Disposal of Part or All of Apex Leisure Park, Highbridge

Mike Newman made this Freedom of Information request to Sedgemoor District Council

This request has been closed to new correspondence. Contact us if you think it should be reopened.

The request was successful.

Dear Sedgemoor District Council,

I would be grateful if you would consider the following request under the provisions of the Freedom of Information Act.

Please could you:

1. Provide any correspondence, minutes or other records relating to a proposed sale of any part of the Apex Leisure Park, Highbridge (including the associated BMX Track Area) during the 2014/15 and 2015/16 municipal years. In recognising the commercial sensitivity of this, I do not require the names of any other parties, which I would be happy for you to redact.

2. Detail any proposed plan to dispose of any part of the Apex Leisure Park, Highbridge (including the associated BMX Track Area) which have been included in planned savings for the 2014/15 or 2015/16 financial years.

Yours faithfully,

Mike Newman

Response Team, Sedgemoor District Council

 
Dear Mr Newman
 
Freedom of Information Request
 
Thank you for your request for information about Apex Leisure Park. Your
request was received on 29^th March 2015 and I am dealing with it under
the terms of the Freedom of Information Act 2000.
 
In some circumstances a fee may be payable and if that is the case, I will
let you know. A fees notice will be issued to you, and you will be
required to pay before we will proceed to deal with your request.
 
If you have any queries about this email please contact me.
 
 
Yours sincerely
 
Amanda Gibbs,
Freedom of Information Officer
 
 
 

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Dear Amanda

I note that the period in which you are required to respond to this request by statute has now passed.

I would be grateful for an update on the status of the response, and to receive the information as soon as possible.

Yours sincerely,

Mike Newman

Amanda Gibbs, Sedgemoor District Council

Thank you for your email. I apologise for the delay in my response.

Unfortunately, it is necessary for me to extend the time period in which I provide my response in accordance with Section 17(2) of the Freedom of Information Act where no decision has yet been made as to the application of an exemption. I must consider the public interest test to aid my decision. I am also consulting with other parties.

I will endeavour to complete my considerations as soon as possible and provide a formal response to you. I hope to have this response as soon as I can and at least within a further twenty days.

Thank you

Amanda Gibbs
Records Manager

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Dear Amanda,

Thank you for your response indicating that this request will be further delayed. While I recognise the provision in S17(2) of the act allows you to specify an estimate of the additional time required to apply the public interest test, I am rather surprised to see this doubles the statutory deadline for a response to forty days from the date of the request.

As I understand it this matter is due to come before the Executive of Sedgemoor District Council shortly, and that the Executive have undertaken to ensure that the matter is discussed publicly rather than as an Exempt Item under the Local Government Act.

On this basis I'm sure you will understand my concern that any discussion of a plan in an open meeting of the executive is incompatible with a refusal to disclose appropriately redacted information. In this circumstance, I believe I would be forgiven for assuming that this further delay was in fact an attempt to push the response beyond the date of the Executive Meeting.

I would welcome your assurance that this process will be completed before that time, with members of the public able to judge the information received or declined alongside other matters regarding this important issue for Burnham and Highbridge.

Yours sincerely,

Mike Newman

Amanda Gibbs, Sedgemoor District Council


Amanda Gibbs is out of the office until 1st May 2015.

If you have a Freedom of Information request, please send it to [Sedgemoor District Council request email]

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________________________________________________________________________

Dear Amanda Gibbs,

I note you have not responded to my previous email on this matter.

Could you please confirm whether the additional time requested (20 days) constituted working days or calendar days, and therefore by which date I can expect a response to this request?

I remain concerned about the motivation for this delay.

Yours faithfully,

Mike Newman

Amanda Gibbs, Sedgemoor District Council

Good morning,
Thank you for your email. I am in receipt of relevant information and am now writing my formal response. I anticipate that this will be with you before or on Tuesday 19th May.
I do apologise for the delay in my formal response.
Thank you

Amanda Gibbs
Records Manager

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Amanda Gibbs, Sedgemoor District Council

1 Attachment

Thank you for your request. You have requested:

 

1. …any correspondence, minutes or other records relating to a proposed
sale of any part of the Apex Leisure Park, Highbridge (including the
associated BMX Track Area) during the 2014/15 and 2015/16 municipal years.
In recognising the commercial sensitivity of this, I do not require the
names of any other parties, which I would be happy for you to redact.

 

2. Detail any proposed plan to dispose of any part of the Apex Leisure
Park, Highbridge (including the associated BMX Track Area) which have been
included in planned savings for the 2014/15 or 2015/16 financial years.

 

I have treated your request under the Environmental Information
Regulations (EIR) which state:

 

“Environmental information is defined in Regulation 2 of the Regulations
as including "environmental information" any information on –

 

(a) 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;

 

(b) …

 

(c) 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 (a) and (b) as well as measures or
activities

designed to protect those elements;

 

I consider that your request falls within paragraph 2(c) above because I
am of the view that the information requested relates to an investigation
into the state of land and therefore comprises information on measures
affecting or likely to affect the elements and factors referred to in
2(a).

 

There is no information held regarding a proposed sale of any part of Apex
Park although there is information regarding a proposed lease and I am
disclosing information relating to a proposed lease.

 

I am refusing to disclose the Executive Report of 1^st April 2015 and I
have considered Regulation 12(5) (f) of the EIR where:

 

‘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 put 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’

 

The report contains financial and commercial information which the person
providing the information was not under any obligation to supply. In
refusing to disclose this information I have to consider the public
interest in refusing to disclose and I believe that although it is a
matter of public interest that a Local Authority is open and transparent
third parties would not want to enter into discussions with that authority
if their financial consideration were made public at early stages of such
discussions when they were under no legal obligation to provide such
information. I have contacted the third party involved to seek their views
on disclosure and they have not consented to such disclosure, I have
therefore taken their view on board when reaching my decision. My
decision is that the public interest in maintaining the exemption
outweighs the public interest in disclosing the information.

 

I am also relying on Regulation 12 (5)(d) where:

 

‘For the purposes of paragraph (1)(a) a public authority may refuse to
disclose information to the extent that its disclosure would adversely
affect –

 

(d) the confidentiality of the proceedings of that or any other public
authority where such confidentiality is provided by law; ‘

 

The matter regarding a proposed lease of part of Apex Park has still not
been determined and confidentiality of the Executive Report is provided by
law, namely Paragraph 3 of Schedule 12A to the Local Government Act 1972.

 

I have attached information regarding correspondence that may be disclosed
although I refuse to provide names and email addresses in accordance with
Regulation 12 (3) where the information requested includes personal data
of which the you are not the data subject. Disclosure of this personal
information would breach the principles of the Data Protection Act 1998.

 

I have included a copy of one of the minutes of meeting for The Friends of
Apex Park for your convenience although these minutes are all published
on-line and can be found at
[1]http://friendsofapexpark.webeden.co.uk/w...

 

If you are dissatisfied with the response provided, the Authority’s
procedure provides for you to make a complaint, which will be dealt with
through the Council’s normal complaints procedure.  Should you not then be
satisfied with the outcome you have a right of appeal to the Information
Commissioner. The Information Commissioner can be contacted at: The
Information Commissioner’s Office, Cambrian Buildings, Mount Stuart
Square, Cardiff, CF10 5FL.

 

Amanda Gibbs

Records Manager

 

 

 

Amanda Gibbs

Records Manager

Sedgemoor District Council

Bridgwater House

King Square

Bridgwater

Somerset

TA6 3AR

 

[2][email address]

0845 408 2540

 

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Dear Amanda Gibbs

Thank you for your response in part to my request for information, which you chose to treat under the EIR rather that the FOI act. I also note your refusal to disclose the report or minutes of the Executive Meeting.

I do not consider that the information supplied provides a complete and accurate picture of the correspondence received by the council on this matter, and I note that several items of correspondence referenced from Bourne Leisure (including their letter of 24th January 2014) have not been included despite other communication from them being present.

Furthermore, if Bourne Leisure is the third party concerned and they have consented to other items disclosed, then I am surprised that the Executive Report was not disclosed with financial information suitably redacted to protect commercial interests.

I do not think the Council has been wholly open and transparent in this matter, and therefore I am requesting an Internal Review of this request on the basis that:

1. It was considered under a different disclosure process, without any communication with me.
2. It fails to disclose items of correspondence, though similar items appear to be wholly present.
3. It fails to disclose a key report which relates to a matter of public interest.
4. It fails to fully answer the request I originally made,

I look forward to the outcome of the internal review, which I trust you will advise in due course.

Regards
Mike Newman

Yours sincerely,

Mike Newman

Amanda Gibbs, Sedgemoor District Council


Amanda Gibbs is out of the office until 21st May 2015.

If you have a Freedom of Information request, please send it to [Sedgemoor District Council request email]

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________________________________________________________________________

Amanda Gibbs, Sedgemoor District Council

Thank you for your email and request for an internal review. I have passed this to the Monitoring Officer to carry out the review and you should hear from her regarding this review.

Amanda Gibbs
Records Manager

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Melanie Wellman, Sedgemoor District Council

Dear Mr Newman

I write further to your request dated  19 May 2015  for a review of Mrs
Gibbs decision in relation to your Freedom of Information request.

I am in the process of carrying out my review and will endeavour to let
you have a response by the 16 June 2015.

In the meantime, please do not hesitate to contact me if you have any
queries.

Yours sincerely

Melanie Wellman

Group Manager (Legal) and Monitoring Officer

Sedgemoor District Council

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Melanie Wellman, Sedgemoor District Council

Dear Mr Newman

I write further to my e mail dated 3 June 2015. I have almost completed my
review but am awaiting some further information to enable me to finalise
my response. In the circumstances,   I require a small  extension of time
to enable me to complete my review. I anticipate being in a position to
let you have my response by 22 June 2015 at the very latest.

Apologies for any inconvenience caused.

Yours sincerely

Melanie Wellman

 

 

From: Melanie Wellman
Sent: 03 June 2015 16:31
To: '[FOI #260807 email]'
Subject: Review of response to Freedom of Information Request

 

Dear Mr Newman

I write further to your request dated  19 May 2015  for a review of Mrs
Gibbs decision in relation to your Freedom of Information request.

I am in the process of carrying out my review and will endeavour to let
you have a response by the 16 June 2015.

In the meantime, please do not hesitate to contact me if you have any
queries.

Yours sincerely

Melanie Wellman

Group Manager (Legal) and Monitoring Officer

Sedgemoor District Council

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Dear Melanie Wellman,

Thank you for your recent reply, advising me that a response to my request for an internal review would be available by 22nd June "at the very latest".

I note that this date has now passed with no response. I therefore intend to refer my request to the Information Commissioner's Office as I am concerned at the continued delays and missed deadlines I have encountered.

Yours sincerely,

Mike Newman

Melanie Wellman, Sedgemoor District Council

2 Attachments

Thank you for your e mail dated 19 May 2015 requesting an internal review
of the decision in  relation to your Freedom of Information request for
information in relation to Apex Park Leisure Park, Highbridge. I apologise
for the delay in my reply.

 

I note that your e mail questions the decision to treat the request under
the Environmental Information Regulations 2004 rather than the Freedom of
Information Act 2000. I also note that you do not consider that the
information supplied provides a complete and accurate picture of the
correspondence received by the Council and you consider that several
pieces of correspondence referenced from Bourne Leisure (including their
letter of 24 January 2014) have not been included. You also question why
the Committee report has not been disclosed with financial information
suitably redacted to protect commercial interests.  You also consider that
the response fails to fully answer the request you originally made.

 

I have taken all of these factors into account when conducting my review.

 

For the sake of clarity, your original request was for:-

 

 1. …any correspondence, minutes or other records relating to a proposed
sale of any part of the Apex Leisure Park, Highbridge (including the
associated BMX track area) during the 2014/15 and 2015/16 municipal
years.
 2. details of any proposed plan to dispose of any part of the Apex
Leisure Park, Highbridge (including the associated BMX track area)
which have been included in planned savings for the 2014/15 or 2015/16
financial years.

 

As you have been advised, the Council has no current proposals to dispose
of part of Apex park. However, there are proposals regarding a lease and
this is the information that has been disclosed to you. I note that you
raise concern that the Council’s response fails to fully answer the
request you originally made. However, In light of the fact that your
original request sought information regarding a proposed sale of Apex
Park, the Council could have advised you that no such information exists
and provided no further information to you. Instead, the Council has been
open and transparent and advised you that whilst there is no proposed
sale, there are proposals to enter into a lease on this site.

 

You have also raised concern regarding the Council’s decision to treat
your request as a request under the Environmental Information Regulations.
Having considered your concerns, I concur with the original decision that
your request should be dealt with under the Environmental Information
Regulations. This is because it meets the definition in Regulation 2 i.e
it relates to an investigation into the state of land and therefore
comprises information on measures affecting or likely to affect the
elements and factors referred to in 2(a).  It is for the Local Authority,
when receiving a request, to determine the appropriate legislation. I
concur that the Environmental Information Regulations was the correct
legislation to  apply in this particular case.

 

I can confirm that as well as the correspondence with which you have
already been supplied and the committee report of which you are aware, the
Council also holds  four further pieces of correspondence namely:-

 

 1. an e mail dated 22 December 2014 to Sedgemoor District Council 
(“SDC”)
 2. Letter from Bourne Leisure to SDC dated 12 May 2014
 3. Letter from SDC to Bourne Leisure dated 15^th April 2014
 4. Letter from Bourne Leisure to SDC dated 24 January 2014

 

I note that these documents were not previously disclosed to you. I
understand that this was because a trawl of the officers e mail account
did not identify this correspondence. The correspondence had been placed
on a separate file which was overlooked. This correspondence should have
either been provided to you or if they were to have been withheld, reasons
should have been given for their being withheld. In the circumstances, I
apologise on behalf of the Council for this omission.

 

I have considered whether this remaining correspondence and the Executive
report should be released to you and have concluded that subject to
commercially sensitive and legally privileged information being redacted,
these documents should be provided to you. I have reached this conclusion
because I consider that much of the information in the report is now in
the public domain. However, I am refusing to disclose the information that
has been redacted because I consider that the exception(s) under
regulation(s) 12(5) (f) of the Environmental Information Regulations apply
to it. I consider that disclosure of this commercially sensitive
information would adversely affect the interests of the person who provide
that information, as they were:-

 

(i)                  not under any legal obligation to supply it to the
Council,

(ii)                did not supply it in circumstances such that the
Council is entitled apart from these Regulations to disclose it; and

(iii)               have not consented to its disclosure

 

I have applied a public interest test in determining whether this
information should be released and in all the circumstances of the case, I
consider that the public interest in maintaining the exception outweighs
the public interest in disclosing the information. This is because third
parties would not wish to enter into negotiations with this Council  if
commercially sensitive information were to be made public at the early
stages of those discussions.

 

The report also contains legally privileged advice from the Council’s
lawyer which is exempt from disclosure under Regulation (5) (b) of the
Regulations.  It is important when making decisions that Members receive
confidential and candid advice from its advisors, particularly where there
are on-going negotiations. I am satisfied that there is a strong public
interest in maintaining the exception under Regulation 12 (5) (b) of the
Regulations as the inherent public interest in protecting the established
convention of legal professional privilege outweighs the public interest
in disclosing the information.

 

I have also redacted any personal information in accordance with
Regulation 12(3) which states that to the extent that the information
requested includes personal data of which you are not the data subject,
the personal data shall not be disclosed.  The  disclosure of this
personal information would breach the principles of the Data Protection
Act 1998.

 

In conclusion, I  have concluded that you should be provided with a copy
of the committee report and the correspondence not previously provided.
However, for the reasons outlined above, I have decided that this
information should be redacted as it contains commercially sensitive,
legally privileged and personal information

 

If you remain dissatisfied with the handling of your request or complaint,
you have a right to appeal to the Information Commissioner at :

 

The Information Commissioner’s Office, Cambrian Buildings, Mount Stuart
Square, Cardiff CF10 5FL

 

Website : [1]www.ico.gov.uk

 

There is no charge for making an appeal.

 

Yours sincerely

 

Melanie Wellman

Group Manager (Legal) and Monitoring Officer

 

 

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