Biodiversity damage to the Wirral Way, LONG DISTANCE PUBLIC FOOTPATH.

Alan Rundle made this Freedom of Information request to Wirral Metropolitan Borough Council

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

The request was refused by Wirral Metropolitan Borough Council.

Dear Wirral Metropolitan Borough Council,

The use of dumper trucks to spread an aggregate concrete mix along five, 400 metre long, stretches of public footpath, on the Wirral Way, is unacceptable to many local residents.
Apparently, £131,000 of public health funding has been allocated to be spent on the Widening and resurfacing scheme.

The habitats of frogs, newts and dragonflies are being damaged.

Many members of the "public concerned" (local residents of all ages) wish to see the biodiversity along the Wirral Way enriched, not reduced.

Please supply copies of ALL emails, faxes and letters from or to
Council officer Mary Worrall that relate to the Wirral Way
Widening and Resurfacing Scheme.

Yours faithfully,

Alan Rundle

Corrin, Jane, Wirral Metropolitan Borough Council

Dear Mr. Rundle,
Thank you for your request for information. Your enquiry has been processed under the Environmental Information Regulations 2004 as it falls within the definition of ‘environmental information’, chiefly

the state of the elements of the environment, such as air and atmosphere, water, soil,
land, landscape and natural sites including wetlands, coastal and marine areas,
biological diversity and its components, including genetically modified organisms,
and the interaction among these elements (EIR R.2(a))

The Council can confirm that it does hold information which meets the parameters of your request.

The Council has paid due consideration to R.12(4)(e) of the legislation.

12.
(1) Subject to paragraphs (2), (3) and (9), a public authority may refuse to disclose
environmental information requested if—
(a) an exception to disclosure applies under paragraphs (4) or (5); and
(b) in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information.

(4) For the purposes of paragraph (1)(a), a public authority may refuse to disclose
information to the extent that

(e) the request involves the disclosure of internal communications.

The Council has made reference to the guidance on R12(4)(e) published on the Information Commissioner’s website at this link.

As with all exceptions under EIR, R.12(4)(e) is a qualified exception and is therefore subject to the public interest test as set out in R.12(1)(b). Furthermore, it is class-based (rather than prejudice-based), meaning that the sensitivity of the information does not need to be considered.

The public interest factors for disclosure include the necessary opportunity for the authority to be accountable for their work to the public and how it utilises the public purse.

When involved in the decision making process, however, it is important that public authority officers are allowed an opportunity for the free and frank exchange of ideas. This is to ensure that all options are considered prior to any formal publication or consultation. The public interest factors for withholding this information are to protect this process. The ICO’s guidance states that ‘public interest arguments should be focussed on protecting the public authority’s private thinking space. Other arguments will not be relevant to this exception.’

If these internal communications were to be released, officers may understandably be reluctant to fully engage in future conversations as each aspect could be open to public examination. The result of this is that the discussion may not explore all possible options or give due consideration to pertinent issues.

The role of a public authority officer comes with a certain degree of autonomy within the parameters of the organisations stated policies and procedures. It would simply be impractical for all actions to be scrutinised by the public due to the adverse impact that this would have on the role they are employed to carry out, and would therefore constitute a misuse of public money.

The Council is therefore of the opinion that, due to the impact that disclosure would have on our ability to efficiently conduct public functions, the public interest for withholding the requested information outweighs that of disclosure.

External communications between the Council and members of the public are seen to be the personal information of the correspondents. This means data which relates to a living individual who can be identified from that data (Section 1(1) of the Data Protection Act 1998). I consider that there would have been no expectation on behalf of the data subjects that this information would be disclosed to a third party, and that the supply of the information requested would enable individuals to be identified.

I therefore consider that this part of your request is exempt information under R.12(3) of the Environmental Information Regulations. I consider that the disclosure of the requested information would contravene the first data protection principle, that personal data shall be processed fairly and lawfully, and shall not be processed unless at least one of the conditions in Schedule 2 of the Act is met. I do not consider that any of the conditions in Schedule 2 would be met in this instance.

I have considered whether there is a legitimate public interest in disclosure and balanced this against the rights of the individuals. This is an absolute exemption and not subject to the public interest test.

I am therefore refusing your request for information under Regulations 12(4)(e) and 12(3) of the Environmental Information Regulations 2004. You have the right under R.11 of the legislation to make representations to the Council if it appears that the Regulations have not been adhered to. To do so, please contact [Wirral Borough Council request email] where it will be allocated for review.

If you are dissatisfied with this response to your review, you have the right to complain to the Information Commissioner. The address is the
Information Commissioner’s Office,
Wycliffe House,
Water Lane,
Wilmslow,
Cheshire SK9 5AF
www.ico.gov.uk

Yours Sincerely
Jane Corrin
Information and Central Services Manager
Wirral Council

From: Alan Rundle [mailto:[FOI #248600 email]]
Sent: 16 January 2015 11:13
To: InfoMgr, FinDMT
Subject: FOI 861322 - Alan Rundle - Biodiversity damage to the Wirral Way, long distance foothpath -due 13.2.15

Dear Wirral Metropolitan Borough Council,

The use of dumper trucks to spread an aggregate concrete mix along five, 400 metre long, stretches of public footpath, on the Wirral Way, is unacceptable to many local residents.
Apparently, £131,000 of public health funding has been allocated to be spent on the Widening and resurfacing scheme.

The habitats of frogs, newts and dragonflies are being damaged.

Many members of the "public concerned" (local residents of all ages) wish to see the biodiversity along the Wirral Way enriched, not reduced.

Please supply copies of ALL emails, faxes and letters from or to Council officer Mary Worrall that relate to the Wirral Way Widening and Resurfacing Scheme.

Yours faithfully,

Alan Rundle

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Dear Wirral Metropolitan Borough Council,

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

I am writing to request an internal review of Wirral Metropolitan Borough Council's handling of my FOI request 'Biodiversity damage to the Wirral Way, LONG DISTANCE PUBLIC FOOTPATH.'.

You state that "I am therefore refusing your request for
information under Regulations of the
Environmental Information Regulations 2004".

I note that your response fails to draw my attention to the
requirements of the 'Convention on Access to Information, Public
Participation in Decision-Making and Access to Justice in
Environmental Matters' (the Aarhus Convention).

Why did you not inform me of my rights to Access to Information
under the Aarhus Convention?

The United Kingdom is a Party to the Aarhus Convention an local
authorities are obliged to follow the requirements of the Aarhus
Convention.

The UK has a dualistic legal system, in terms of environmental law.
UK (Domestic) environmental legislation is required to meet the
standards
of International Law (the Aarhus Convention).

The request for information is most definitely IN THE PUBLIC
INTEREST. I am NOT requesting ANY private emails or correspondence.

I expect Wirral Metropolitan Borough Council to provide the
information requested.

Yours faithfully,

Alan Rundle

InfoMgr, FinDMT, Wirral Metropolitan Borough Council

Good Afternoon

 

Thank you for your recent request for the review of the Council’s response
to your enquiry, which was processed in accordance with the Environmental
Information Regulations 2004 (EIRs). This review will assess whether the
Council’s reply to your enquiry adhered to this legislation.

 

Regarding the issues you have raised regarding ‘the requirements of the
'Convention on Access to Information, Public Participation in
Decision-Making and Access to Justice in Environmental Matters' (the
Aarhus Convention)’, please see the background information below published
by the Information Commissioner’s Office regarding the EIRs.

 

[1]https://ico.org.uk/for-organisations/gui...

 

The Regulations are derived from European law. They implement the European
Council Directive 2003/4/CE on public access to environmental information
(the EC Directive) in the UK. The principle behind the law is that giving
the public access to environmental information will encourage greater
awareness of issues that affect the environment. Greater awareness helps
increase public participation in decision-making; it makes public bodies
more accountable and transparent and it builds public confidence and trust
in them.

 

The source of the EC Directive is an international agreement called the
‘Convention on Access to Information, Public Participation in
Decision-Making and Access to Justice in Environmental Matters’. It was
adopted in Aarhus, Denmark on 25 June 1998 and is known as ‘the Aarhus
Convention’. Part of the Aarhus Convention says what its signatories must
do to provide access to environmental information. The European Union and
the United Kingdom have signed the Convention.

 

By processing your request in line with the EIRs, the Council feels that
it has fulfilled the requirements of the Aarhus Convention.

 

In conducting this review, I have made reference to the published guidance
on EIR Regulation 12(4)(e), which is available on the Information
Commissioner’s website at the following link:

 

[2]https://ico.org.uk/media/for-organisatio...

 

The Council can confirm that, in accordance with R.3(2)(a), recorded
information is held which meets the parameters set in your enquiry.
Correspondence has been produced which has stayed within the public body.
R.12(4)(e) is therefore relevant.

 

Regarding the exception employed by the Authority, the guidance states
that

 

42. Although a wide range of internal information will be caught by the
exception, public interest arguments should be focussed on the protection
of internal deliberation and decision making processes.

 

In the Council’s response of 13^th February it was stated

 

The public interest factors for disclosure include the necessary
opportunity for the authority to be accountable for their work to the
public and how it utilises the public purse.  When involved in the
decision making process, however, it is important that public authority
officers are allowed an opportunity for the free and frank exchange of
ideas.  This is to ensure that all options are considered prior to any
formal publication or consultation. The public interest factors for
withholding this information are to protect this process.

 

[…]

 

If these internal communications were to be released, officers may
understandably be reluctant to fully engage in future conversations as
each aspect could be open to public examination. The result of this is
that the discussion may not explore all possible options or give due
consideration to pertinent issues.

 

The Council therefore did follow the guidance, and based its decision on
the public interest factors for the release of the information with those
factors in favour of withholding it. The public interest test was
exercised fully, and there is therefore no requirement to overturn the
original decision.

 

Elements of your request were also refused under R.12(3) as external
communications received from members of the public were classified as the
personal information of those individuals. As this is an absolute
exception, it is not subject to the public interest test. It is the
opinion of the reviewing officer that this interpretation was correct, and
that the release of these records to yourself as a third party would not
constitute the fair and lawful processing of this information.

 

Should you be dissatisfied with the outcome of this internal review, you
have the right to complain to the Information Commissioner, who can be
reached via their website at www.ico.org.uk.

 

Kind regards,

 

Sent on behalf of

 

Tracy O'Hare

Information Management

Transformation and Resources

Wirral Council

 

This information supplied to you is copyrighted and continues to be
protected by the Copyright, Designs and Patents Act 1988. You are free to
use it for your own purposes, including any non commercial research you
are doing and for the purposes of news reporting. Any other reuse, for
example commercial publication, would require our specific permission, may
involve licensing and the application of a charge.

 

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References

Visible links
1. https://ico.org.uk/for-organisations/gui...
2. https://ico.org.uk/media/for-organisatio...