Stephen Whiteside

Dear Croydon Borough Council,

I note from the Application Form that pre-application advice [ref 17/01144/PRE] was provided in March 2017, which included comments on roof design, flank elevations detail, the size of glazing in basement apartments, the size of apartments generally and landscape design.

Please provide any information relating to Mrs Tucker’s advice, including but not restricted to copies of what was submitted by the applicant, the minutes of any meeting[s] and the officer’s advice letter [or email].

Yours faithfully,

Stephen Whiteside

Freedom of Information,

 

Dear Mr Whiteside

 

Freedom of Information Request

 

Thank you for your recent request.

 

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Joanne Welch-Hall

FOI Co-ordinator

Croydon Council

 

Information in relation to the London Borough of Croydon is available
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Freedom of Information requests can also be found on the following link

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Dear Freedom of Information,

Planning Application 17/03916/FUL - Pre-application advice

By law, the authority should normally have responded promptly to this request and by 6 November at the latest.

Could you now please provide the requested information as soon as possible.

Yours sincerely,

Stephen Whiteside

Information,

Dear Mr Whiteside,

We apologise for the time this is taking to process.

Your request is still receiving attention and we are urgently chasing the answering department for a response.

Once we have this we will immediately send out to you.

Apologies for any inconvenience.

Kind regards.

Jo

Jo Welch-Hall
Information Support Officer

Resources Department
Customer Transformation and Communications Services
Information and Systems Manager
7th Floor, Zone B
Bernard Weatherill House
8 Mint Walk
Croydon CR0 1EA

dangos adrannau a ddyfynnir

Freedom of Information,

2 Atodiad

Dear Mr Whiteside

 

Freedom of Information Request

Please see attached the council's response to your Freedom of Information
request.

Yours sincerely

 

Lynda Fay

FOI Coordinator

Croydon Council

 

Council services, online, 24/7 www.croydon.gov.uk/myaccount Download our
new free My Croydon app for a faster, smarter and better way to report
local issues www.croydon.gov.uk/app From 1 October 2015, it is a legal
requirement for all privately rented properties in Croydon to be licensed.
Landlords without a licence could face fines of up to £20,000. For more
information and to apply for a licence visit
www.croydon.gov.uk/betterplacetorent Please use this web site address to
view the council's e-mail disclaimer -
http://www.croydon.gov.uk/email-disclaimer

Dear Croydon Borough Council,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Croydon Borough Council's handling of my FOI request 'Planning Application 17/03916/FUL - Pre-application advice'.

Redaction

Your response tells me that “Some information has been redacted as it held information relating to individuals… under Regulations 12(3) and 13 of the Environmental Information Regulations 2004”.

More specifically, you say that names of council officers have been redacted because “… it has been the custom and practice for the Council to generally only release the names of staff down to ‘Head of Service’ level, which the Council considers meets the Transparency Code issued by the Secretary of State for Communities and Local Government.” You also claim that this “custom and practice” is “..consistent with guidance issued by the Information Commissioner, including a Decision Notice issued in respect of a similar request FS50276863.”

Environmental Information Regulations 2004 [EIR]

As I understand it, Regulation 12(3) and 13 CAN have the effect of prohibiting the Council from disclosing third party personal data, but ONLY if this would breach the Data Protection Act.

Regulation 12(2) establishes a presumption in favour of disclosure. If the Council has established that an exception is engaged, it is THEN necessary to weigh the competing public interests, per regulation 12(1)(b). That is, the public interest in disclosing the information as weighed against the public interest in maintaining the exception.

I believe that the Council has neither shown WHY an exception is engaged in THIS case, nor carried out the Public Interest [PI] test required by the legislation.

It is also pertinent to note that DN relied upon, was issued in respect of a request made and handled under the Freedom of Information Act 2000 [FOIA]. You have acknowledged however, that THIS request has been considered under the provisions of the Environmental Information Regulations 2004 [EIR] and the ‘presumption in favour of disclosure’ should therefore have been applied.

Decision Notice - ICO Case Reference FS50276863

Paragraph 5 of the Decision Notice [DN] on which the Council relies, confirms that initially the FSA claimed that its policy was “… not … to disclose details of staff below Head of Department level.” Paragraph 13 however, explains that “During the course of the Commissioner’s investigation …The FSA agreed to disclose the names of its employees who worked at the level of manager …. The FSA accepted the Commissioner’s preliminary view that such senior individuals within the organisation had a high level of accountability and responsibility which warranted the disclosure of their names”.

The ICO therefore does NOT adopt the simplified approach suggested by Croydon. Instead, the DN illustrates that for a request - which is not a routine matter for which a ‘formula’ is the only practical approach - ALL 3 fairness tests - or factors* - that the ICO has described need to be applied (see also the supplementary factors at paragraph 48). Their application must have specific regard to the situation.

The three factors ICO considers in judging fairness in disclosure:
1. the individual’s reasonable expectations of what would happen to their information;
2. the consequences of disclosure (if it would cause any unnecessary or unjustified damage or distress to the individual concerned); and
3. the balance between the rights and freedoms of the data subject and the legitimate interests of the public.

The supplementary factors that should be considered:
4. the seniority of the role
5. whether the role is public facing
6. whether the position involves a significant level of personal judgement and individual responsibility

‘Seniority’ is therefore only ONE factor and the Council has NOT demonstrated the weighing of ALL the ‘factors’ set out by the ICO in guidance.

Local Government Transparency Code 2015 [DCLG]

Although the Code appears to deal essentially with pre-defined datasets and a routine publishing scheme, paragraph 6 helpfully explains “This Code ensures local people can now see ... how decisions are taken and who is taking them …”.

Paragraph 15 confirms that "….The Data Protection Act 1998 does not restrict or inhibit information being published about councillors or senior local authority officers because of the legitimate public interest in the scrutiny of such senior individuals and decision makers…".

As set out above, the DN relied upon explicitly demonstrates that the Code level of seniority was NOT accepted by the ICO as a sufficient basis for determining disclosure. That is because the decision-making powers/public facing nature etc of officers’ roles and public interest must all be weighed up.

Paragraph 22 of the Code also usefully clarifies that “… Where information would otherwise fall within one of the exemptions from disclosure, for instance, under … the Environmental Information Regulations 2004 … Local authorities should start from the PRESUMPTION OF OPENNESS AND DISCLOSURE OF INFORMATION [my emphasis], and not rely on exemptions to withhold information unless absolutely necessary.”

Officers of the Council

Although I understand why those senior employees in scope for the Code are most likely to ‘tick the box’ against the three factors (esp. 1 and 3) much (if not all) of the time, that does NOT automatically 'eliminate' everyone else. It must depend on their role and the specific circumstances... and how the relevant ‘factors’ apply to those.

I believe that there may well be circumstances [like here] where it IS entirely appropriate to release the details of more junior officers, particularly when those details are already in the public domain.

As the ICO makes clear, “… there is a public interest in fully understanding the reasons for public authorities’ decisions, to remove any suspicion of manipulating the facts, or ‘spin’. For example, this may well be a public interest argument for disclosing advice given to decision makers. …”

The Review

I believe this Council’s approach amounts to a form of “blanket redaction” and I do not agree that this position “…is consistent with guidance issued by the Information Commissioner …” and/or the “ Decision Notice issued in respect of … FS50276863]…”. Indeed, I believe that both ICO guidance AND elements of the Notice strongly suggest that the Council should reconsider its position with regard to redaction of ‘personal data’ in this case and more generally.

THIS request is being considered under the EIR and the ‘presumption in favour of disclosure’ should be applied. I believe the onus is [still] on the Council to clearly demonstrate WHY, in THIS case, it would be unfair to disclose the redacted information. If, for any piece of that information, they cannot so demonstrate, then the information should be disclosed

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/p...

Yours faithfully,

Stephen Whiteside

Gadawodd Janet Stollery anodiad ()

You may like to read here where the council again is concealing who is taking decisions: -
http://bit.ly/2zh9CwS

Passman, Howard,

Dear Mr. Whiteside,

 

Further to your 22 November 2017 in which you requested an Internal Review
of the Council’s response to your request for information, made under the
Environmental Information Regulations (EIR), I have now concluded this
review and I am able to reply as follows.

 

In your request for information by e-mail dated 10 October, 2017 you
requested the following information:

 

“I note from the Application Form that pre-application advice [ref
17/01144/PRE] was provided in March 2017, which included comments on roof
design, flank elevations detail, the size of glazing in basement
apartments, the size of apartments generally and landscape design.

 

Please provide any information relating to Mrs Tucker’s advice, including
but not restricted to copies of what was submitted by the applicant, the
minutes of any meeting[s] and the officer’s advice letter [or email].”

 

The Council responded to you on 9 November 2017 providing the requested
information but withholding personal information as it was considered to
be excepted from disclosure under regulations 12(3) and 13 of the
Environmental Information Regulations 2004.  This included the names of
officers of the Council, on the basis the Council generally only release
the names of staff down to ‘Head of Service’ level, which the Council
considers meets the Transparency Code issued by the Secretary of State for
Communities and Local Government.  Furthermore the council considers that
this position is consistent with guidance issued by the Information
Commissioner, including a Decision Notice issued in respect of a similar
request FS50276863.

 

In your request for an Internal Review dated 22 November 2017, you raised
the following issues:

 

“Redaction

 

Your response tells me that “Some information has been redacted as it held
information relating to individuals…   under Regulations 12(3) and 13 of
the Environmental Information Regulations 2004”.

 

More specifically, you say that names of council officers have been
redacted because “… it has been the custom and practice for the Council to
generally only release the names of staff down to ‘Head of Service’ level,
which the Council considers meets the Transparency Code issued by the
Secretary of State for Communities and Local Government.” You also claim
that this “custom and practice” is “..consistent with guidance issued by
the Information Commissioner, including a Decision Notice issued in
respect of a similar request FS50276863.

 

Environmental Information Regulations 2004 [EIR]

 

As I understand it, Regulation 12(3) and 13 CAN have the effect of
prohibiting the Council from disclosing third party personal data, but
ONLY if this would breach the Data Protection Act. 

 

Regulation 12(2) establishes a presumption in favour of disclosure.  If
the Council has established that an exception is engaged, it is THEN
necessary to weigh the competing public interests, per regulation
12(1)(b). That is, the public interest in disclosing the information as
weighed against the public interest in maintaining the exception. 

 

I believe that the Council has neither shown WHY an exception is engaged
in THIS case, nor carried out the Public Interest [PI] test required by
the legislation.

 

It is also pertinent to note that DN relied upon, was issued in respect of
a request made and handled under the Freedom of Information Act 2000
[FOIA].  You have acknowledged however, that THIS request has been
considered under the provisions of the Environmental Information
Regulations 2004 [EIR] and the ‘presumption in favour of disclosure’
should therefore have been applied.

 

Decision Notice - ICO Case Reference FS50276863

 

Paragraph 5 of the Decision Notice [DN] on which the Council relies,
confirms that initially the FSA claimed that its policy was “… not … to
disclose details of staff below Head of Department level.”   Paragraph 13
however, explains that “During the course of the Commissioner’s
investigation …The FSA agreed to disclose the names of its employees who
worked at the level of manager …. The FSA accepted the Commissioner’s
preliminary view that such senior individuals within the organisation had
a high level of accountability and responsibility which warranted the
disclosure of their names”.

 

The ICO therefore does NOT adopt the simplified approach suggested by
Croydon.  Instead, the DN illustrates that for a request - which is not a
routine matter for which a ‘formula’ is the only practical approach - ALL
3 fairness tests - or factors* - that the ICO has described need to be
applied (see also the supplementary factors at paragraph 48).  Their
application must have specific regard to the situation.

 

The three factors ICO considers in judging fairness in disclosure:

 

1.  the individual’s reasonable expectations of what would happen to their
information;

2.  the consequences of disclosure (if it would cause any unnecessary or
unjustified damage or distress to the individual concerned);

and 3.  the balance between the rights and freedoms of the data subject
and the legitimate interests of the public.

 

The supplementary factors that should be considered:

4. the seniority of the role

5. whether the role is public facing

6. whether the position involves a significant level of personal judgement
and individual responsibility

 

‘Seniority’ is therefore only ONE factor and the Council has NOT
demonstrated the weighing of ALL the ‘factors’ set out by the ICO in
guidance.

 

Local Government Transparency Code 2015 [DCLG]

 

Although the Code appears to deal essentially with pre-defined datasets
and a routine publishing scheme, paragraph 6 helpfully explains “This Code
ensures local people can now see ... how decisions are taken and who is
taking them …”.

 

Paragraph 15 confirms that "….The Data Protection Act 1998 does not
restrict or inhibit information being published about councillors or
senior local authority officers because of the legitimate public interest
in the scrutiny of such senior individuals and decision makers…".

 

As set out above, the DN relied upon explicitly demonstrates that the Code
level of seniority was NOT accepted by the ICO as a sufficient basis for
determining disclosure.  That is because the decision-making powers/public
facing nature etc of officers’ roles and public interest must all be
weighed up.

 

Paragraph 22 of the Code also usefully clarifies that “… Where information
would otherwise fall within one of the exemptions from disclosure, for
instance, under … the Environmental Information Regulations 2004 … Local
authorities should start from the PRESUMPTION OF OPENNESS AND DISCLOSURE
OF INFORMATION [my emphasis], and not rely on exemptions to withhold
information unless absolutely necessary.”

 

Officers of the Council

 

Although I understand why those senior employees in scope for the Code are
most likely to ‘tick the box’ against the three factors (esp. 1 and 3)
much (if not all) of the time, that does NOT automatically 'eliminate'
everyone else.  It must depend on their role and the specific
circumstances... and how the relevant ‘factors’ apply to those. 

 

I believe that there may well be circumstances [like here] where it IS
entirely appropriate to release the details of more junior officers,
particularly when those details are already in the public domain. 

 

As the ICO makes clear, “… there is a public interest in fully
understanding the reasons for public authorities’ decisions, to remove any
suspicion of manipulating the facts, or ‘spin’. For example, this may well
be a public interest argument for disclosing advice given to decision
makers. …” 

 

The Review

 

I believe this Council’s approach amounts to a form of “blanket redaction”
and I do not agree that this position “…is consistent with guidance issued
by the Information Commissioner …” and/or the “ Decision Notice issued in
respect of … FS50276863]…”.  Indeed, I believe that both ICO guidance AND
elements of the Notice strongly suggest that the Council should reconsider
its position with regard to redaction of ‘personal data’ in this case and
more generally.

 

THIS request is being considered under the EIR and the ‘presumption in
favour of disclosure’ should be applied. I believe the onus is [still] on
the Council to clearly demonstrate WHY, in THIS case, it would be unfair
to disclose the redacted information. If, for any piece of that
information, they cannot so demonstrate, then the information should be
disclosed.”

 

I have considered the issues you have raised in your request for an
Internal Review and I also consulted with the Director of Planning and
Strategic Transport.

 

The name of one of the officers Louise Tucker, who was the case officer
for this application and whose name does appear in the public domain.  Her
name along with that of the applicant/agent appears within the information
published as a matter of routine in the Council’s planning portal,
alongside the relevant application documents
 ([1]http://publicaccess2.croydon.gov.uk/onli....

 

Therefore, the Council incorrectly applied the exception available under
regulations 12(3) and 13 of the Environmental Information Regulations
2004, in redacting her name from the documents provided to you.  While
this officer is not of Head of Service level, her post is what could be
termed public facing, in that due to the nature of her role and as a
consequence, her name will enter the public domain as a result the
management of the planning application’s under her control.  

 

I am able to confirm that in the letter dated 6 June 2017 and the emails
dated 16-18 May 2017 two officer’s names were redacted, one of which was
Louise Tucker.

 

Having considered the role of the other individual whose name was
redacted, I do not consider that this officer holds a public facing role.
Further after taking into account their relative seniority, I consider
that the Council reasonably withheld this name and the exception available
under regulations 12(3) and 13 of the Environmental Information
Regulations 2004 was applied appropriately in respect of this individual.

 

Please accept my apologies for the delay you experienced in being provided
with the information that you requested.

 

If you are not content with the outcome of the Internal Review, you have
the right to apply directly to the Information Commissioner for a
decision. The Information Commissioner can be contacted at:

 

Information Commissioner’s Office

Wycliffe House

Water Lane

Wilmslow

Cheshire SK9 5AF

 

Yours sincerely,

 

Howard Passman

Legal Services

020 8726 6000 ext. 62318

 

 

 

Resources Department

Legal Services

Commercial and Property Law

7th Floor Zone C

Bernard Weatherill House

8 Mint Walk

Croydon CR0 1EA

 

Council services, online, 24/7 www.croydon.gov.uk/myaccount Download our
new free My Croydon app for a faster, smarter and better way to report
local issues www.croydon.gov.uk/app From 1 October 2015, it is a legal
requirement for all privately rented properties in Croydon to be licensed.
Landlords without a licence could face fines of up to £20,000. For more
information and to apply for a licence visit
www.croydon.gov.uk/betterplacetorent Please use this web site address to
view the council's e-mail disclaimer -
http://www.croydon.gov.uk/email-disclaimer

References

Visible links
1. http://publicaccess2.croydon.gov.uk/onli...

Dear Mr Passman,

Having determined that the Council were WRONG to redact the case officer’s details from the information provided on 9 November, would you now please arrange for that information to be provided again as soon as possible, this time with those details UNredacted.

In determining that the Council reasonably withheld the name of “the other individual whose name was redacted”, it appears that you have considered only two of the six ‘factors’ that the ICO has described need to be applied, seniority and public facing role. Although I am not at all content with this aspect of your Internal Review, I have decided that on this occasion, I will not pursue this particular matter further with the Information Commissioner.

Yours sincerely,

Stephen Whiteside

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