Dear  Mr Brace,

 

I refer to your email of 4 March, which contained the following request
for information:-

 

Dear Wirral Metropolitan Borough Council,

 

I would like to request an electronic copy of the consultation responses
on the Special Cumulative Impact Policy for part of Birkenhead which
closed on the 3rd March 2017.  This was a consultation run by Wirral
Council's Licensing Department (alcohol).

 

Specifically I would like to request copies of all consultation responses
received before the deadline which include responses from the following
individuals/organisations:

 

Rt Hon Frank Field, MP

Councillor Phil Davies, Birkenhead and Tranmere Ward Councillor Jean
Stapleton, Birkenhead and Tranmere Ward Councillor Pat Cleary, Birkenhead
and Tranmere Ward Councillor Moira McLaughlin, Rock Ferry Ward Councillor
George Davies, Claughton Ward Councillor Steve Foulkes, Claughton Ward
Councillor Brian Kenny, Bidston and St James Ward Councillor Angela
Davies, Prenton Ward Environmental Health and Trading Standards (Wirral
Council) Public Health (Wirral Council) Birkenhead Town Host Wirral Ways
to Recovery Birkenhead YMCA Citizens Advice Wirral Stronger Communities
Initiative various businesses various residents

 

I consider that your request for information should be dealt with under
the Environmental Information Regulations 2004, in that the information
you have requested is environmental information under the Environmental
Information Regulations 2004, (“EIR”). Environmental information is
defined in Regulation 2 of the EIR as any information in written, visual,
aural, electronic or any other material form and includes measures
(including administrative measures), such as policies, legislation, plans
,programmes, environmental agreements ,and activities affecting or likely
to affect the elements and factors referred to in Regulation 2(a) and (b)
as well as measures or activities designed to protect those elements (
Regulation 2 (c)). I consider that a policy affecting a specific part of
Birkenhead comes within the definition of environmental information.

 

I enclose the following consultation responses, (which have been provided
by consent):-

1.    Merseyside Police

2.    The Director for Health and Wellbeing

 

I consider that the exception contained Regulation 12 (5)(f) of the EIR,
applies to the remaining Consultation Responses. Regulation 12 (5) (f)
provides that a public authority may refuse to disclose information to the
extent that its disclosure would adversely affect the interests of the
person who provided the information where that person:-

(i)            was not under, and could not have been under, any legal
obligation to supply it to that or any other public authority;

(ii)          did not supply it in circumstances such that that or any
other public authority is entitled apart from these regulations to
disclose it ; and

(iii)         has not consented to its disclosure

 

I have had regard to the Information Commissioner’s Guidance “Interests of
the person who provided the information to the public authority
(regulation 12 (5) (f). Paragraph 13 of the guidance gives examples of
where information has been voluntarily provided including

·         Information gathered in consultations and surveys where there
was no obligation on people to respond to them.

The purpose of the exception is to encourage the voluntary flow of
information as indicated in the Aarhus Convention.

 

This exception is subject to the public interest test.There is a public
interest in disclosure of environmental information to enable the public
to understand the way in which a public authority has reached a decision.
However the parties submitting the responses had a reasonable expectation
that they would remain confidential and I consider that there would be a
detrimental effect on the future supply of voluntary information if the
remaining responses were to be disclosed to a member of the public. I
consider that the Council owes a duty of confidence to the those who
responded to the consultation and who have not consented to their
responses being disclosed. I have also had regard to that this is a live
issue which will be considered by Council in due course.I consider that
the public interest in maintaining the exception therefore outweighs the
public interest in disclosure of the requested information.

 

I also consider that the exception contained in Regulation 13 of the EIR
also applies to part of the requested information in that it includes
personal data of which you are not the data subject and that the first
condition set out in Regulation 13 (2) applies, that disclosure of the
information would contravene any of the data protection principles. 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 Data Protection Act 1998 is met.  I
consider that none of the conditions in Schedule 2 would be met, the most
significant condition being that contained in Schedule 2, condition 6 (1)
which is in the following terms:-

 

“The processing is necessary for the purposes of legitimate interests
pursued by the data controller or by the third party or parties to whom
the data are disclosed, except where the processing is unwarranted in any
particular case by reason of prejudice to the rights and freedoms or
legitimate interests of the data subject”

 

I refer to the case of Goldsmith International Business School v The
Information Commissioner and The Home Office [2014[ UKUT 0563 (AAC) which
is a decision of the Upper Tribunal and binding on the lower courts. Judge
Wikely gave a detailed analysis of the test of “reasonable necessity” when
considering condition 6 (1)  and endorsed eight propositions concerning
this condition, derived from case law.

 

Paragraphs  35,36,37 and 38  of the decision provide the first four
propositions:-

 

“Proposition 1: Condition 6 (1) of Schedule 2 to the DPA  (Data Protection
Act) requires three questions to be asked:-

(i)            Is the data controller or the third party or parties to
whom the data are disclosed pursuing a legitimate interest or interests ?

(ii)          Is the processing involved necessary for the purposes of
those interests?

(iii)         Is the processing unwarranted in this case by reason of
prejudice to the rights and freedoms or legitimate interests of the data
subject.?”

 

“Proposition 2: The test of “necessity” under stage (ii) must be met
before the balancing test under stage (iii) is applied”

 

“Proposition 3 :”Necessity” carries its ordinary English meaning, being
more than desirable but less than indispensable or absolute necessity.”

 

“Proposition 4 : Accordingly the test is one of “reasonable necessity,
reflecting the European jurisprudence on proportionality, although this
may not add much to the ordinary English meaning of the term.”

 

I consider that you as a third party are pursuing a legitimate interest.
However I do not consider that the processing of personal data ie the
release of the names of individuals contained in the Consultation
Responses is reasonably necessary for the purposes of that  interest. I
consider that your legitimate interest has been met by being provided with
the above consultation responses I refer to paragraph 58 of the decision
where Judge Wikely states “ While it is proper to recognise the public
interest in the disclosure of official information as being relevant under
condition 6, we think it important not to lose sight of the principal
object of the DPA, which is to protect personal data and allow it to be
processed only in defined circumstances. The first part of condition 6 can
only be satisfied where the disclosure is ‘necessary’ for the purposes
identified.”

This part of Regulation 13 is not subject to the public interest test.

 

 

Conclusion

I  am therefore refusing part of  your request for information under
Regulation 14 of the EIR, relying on the exceptions contained in
Regulation 12 (5) (f) and  Regulation 13 (2) (a) of the EIR .You have the
right to make representations under Regulation 11 of the 2004 Regulations,
which should be sent to Jane Corrin, Records and Information Manager, Town
Hall, Brighton Street, Wallasey, CH44 8ED, email:
[1][Wirral Borough Council request email]. If you are dissatisfied with this
response to your request for information, you have the right to complain
to the Information Commissioner, but would normally be expected to make
representations before complaining to the Commissioner. The address is

The Information Commissioner’s Office,

Wycliffe House,

Water Lane,

Wilmslow,

Cheshire SK9 5AF

Tel -0303 123 113

[2]https://ico.org.uk/global/contact-us/

 

Regards,

 

Rosemary,

Rosemary Lyon,

Solicitor,

Business Services,

Law and Governance

Town Hall,

Brighton Street

Wallasey

Wirral

CH44 8ED

 

 

[3]LGC Awards15_Winner_MIP

 

 

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References

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1. mailto:[Wirral Borough Council request email]
2. https://ico.org.uk/global/contact-us/