Dear Thanet District Council,

Please release all electronic communications between Thanet District Council and Avia Solutions.

Yours faithfully,

Jonathan Allison

Pauline McGandy, Thanet District Council

 
 
 
 
 
Ref No:93586
Subject:Communications - Avia Solutions
 
 
 
 
Dear Mr Allison
 
Thank you for your correspondence of 04/10/2016 where you requested the
release of all electronic communications between Thanet District Council
and Avia Solutions.
 
Your request is being dealt with under the terms of the Freedom of
Information Act 2000 and will be answered within 20 working days. 
 
If you have any queries about this request, please direct them to
[1][email address] quoting the reference number above.
 
Yours sincerely
 
 
 
 
 
Information Governance and Equality Team
 

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Tim Howes, Thanet District Council

Dear Mr Allison,

 

I refer to your recent request for information under the Environmental
Information Regulations.

 

You requested: Please release all electronic communications between Thanet
District Council and Avia Solutions.

 

Regulation 12(4)(c) allows a public authority to refuse requests that are
‘formulated in too general a manner’. This includes questions like yours
where the request for information is not specific enough to allow us to
identify what information has been asked for.

 

Rather than refuse a request at this stage I wanted to better understand
the information (rather than the documents) that you are seeking. So I
would be very grateful if you could define your request to describe, in
simple terms, what actual information you are seeking, for example is it
about how Avia became to be appointed etc.?

 

I look forward to hearing from you in due course.

 

Yours Faithfully

 

Tim

 

Timothy Howes, Solicitor

Director of Corporate Governance and Monitoring Officer

Thanet District Council

PA: Lynda Howard 01843 577071

[mobile number]

Email: [email address]

 

 

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Dear Tim Howes,

I apologise that my request appeared vague. Please allow me to clarify.

I would like you to provide all emails exchanged between TDC and Avia. These can easily be obtained by your system administrator interrogating your mail exchange server in the first instance, and will come within both the time and costs limits applicable to FOI requests.

Yours sincerely,

Jonathan Allison

Tim Howes, Thanet District Council

Dear Mr Allison,

You appear to have misunderstood my email. I need to know what information you are seeking rather than what documents you are seeking.

Yours sincerely

Tim Howes

Timothy Howes, Solicitor
Director of Corporate Governance and Monitoring Officer
Thanet District Council
PA: Lynda Howard 01843 577071
[mobile number]
Email: [email address]

show quoted sections

Dear Tim Howes,

I would like to request any information held by TDC which takes the form of email communications between TDC and Avia, specifically with reference to Manston Airport and a report into its viability.

Yours sincerely,

Jonathan Allison

Tim Howes, Thanet District Council

 
 
 
 
Ref No: 93586/3652900
Subject:        Communications - Avia Solutions
 
Dear Mr Allison
 
Thank you for your communication received on 04/10/2016  where you
requested copies of emails from the Council to AviaSolutions.
 
I am refusing your request under Regulation 12(4)(c) of the Environmental
Information Regulations on the ground that your request has been expressed
in too general a manner and the council has provided advice and assistance
to you in accordance with Regulation 9.
 
As has already been explained, the law provides a right of access to
information held by public bodies. It doesn’t confer any explicit right to
copies of documents. I wrote to you by email on the 18^th October 2016
requesting you provide more particulars in relation to your information
request. I also provided advice on how those particulars might be
provided.This response I provided was in accordance with part III of the
EIR Code of Practice.
 
Given the fact that the request was formulated in a general manner the
council can neither confirm nor deny that it holds the information,
because we have been unable to clarify what information you want.
 
In applying the public interest test to this request, the public interest
in maintain the Regulation 12(4)(c) exemption outweighs the public
interest in disclosing the wrong information.
 
If you are dissatisfied with the handling of your request, you have the
right to ask for an internal review. Internal review requests should be
submitted within two months of the date of receipt of the response to your
original letter and should be addressed to: Information Request Assessor,
Thanet District Council, P O Box 9 Cecil Street, Margate Kent CT9 1XZ, or
send an email to [email address].
 
Please remember to quote the reference number above in any future
communications.
 
Yours sincerely,
 
 
 
Information Assessor
 

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Dear Tim Howes,

Let me be quite clear that my request was made under the Freedom of Information Act (2000), as confirmed by Pauline McGandy.

I draw your attention to s.8 of the Freedom of Information Act:
(1) In this Act any reference to a “request for information” is a reference to such a request which—
(a) is in writing,
(b) states the name of the applicant and an address for correspondence, and
(c) describes the information requested

The Act quite clearly states that a valid request for information need only "describe the information requested", which is what I have clearly done. May I also remind you that under s.77 of said Act, it is an offence (liable to a fine not exceeding Level 5 on the standard scale) for any person who "alters, defaces, blocks, erases, destroys or conceals any record held by the public authority, with the intention of preventing the disclosure by that authority of all, or any part, of the information to the communication of which the applicant would have been entitled".

I suggest that you are indeed deliberately concealing information the Authority clearly holds, with the intention of preventing its disclosure. Please be advised that, following your brief Internal Review, I will be forwarding my complaint to the Information Commissioner's Office.

Yours sincerely,

Jonathan Allison

Tim Howes, Thanet District Council

Dear Jonathan,

I am happy to clarify that it is the type of information requested which determines the information regime which applies. In this case, it relates to land use which is within the environmental information regulations.

However similar rules apply and like the Freedom of Information Act, you need to describe the information (rather than the documents) that you are seeking. In your particular case you have made a request for all emails rather than describing the information you seek (which may or may not be in an email).

Can I once again suggest that you consider specifically what information you are seeking so that I can undertake a search and identify and provide the information that you seek.

Best Regards

Tim Howes

Timothy Howes, Solicitor
Director of Corporate Governance and Monitoring Officer
Thanet District Council
PA: Lynda Howard 01843 577071
[mobile number]
Email: [email address]

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Dear Tim Howes,

I draw your attention to a previous FOI request made to TDC in 2012, reference number 46190, made by Louise Oldfield, which can be found online: https://www.whatdotheyknow.com/request/a... In this particular request, the Information Commissioner's Office made a number of recommendations to TDC with regard to malpractice. Ms. Oldfield was provided with the information she requested, following a drawn out process.

You will note that the initial request quite clearly states:
"I'd like all communication between Thanet District Council Officials, including Councillors and Optomen Television between February 1st 2012 and October 29th 2012."

This request is not at all dissimilar to my own, and does not clarify specifically what information from those communications she wants (or expects to find), only that that the communications be disclosed. This is a justifiable request for information, as per FOI 2000. TDC has quite clearly set a precedent here which you now wish to renege upon.

I await your response.

Yours sincerely,

Jonathan Allison

Tim Howes, Thanet District Council

Dear Mr Allison,

The previous request was under the Freedom of Information Act and not the Environmental Information Regulations.

Clearly you have in mind some information you wish to find. Can you be clear what that is? I have suggested how you might address your request to information.

Best Regards

Tim Howes

Timothy Howes, Solicitor
Director of Corporate Governance and Monitoring Officer
Thanet District Council
PA: Lynda Howard 01843 577071
[mobile number]
Email: [email address]

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Dear Tim Howes,

Clearly, we have already discussed that this current request comes under the Freedom of Information Act.

As such, I would like to request an Internal Review of this FOI request. I politely request that neither yourself or Madeline Homer play a part in this review.

Yours sincerely,

Jonathan Allison

TDC FOI, Thanet District Council

 

Ref No: 93586 / 3652900

Subject: Communications - Avia Solutions

 

 

 

Dear Mr Allison

 

Thank you for your communication of 10/11/2016 requesting an internal
review of the response you were provided for the above Freedom of
Information request.

 

This has been passed to an officer for review and they will reply directly
in due course.

 

If you have any queries about this internal review please direct them to
[1][email address] quoting the reference number above.

 

Yours sincerely

 

 

 

 

 

Information Governance and Equality Team

 

Thanet District Council

PO Box 9, Cecil Street

Margate, Kent CT9 1XZ

 

Tel: 01843 577000

Fax: 01843 290906

 

This email and any files transmitted with it may contain privileged or
confidential information. It is intended solely for the person to whom it
is addressed. If you are not the intended recipient please destroy or
delete the content of this message immediately and notify the sender by
reply email. Opinions, conclusions and other information in this message
that does not relate to the official business of Thanet District Council
shall be understood as neither given nor endorsed by the council.

 

 

 

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Jonathan Allison

Dear Thanet District Council,

I don't appear to have received a response to my request for an internal review, especially not within a timely fashion.

Please rectify immediately.

Yours faithfully,

Jonathan Allison

TDC FOI, Thanet District Council

Thank you for submitting a request for information.  Your email has been
forwarded to the Information Governance and Equalities Team.

We endeavour to respond to all Freedom of Information and Environmental
Information Regulation requests within 20 working days, and Subject Access
Requests within 40 days but if we think the request requires extra time we
will contact you to let you know.

Kind regards

Information Governance and Equalities team.

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Jonathan Allison left an annotation ()

As TDC have not provided a useful response in any meaningful time period, I have forwarded this request to the ICO for resolution.

Calum Liddle, Thanet District Council

Dear Mr Allison,

Thank you for your request for an internal review, dated 10 November 2016.

Having undertaken a review of the decision, dated 01 November 2016, I am now in a position to respond.

TDC moves to uphold the decision. The request has been submitted in a too general a manner: no Member or Officer’s work was mentioned, no context nor contemporaneous event was cited, nor was there any timeframe. Your request, it is maintained, is too vague, unclear and non-specific. Efforts afforded to you to help clarify the request, to refine or pronounce a scope, came to no avail. TDC, in line with regulatory guidance, cannot assume to know what is in the mind of the requester, nor can we move to make one interpretation over another.

The Commissioner recognises that if a request is formulated in too general a manner, the authority won’t be able to confirm or deny whether it holds the requested information, because it can’t identify what the requester wants. The request was treated under the provisions of the Environmental Information Regulations 2004 as information if held would, bearing in mind the industry in which Avia Solutions operates, be environmental by-and-large. This is an assumption, indeed, but a fair and pragmatic one. In any case, I’d stress, TDC moves to neither confirm nor deny whether the information sought is held.

This brings an end to the internal review and no further response will be provided. You may, however, now appeal to the Information Commissioner’s Office for a Decision Notice: Wycliffe House, Water Lane, Wilmslow SK9 5AF.

Best,

Calum Liddle
Information Governance and Equality Manager
(Deputy Senior Information Risk Officer and Data Protection Officer)
Thanet District Council

Tel: 01843 577 631
Fax: 01843 290 906
Email: [email address]

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Jonathan Allison left an annotation ()

Complaint to the ICO was successful - Full response due soon.

"The Commissioner can confirm that your information request of 4 October 2016 was wrongly and badly handled by the Council. As you correctly noted to Mr Howes, your request did identify the information which you were requesting and even if the scope of the request had been worded too widely, you subsequently and helpfully refined your request in your email to the Council of 23 October 2016.

At the time that you submitted your request, the Council did not have in place effective and efficient FOI request handling processes and procedures. Mr Howes’ understanding of the FOIA was not correct and he failed to recognise and appropriately process your refined request of 23 October 2016. The protracted correspondence which resulted caused serious and unacceptable delay to the correct processing of your request."

Andrew McCulloch left an annotation ()

Have TDC now replied following the ICO intervention?

Calum Liddle, Thanet District Council

1 Attachment

Dear Mr Allison,

 

Thank you for your request for information, dated 04 October 2016

 

I move to, personally, apologise on behalf of Thanet District Council for
the delay in relaying a response to you by now.

 

I have recently taken over the helm here in Information Governance at
Thanet District Council. Evidently, I was unaware of the correspondence
bundle in entirety and, it follows, was unaware of the clarification you
had, in actual fact, provided on 23 October 2016. I am working on a number
of legacy cases, such as your own which pre-date my arrival, and these
cases should, in no uncertain terms, have been handled far better in the
first instance.

 

As you may be aware we, like other local governments, are short on
resource and stretched but, of course, this affords mere further
mitigation and does not in any way excuse the need for a forthright
apology in failing to meet a statutory deadline.

 

I have been working over the weekend, from home in my own time, on this
case in order to expedite a response from TDC and maintain the management
of new requests and other information governance demands. The work on your
case is still ongoing.

 

I will have a substantive response with you by close of play on 27 July
2017.

 

If you have any questions in the meantime then, please, by all means do
get in touch. Happy to chat, of course.

 

Best,

 

 

 

Calum Liddle

Information Governance and Equality Manager

(Deputy Senior Information Risk Officer and Data Protection Officer)

Thanet District Council

 

Tel: 01843 577 631

Fax: 01843 290 906

Email: [1][email address]

 

[2]cid:image001.png@01D27171.2C5951E0

 

 

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Jonathan Allison

Dear Calum,

Thank you for your candid and honest response. Your efforts do not go unappreciated.

I look forward to your full response later this week.

Yours sincerely,

Jonathan Allison

TDC FOISupport, Thanet District Council

Dear Mr Allison,

 

Thank you for your request dated 04 October 2016, in which you asked:

 

“Please release all electronic communications between Thanet District
Council and Avia Solutions.”

 

On 23 October 2017 you provided further clarification, and the request
read:

 

“I would like to request any information held by TDC which takes the form
of email communications between TDC and Avia, specifically with reference
to Manston Airport and a report into its viability.”

 

First, TDC moves to apologise as the clarification, for whatever reason,
was not held here by Thanet District Council at the time of the
Information Governance Manager’s handling of your request. It was only
through inspection of ‘What Do They Know’ that the clarification could be
actioned and this Council could move to comply with its obligations under
the provisions of the Freedom of Information Act 2000. To this extent, now
in receipt of a valid request for information for the purposes of the FOI
regime, is a response of first instance now being provided.

 

I can confirm that for the purposes of section 1(1)(a) TDC holds such
emails.

 

We have taken the opportunity, at length, to study the correspondence
between TDC and Avia with reference to Manston Airport and the
commissioned report concerning the viability of the Airport as an
economically viable entity.

 

TDC, we assure you, is all-the-time becoming an ever more so transparent
Council. On this occasion, however, we are moving to refuse the
information sought, that which is held, on the basis of a number of
exemptions. Some exemptions apply to the information in part, others apply
to the bundle in entirety.

 

We have outlined the reliance in full, here:

 

Personal Data

 

The bundle includes the names of mid-level managers here at Thanet
District Council. Section 40 of FOIA 2000 provides an exemption from the
right to know where the information requested is personal data protected
by the Data Protection Act 1998. The section 40(2) exemption, third party
personal data, is designed to address the tension between public access to
official information and the need to protect personal information.

 

Bearing in mind that disclosure under the freedom of information regime
constitutes a disclosure to the world-at-large then, it follows, that the
names of mid-level Officers are being refused. The attachment of such
Officer names to the project for inspection by all in perpetuity appears,
it seems, unfair. And so, to this extent, the names are being refused.

 

Commercial interests

 

Section 43(2) has been applied to emails where the information constitutes
contractual negotiations, including pricing and order variations, because
it contains details of this Council’s pricing tactics and strategy. This,
inherently, is commercially sensitive. The balance of the public interest
was found to be in favour of withholding the information given that the
public interest is best served in not releasing any details on
negotiations where, such as in this case, to do so would expose the
Council to prejudice when seeking, say, future commissions of a similar
nature. Ultimately the Council strives to achieve the most competitive
price to the benefit of the rate-payer at large. And it is this very
competition we, as the custodians of the public purse, cannot afford to
see eroded.

 

While we have considered all the benefits transparency would bring to
assisting in our wider responsibilities concerning accountability and,
indeed, our own mission to be a council that is trusted, such arguments,
in this instance, do not merit the likely financial harm to the Council
and, ultimately, the rate-payer at large, should this commercially
sensitive disclosure be made.

 

Effective conduct of public affairs

 

Section 36(2)(c) states that information is exempt if in the reasonable
opinion of the qualified person its disclosure would otherwise prejudice,
or would likely otherwise prejudice, the effective conduct of public
affairs. The Commissioner accepts that a public authority, such as in this
instance, needs a safe space from external interference and distraction to
undertake some of its key core functions. A function of this Council is to
investigate economic regeneration including the novel, and even the
controversial, and to that extent we, as all across the local government
environment, engage with third party subject matter experts, consultants
and researchers to that extent.

 

Disclosure would, in the view of the qualified person at TDC, inhibit
future engagement; the candour of Officers and, indeed, the willingness of
private industry in conversing with the Council would be impacted, it is
argued. TDC is entitled to a free space in order to engage, freely and
frankly, with those third parties relied upon to assist in the exercise of
public functions. It is the view of TDC that the overriding public
interest rests in protecting that function space, that which is required
to, say, obtain an objective report which remains candid and otherwise not
swayed in any manner by the mere prospect of disclosure of related
correspondence. The correspondence in this instance, we’d stress, details
nothing untoward but it did form part of the commissioning process of the
report in question, its scope, pricing, and post-publication handling,
among other things. The need to secure a safe space in this regard is
all-the-more important when one considers that the viability of Manston
Airport remains a ‘live’ issue. The process and handling, in other words,
is not to be disrupted, hampered or in any other way coerced. TDC likely
needs to correspond in the future with similar parties and must retain
some confidence in its communications to secure fullness and frankness so
to ensure the effective conduct of public affairs. TDC sees no public
interest in disclosure bearing in mind that the commissioned report and
the instruction of the commissioning, including the scope, are published
and placed in the public domain. We trust this makes sense.

 

If you are unhappy with the way your enquiry has been dealt with, you may
ask for an internal review by submitting a request within one month of the
date of this response.   Your request should be addressed to the
Information Governance Manager, Thanet District Council, PO Box 9, Cecil
Street, Margate, CT9 1XZ or by emailing [1][email address]

 

If you are still dissatisfied after an internal review, you may appeal to
the Information Commissioner, Wycliffe House, Water Lane, Wilmslow SK9
5AF.

 

Kind regards,

 

 

 

 

Information Governance Officer

Thanet District Council

Margate

CT9 1XZ

01843 577620

 

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Jonathan Allison left an annotation ()

ICO have been notified about TDC's further refusal to provide this information.

Dear Thanet District Council,

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

I am writing to request an internal review of Thanet District Council's handling of my FOI request 'Communication with Avia'.

Firstly may I state that I continue to be disappointed that Thanet District Council feel they can swerve their legal responsibilities, and continue to find reasons not to disclose information which belongs in the public domain? You state that TDC is "becoming an ever more so transparent Council", but I believe that to be nowhere near the truth.

You acknowledge that Thanet District Council does hold the information requested.

In support of this request, please see my arguments below.

PERSONAL DATA

You state that the bundle contains the names of mid-level officers at TDC, and that disclosure of the emails constitutes a disclosure to the world-at-large, and as such have refused to disclose the names.

In the 'MoD v. Information Commissioner and Rob Evans' (http://www.informationtribunal.gov.uk/DB...), the Tribunal ruled that the MoD could only withhold names of staff if they were particularly junior. With this in mind, and given that the bundle contains mid-level officers' names, I would expect that the exemption in this case is not valid, and the names should be disclosed.

Where a major financial decision is made which is not backed up by full Council, and where it is suspected that officers are involved in a purchase, the results of which are used to pre-judge decisions on the Local Plan, it is not acceptable that officers' names are withheld.

That said, there is nothing stopping the Council from releasing the bundle with names redacted. This, however, flies in the face of a transparent Council, particularly when it is becoming more evident that the Council is trying to defend poor decision-making by officers. The fact that the information contains names is not sufficient reason to justify withholding the entire data.

COMMERCIAL INTERESTS

You state that Section 43(2) of FOI2000 applies because the emails contain details of the Council's pricing tactics and strategy, and that therefore, the emails are commercially sensitive.

It follows therefore, that for this service to have been procured, it should have gone through the Council's procurement cycle (https://www.thanet.gov.uk/publications/p...) which requires development of a business case as well as a transparent tendering process. This should have included the advertisement of the prospective tender (as was done with the second tender for an indemnity partner for a CPO of Manston Airport). I trust that you can evidence that the Council correctly followed its own procurement policy when spending £50,000 of ratepayer's money?

In order to apply s.43(2), TDC must have satisfied itself that the disclosure of these emails would, or would be likely, to prejudice itself or AviaSolutions. As you have not specified the level of likelihood, nor provided clear evidence to the contrary, I suggest that 'would be likely' applies.

In legal terms, the word ‘prejudice’ is commonly understood to mean harm. To say that disclosure would or would be likely to prejudice the interests specified in the exemption implies that it would (or would be likely to) harm those interests. As the price of the contract (£50,000) and the two parties to this contract (TDC and AviaSolutions) are both in the public domain, I suggest that disclosure cannot prejudice the commercial interests of either party, any more than has already been done by TDC itself. If anything, full disclosure may actually increase the Council's buying power, where the disclosure suggests that the Council had negotiated a better deal than originally anticipated through the correct procurement procedure.

I draw your attention to the case of Cranfield University v the Information Commissioner EA/2011/0146, (5 March 2012), in which the complainant made two requests to the university, for information which included the pricing of its Academic Provider Contract with the Ministry of Defence (MoD). In summary, Cranfield argued that the information would allow competitors to work out its pricing mechanism, similar to what TDC is attempting to do.

The Tribunal accepted that the information was potentially commercially sensitive, but only if the contract was retendered. As it was unlikely the contract would be retendered, the Tribunal concluded that the information was not commercially sensitive.

In order for TDC to use the defence that disclosure would disclose the Council's pricing strategy and tactics, it would need to be possible for the same scenario (the purchase of a report into the viability of aviation at Manston Airport) to be repeated. As the Council has used the results of the flawed Avia report to publicly announce that it no longer supports aviation on Manston Airport, and as the Council has unsuccessfully attempted to use the Avia report to allow planning permission for change of use from aviation on the Manston Airport site (the Planning Inspectorate found in favour of rejecting planning permission), it does not seem probably that the Council will attempt to purchase another similar report, and it is fairly unlikely that the contract will be retendered. Therefore it follows that the information is not commercially sensitive.

EFFECTIVE CONDUCT OF PUBLIC AFFAIRS

In order to claim an exemption under s.36(2)(c), the local authority needs the reasonable, justified opinion of the qualified person. That qualified person must be:
(i) a Minister of the Crown,
(ii) the public authority, if authorised by a Minister of the Crown, or
(iii) an officer or employee of the public authority, if authorised by the Minister of the Crown.

You have not identified the qualified person, nor demonstrated that the authority or any of its employees are authorised by a Minister of the Crown to act as the qualified person, therefore this exemption is not valid.

Even if this could be demonstrated, it is likely that the Monitoring Officer or the Chief Executive (namely Timothy Howes and Madeline Homer) would assume this role. I have made it clear in previous correspondence that I do not want either of these individuals involved in this FOI request or subsequent internal reviews, as to do so would prejudice the outcome of the request in the Council’s favour.

With regard to the chilling effect, I disagree with your opinion that the subject is still “live”. Thanet District Council has made it quite clear that it has abandoned the prospect of aviation at Manston Airport, with its dismissal of the only credible investor into an aviation future there. The Council removed its objection to granting planning permission for change of use on the Manston Airport site, demonstrating that the Council only sees a future for housing on it. The viability of aviation at Manston Airport therefore remains live for everyone but the Council itself.

The Council has made a decision on Manston Airport – the debate is no longer live for TDC, and the safe space for deliberation is therefore no longer required.

I look forward to your response.

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

Yours faithfully,

Jonathan Allison

TDC FOI, Thanet District Council

Thank you for your request for official information and/or personal data.
This request is currently being reviewed under the terms of the Freedom of
Information Act 2000, the Environmental Information Regulations 2004
and/or the subject access provisions of the Data Protection Act 1998.

 

We will provide a substantive response within any timely statutory
deadline.

 

In some circumstances a fee may be payable; if this is the case we will
let you know before proceeding to comply with your request.

  

Kind regards,

 

 

 

Information Governance Officer

Thanet District Council

Margate

CT9 1XZ

01843 577620

 

TDC FOISupport, Thanet District Council

Dear Mr Allison,

Thank you for your communication of 16 August 2017 requesting an internal review of the response you were provided for the above Freedom of Information request.

This has been passed to an officer for review and they will reply directly in due course.

If you have any queries about this internal review please direct them to [email address] quoting the reference number above.

Yours sincerely

Information Governance and Equality Team

Calum Liddle, Thanet District Council

Dear Mr Allison,

Thank you for your request for internal review dated 16 August 2017.

I am moving to uphold the original decision of 27 July 2017 and, what's more, respond to your arguments, in turn:

[1] I am satisfied that the mid-level officers would have no reasonable expectation of disclosure of their involvement to the world at large in this instance. I see no public interest, nor am I aware of any legitimate reason, to name those individuals concerned.

[2] This remains a 'live' issue and so TDC commercial strategy remains relevant. Commercial and pricing tactics are not, in any case, unique to the Council's engagement with this particular third party.

I move, also, to confirm that all tendering and procurement laws were complied with, as ever.

[3] The qualified person was, in this instance, the Chief Executive, namely, Ms Madeline Homer. The FOI request was handled objectively, personally, by myself and it was I who sought the qualified opinion. The request remained applicant blind throughout; indeed, the request was presented in an anonymised manner to the CEO.

I again stress that this issue, to the contrary, remains very much live.

This brings an end to the internal review response. Should you remain dissatisfied you now have a right of appeal to the Information Commissioner, Wycliffe House, Water Lane, Wilmslow SK9 5AF.

Best,

Calum Liddle
Information Governance and Equality Manager
(Data Protection Officer and Deputy Senior Information Risk Officer)
Thanet District Council

Tel: 01843 577 631
Fax: 01843 290 906
Email: [email address]

TDC FOISupport, Thanet District Council

2 Attachments

Date:               9th February 2018
Our ref:           FOI 93586/2017
ICO ref:           FS50700489
Ask for:           Information Governance
Direct line:       01843 57620
Direct e-mail:  [1]TDC [email address]

 

 

Dear Mr Allison,

 

Re: Environmental Information Regulations 2004

ICO Case reference number FS50700489  (TDC REF: FOI 93586/2017)

Complainant: Mr Jonathan Allison

 

Following the ICO informing the Council of your complaint to the ICO in
relation to your request dated 29^th October 2016, the Council’s responses
to your request (and request for internal review) dated 27^th July 2017
(and 29^th August 2017) have been reconsidered and revised.

 

 

SUMMARY

The Council confirm that the Environmental Information Regulations 2004
(EIR) apply to your request and will disclose all the information it holds
relating to your request subject to redactions of:

- third party personal data;

- personal data of Council employees (but not senior employees); and

- confidential commercial information protecting a legitimate economic
interest

 

 

REDACTIONS

 

Personal Data relating to Contractors and Stakeholders employees

Regulation 13(2)(a)(i) EIR

The Council relies on the exemption in Regulation 13(2)(a)(i) EIR to
redact personal data consisting of the names, addresses and contact
details of staff of contractors and staff of stakeholders. To disclose
this information would breach the first data protection principle to
process personal data lawfully and fairly.

 

Staff of the contractor, Avia and staff of stakeholder organisations did
not give their consent to the Council to disclose their personal data.
They would, therefore, have a reasonable expectation that their personal
data would not be disclosed into the public domain.

 

To disclose this information may subject these people to public intrusion.

 

There is public interest in ensuring that all the people involved in the
production of Council reports are credible. This is best demonstrated by
the fact that the contractor company and stakeholder organisations are
credible. In addition the Council had oversight of the contractors and
stakeholders.

 

There is no overwhelming legitimate public interest in disclosing the
names, addresses and contact details of the staff of contractors and
stakeholders. To disclose this information would breach the first data
protection principle to process personal data lawfully and fairly.

 

 

Personal data relating to junior employees of the Council

Regulation 13(2)(a)(i) EIR

The Council relies on the exemption in Regulation 13(2)(a)(i) EIR to
redact the names, email addresses and contact details of junior staff of
the Council. To disclose this information would breach the first data
protection principle to process personal data lawfully and fairly.

 

Junior council employees have not given their consent to the Council to
disclose their personal data. They do not carry out public facing roles so
have a reasonable expectation that their personal data will not be
disclosed into the public domain.

 

Disclosing their personal data into the public domain may subject them to
intrusion or, by those members of the public who hold grievances against
the Council, harassment.

 

There is public interest in holding accountable the staff in the Council
who were involved in the Manston Airport Report but this is best served by
not redacting the details of those Council staff who ultimately hold
responsibility for its production, that is senior staff. To this end the
personal data of all senior staff mentioned in the disclosed information
has not been redacted.

 

There is no overwhelming public interest in disclosing the personal data
of junior staff who do not carry out a public facing role. To disclose
this information would breach the first data protection principle to
process personal data lawfully and fairly.

 

 

Confidential commercial information protecting a legitimate economic
interest

Regulation 12(5)(e) EIR

The Council relies on Regulation 12(5)(e) EIR to redact confidential
commercial information protecting a legitimate economic interest namely
the bargaining positions of the contractor, Avia, during the procurement
by the Council of their services.

 

General information regarding the Council’s contract with Avia including
the value and duration is published quarterly on the Council’s website.
There is however, some information about the details of the contract
discussed by the Council and Avia which would not otherwise be publicly
available. The nature of these exchanges were confidential negotiations
during a procurement. Both Avia and the Council believed these exchanges
to be confidential and conducted themselves accordingly. Custom and
practice indicates that negotiations before entering into a contract are
confidential. 

 

The Council has consulted with Avia on this matter. Avia confirm that
there is information concerning their negotiations with the Council that
if released into the public domain would harm some competitive advantages
they have over their competitors and would harm future negotiations with
other clients. The specialist nature of Avia’s aviation consulting
practice is such that they are competing with few other consultancies for
the same contracts. Bargaining positions that enable them to competitively
price and reduce the prices on their bids gives Avia a competitive edge.
Disclosure of  these bargaining positions into the public domain will more
likely than not enable their competitors to adopt (and maybe improve upon)
the same or similar bargaining positions thereby harming the advantages
these bargaining positions give Avia.

 

The Council is concerned that it may suffer harm if it discloses the
information because specialist contractors similar to Avia may not be
attracted to bid for work. The Council, however, acknowledges this is not
a pivotal factor in its decision to redact the commercial information.

 

There is public interest in the Council being accountable and transparent.
The Council believes that in spite of the redaction of confidential
commercial information the information disclosed enables the Council to be
held to account for the procurement of and oversight of Avia’s services.

 

This revision of the Council’s position enables you to see all the
information the Council holds subject to the redactions which the Council
believes does not obscure or detract from the substance of the
information. 

 

Yours sincerely,

 

 

 

Information Governance Team

Thanet District Council

Cecil Street

Margate

Kent

CT9 1XZ

 

Direct Dial: 01843 57620

 

TDC: [2][email address]

 

[3]LGA Logo

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confidential information. It is intended solely for the person to whom it
is addressed. If you are not the intended recipient please destroy or
delete the content of this message immediately and notify the sender by
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that does not relate to the official business of Thanet District Council
shall be understood as neither given nor endorsed by the council.

 

 

 

 

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