
Placing the requested information in the public domain may also be misleading and result in an increase in press enquiries and requests for information at a time when Councils are already contending with budget constraints. Members of the public may also take unnecessary or undesirable action based on a possible scenario which has been considered by the Council. This is likely to result in Council resources being diverted to manage the effect of the disclosure.
In McIntyre v Information Commissioner and the Ministry of Defence (EA/2007/0068), the Tribunal confirmed that: “this….exemption is intended to apply to those cases where it would be necessary in the interests of good government to withhold information, but which are not covered by another specific exemption, and where the disclosure would prejudice the public authority’s ability to offer an effective public service or to meet its wider objectives or purposes due to the disruption caused by the disclosure or the diversion of resources in managing the impact of disclosure"
The qualified person has concluded that disclosure of the requested information would inhibit the free and frank provision of advice and would prejudice the effective conduct of public affairs and have an adverse effect on the Council's ability to offer an effective public service, to meet its wider objectives and purpose.
The Council is satisfied that disclosure of the information requested would have a "chilling effect" which would inhibit the free and frank provision of advice within the Council in the future, and that the loss of frankness and candour would damage the quality of advice and deliberation and lead to poorer decision making.
In considering the severity, extent and frequency of the prejudice or inhibition, the Council considers that disclosure of the withheld information would severely inhibit the free and frank provision of advice between Council Officers and the leadership team and may interfere with or undermine any decisions made.
Prejudice to the effective conduct of public affairs does not have to be on the Council, it could be an effect on other bodies or the wider public sector. The Council is satisfied that disclosure of the information requested would be prejudicial to effective conduct of public affairs as it would result in the Council and other public bodies diverting their resources to manage the effects of the disclosure.
We are, therefore, satisfied that the exemption under section12 is engaged and that the information requested does not have to be provided under the Freedom of Information Act 2000.
The exemption under section 12 is an absolute exemption and is not subject to the public interest test.
The Council is satisfied that the exemptions at Section 36(2)(b)(i) and (c) are engaged and has determined that the public interest in maintaining the exemptions outweighs the public interest in disclosure of the requested information. The Council has therefore determined that the information requested will not be disclosed.
Section 12(1) of the Freedom of Information 2000 does not oblige a public authority to comply with a request for information if the authority estimates that the cost of complying with the request would exceed the appropriate limit. The appropriate limit is currently £450 or 18 hours at a cost of £25 per hour.
Our initial assessment has identified that to search, locate, retrieve and extract the information requested would exceed the appropriate limit. We estimate that we would need to carry out appropriate searches for any documents which contain the words 'Brexit' and / or 'no deal' and that this is likely to return a significant number of responses but to actually consider all of those responses to identify whether any are within scope of your request would significantly exceed the appropriate limit.
The Council recognises it has a duty to provide advice and assistance to individuals making requests for information under section 16 of the Freedom of Information Act 2000, in order to assist them to narrow their request where the 'appropriate limit' is exceeded. However, in this case, the Council does not believe it would be possible for your request to be narrowed sufficiently to reduce the time it would take to comply with your request below the 'appropriate limit'
If information has been refused please treat this as a Refusal Notice for the purposes of the Act.
After Boris Johnson became our Prime Minister, the Leader of Lincolnshire County Council, Cllr Martin Hill wrote:-
"We’re determined to have a say in what happens in Lincolnshire following Brexit and at the county council.
That’s why we’ve set up a cross-party Brexit Working Group to make sure that our interests are considered when we leave the EU."
If the release of an update to their work 'would cause a 'chilling effect' , it does not offer us any reassurance.
What has changed since the release of information last year?
Has our local authority realised that a No Deal Brexit would pose a greater risk to the county than the Council's leadership would have us believe?
By not releasing this information the Council has given the impression that there is something to hide. If the Council wishes to take us to the waters of Brexit and expects us to drink from it, they have done little to persuade us that those waters are palatable.