ICO COMPLICIT IN KCTMO GRENFELL COVER UP

By now it almost goes without saying that a catalogue of failures and criminal negligence contributed to the Grenfell Fire disaster. The criminally negligent decision to replace the external cladding and insulation with inferior alternatives that were highly toxic and highly combustible was of course chief among these. But there were many other factors that contributed to this catastrophe: the gross overdevelopment of the adjacent area that badly compromised emergency access, the gross underfunding of the fire service over recent years that left them ill-equipped to deal with the enormity of the challenge they were faced with, the smoke detection and extraction system and the fire alarms, all of which appear to have failed, the botched installation of the windows and the decision to fix gas pipes for the new heating and hot water system to the walls of the stairwell and lobbies. All of these factors appear likely to have contributed significantly to the disaster.

As of now we can only hope and expect that all contributory factors will  be identified and fully addressed in both the criminal investigation and the public inquiry.

Today’s blog, however, will focus on none of the above but will seek instead to reveal the failures of the Information Commissioners Office, the flawed interpretations of the Freedom of Information Act on which their decisions were based, and the shameless exploitation of these failings by the KCTMO, who were thereby enabled to avoid public scrutiny of their grossly negligent housing management practices by conducting their affairs behind a veil of secrecy.

In 2012, following a refusal to disclose information requested from the KCTMO on behalf of the Grenfell Action Group, Edward Daffarn, co-founder of the Grenfell Action Group and co-author of our blog appealed against a KCTMO refusal to the Information Commissioner’s Office (ICO). To our great surprise and consternation his appeal was denied by the ICO. The reason given for this decision was as follows:

“KCTMO is not a public authority as defined by the FOIA and does not have a duty to respond to information requests made under the FOIA.”

2012 ICO Appeal refusal email

in 2014, shortly after the Genfell Tower refurbishment works had begun Eddie again requested information from the KCTMO. This time he asked for copies of the minutes of monthly meetings attended by representatives of the TMO, the architects Studio E, and the contractors Rydons who were involved in the Grenfell refurbishment. Unsurprisingly the TMO refused his request. Already discouraged by the outcome of his 2012 ICO appeal, Eddie decided it would be pointless to appeal again on this this occasion. He was probably right and as a result we never got sight of the minutes in question.

The reaons given by the company secretary of the TMO (at that time Fola Kafidiya) for witholding the minutes Eddie had requested are extremely revealing. She claimed, not that the TMO was exempt from the FOIA, as the ICO had earlier claimed, but that the requested information was not held on behalf of the public authority (RBKC) and stated that the Freedom of Information Act applies not just to information held by public authorities but also to information held on behalf of public authorities. ICO guidance updated in 2017 confirms the latter part of Ms Kafidiya’s statement, in particular paragraphs 17 and 39 of the guidance which is quoted below:

“17. The definition in section 3(2) of FOIA of information “held by a public authority” includes information “‘held by another person on behalf of an authority”. Therefore, information that a contractor holds on behalf of a public authority is also in scope of a FOIA request, even if the authority never physically holds it in its own hard copy or electronic files.

39. Public authorities cannot contract out of their FOIA responsibilities.”

https://ico.org.uk/media/1043530/outsourcing-and-freedom-of-information.pdf

The reasons offered for the KCTMO refusal to disclose are noteworthy, and highly significant, for the following reasons:

(i) In refusing Eddie’s appeal in 2012 the ICO failed to inform him that information held on behalf of a public authority is still subject to the FOIA. The decision notice issued by the ICO in 2012 was therefore based on a partial and highly misleading interpretation of the Act and was therefore incorrect.

(ii) The claim by KCTMO in 2014 that the minutes Eddie was seeking were not held on behalf of the public authority is highly questionable if not entirely bogus. All major works carried out by KCTMO are carried out on behalf of the local authority and all associated documentation is, therefore, held on behalf of the local authority. The KCTMO exists solely to manage the housing stock owned by the local authority (RBKC) Therefore all information held by KCTMO related to the condition of the housing stock theey manage, including information related to fire safety, or other health and safety issues, is held on behalf of the local authority and should be copied to the local authority.

(iii) At no time did the KCTMO or the ICO refer any of our FOI issues with the TMO to RBKC or advise us that we should consider doing so.

The minutes Eddie had been seeking would almost certainly have recorded discussion of the decision to replace the fireproof cladding and insulation specified in the planning application with cheaper alternatives that had not been specified and which we now know were highly flammable and highly toxic. Had we had access to that information at the time, or enough of that information to enable further research, we would almost certainly have discovered the dangers inherent in the alternative products that were used.

Armed with that information we would have raised hell. It is impossible to know now whether publishing that information would have made any difference to subsequent events, or whether there was any way we could have prevented the atrocity that subsequently befell the residents of Grenfell Tower, but we never had a chance to raise this issue because the minutes we needed were so cynically and illegally witheld from us.

On 15th june 2017, the day after The Grenfell Fire, I made a Freedom of Information request to the KCTMO. Eddie, who had lived in Genfell, had lost his home and narrowly escaped with his life. He had of course also lost his computer and was virtually unreachable by phone, so it fell to me to continue alone the important work of the Grenfell Action Group blog. Before then I had assumed that because I had moved to Ireland in 2013 I could no longer use the UK Freedom of Information Act. I was amazed to discover this was not true and that I could make a FOI request from anywhere.

I requested a copy of a consultants report from 2005 which documented a serious failure by the TMO and one of its contractors to maintain the emergency lighting system in the stairwell of Grenfell Tower. The report confirmed that two thirds of the emergency lighting had failed a routine inspection in February 2004 and was a damning indictment of the mismanagement, negligence and incompetence of the TMO and its contractor at that time.

My reasons for making the request were twofold. Firstly, I recognised the evidential value of the report in relation to the Grenfell fire, particularly if further evidence emerged that the TMO had failed to properly maintain the Grenfell tower emergency lighting during the  succeeding years, as I had long suspected.

My second reason for pursuing the request was to test to destruction repeated KCTMO refusals to disclose vital information by appealing and re-appealing to both the KCTMO and the ICO until I had exhausted all avenues open to me. It simply made no sense to me that the biggest public housing management company in London, which had been created for the sole purpose of contracting out the management of the entire RBKC housing stock, had no legal duty to publicly disclose vital information about the condition of that housing stock, especially information relating to fire safety and other health and safety issues.

On 14th July I received a refusal notice from Sinead McQuillan, the latest company secretary at the TMO, which stated in part:

“The TMO is a private company limited by guarantee. It is not a body which is subject to the Freedom of Information Act. The Act applies principally to public authorities as defined in the Act. The TMO is not one of those organisations.”

Because the KCTMO had once again claimed that they were not subject to the FOIA it seemed pointless to follow the normal mandatory procedure of requesting a review of the initial decision, so I immediately appealed to the ICO.

What followed over the next several months was a series of flip-flops by the ICO, the like of which I had never before witnessed, in which they refused my initial appeal on 1st August, then suddenly reversed that decision on 8th August, on receipt of a further appeal by me. The new decision was accompanied by a letter addressed to the KCTMO, key details of which I quote below:

“There would appear to be conflicting evidence on your website as to the status of your organisation for the purposes of the Freedom of Information Act (FOIA). There is evidence to suggest that your organisation is an Arms Length Management Organisation (ALMO) for the Royal Borough of Kensington and Chelsea. ALMO’s are regarded as public authorities and are therefore subject to the FOIA. Based on the information available to me I have therefore taken the view that you are a public authority for the purposes of the FOIA….It would be appreciated if you could now issue a response that complies with the FOIA within 10 working days of receipt of this letter. “

8 Aug decision notice from ICO to KCTMO

However, instead of accepting the ICO decision, and complying with the instruction issued with it, to my horror the KCTMO instead appealed against it. The outcome of the TMO appeal was that the decision of 8th August, which had favored me, was overturned on 30th August by a more senior ICO officer, the KCTMO was again declared by the ICO to be exempt from the Feedom of Information Act, and the case was closed. What’s more the ICO had once again failed to clarify that information held by a contractor (KCTMO) on behalf of a public authority (RBKC) falls within the scope of the FOIA.

30 Aug ICO final decision

A crucial implication of all of the above is that we were repeatedly denied by KCTMO, on false pretences and with the full support of the ICO, important and sometimes vital information to which we were fully entitled under the Freedom of Information Act.

I finally succeeded in obtaining a copy of the Grenfell Tower emergency lighting report, not from the TMO, but by asking Robin Yu, the Information Governance and Management Officer at RBKC, to request a copy from the TMO. He did so and forwarded it to me on 16th October. A copy is attached below and I strongly urge anyone with knowledge of subsequent failures of the Grenfell emergency lighting system to contact the Metroplolitan Police Grenfell Investigation team (Operation Northleigh) and make a statement.

Grenfell emergency lighting report 2005

Perhaps the most disturbing aspect of this entire saga is the repeated failure of the ICO to advise us at any time that the definition in section 3(2) of the Freedom of Information Act implicitly recognises that information ‘held by a public authority’ includes information ‘held by another person on behalf of a public authority’ and that information held by a contractor (eg KCTMO) on behalf of a public authority (RBKC) falls within the scope of the Act, even if the authority never physically holds it in its own hard copy or electronic files.

Almost as disturbing, and I use the word ‘almost’ because we have learned from experience not to expect anything better from them, is the attitude of the KCTMO which, knowing full well that most, if not all, of the information in their possession is held on behalf of RBKC, failed on every occasion to refer our FOI requests to the Council, and never once advised us that we could or should have redirected our FOI requests to the Council. Indeed the KCTMO were culpable not just in failing to discharge their duties under the FOIA, they were also in breach of their management agreement with RBKC. According to the email I received from Sinead McQuillan on 14th July:

“KCTMO are obliged to provide information about their services under the terms of their management agreement with RBKC where that information relates to the Council’s obligations under FOIA or other legal requirements.”

Both of these bodies, KCTMO and ICO, were complicit, through their failure to discharge their duties fully, competently and impartially, in the deaths of the many who perished in the Grenfell Tower fire and should be held to account for their failings. Whether they resulted from negligence or incompetence the fact remains that the failure to discharge their duties fairly, competently and with due care and diligence had consequences of the utmost gravity for the residents of Grenfell Tower, both the living and the dead.

 

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