Draft Minute of meeting in Dingwall seeking agreement around access to Rua Reidh Lighthouse

Response to this request is long overdue. By law, under all circumstances, Highland Council should have responded by now (details). You can complain by requesting an internal review.

Dear Highland Council,

Malcolm Macleod, Head of Planning and Environment has told me that two Council staff members met a trustee of the Rua Reidh accomodation blocks in Dingwall on 30 March 2017.

Mr MacLeod tells me that draft minutes of that meeting have been produced. I presume that the staff members also had with them briefing notes for the meeting and that they made notes of the meeting and produced reports etc after the meeting in addition to the minute of the meeting so that other staff are able to understand the position post meeting. I also presume the Council has internal paperwork discussing this meeting its outcome and its future consequences.

From the information you have please let me have the information contained within the draft minutes produced from that meeting and also the council staff's notes of the meeting and the council's internal notes and paperwork which consider that meeting.

If you do not understand this request please offer to me your help and assistance to enable me to gain the information I seek, which is your duty under freedom of information legislation.

Yours faithfully,

Guy Kerry

Guy Kerry left an annotation ()

The Council's head of planning and environment tells me in his response to complaints that this meeting was held. Yet no note of it has been included in any FOI response I have recieved from the council. The community does not know what the council is attempting or what public rights the council is attempting to (secretly?) negotiate away by these apparent attempts to placate the trustess of the lighthouse accomodation blocks who have been waging an aggressive campaign against any one who approaches this national landmark and tourist trap in apparent defiance of access legislation and the public right of passage along the road to the light which it is the duty of the council to assert and protect.

Highland Council

Case Ref: HC0226-2761  

Dear Guy Kerry, 

We acknowledge receipt of your request for information under the
FOI legislation received on 12/12/2017.

Subject: 

Planning Information

Request Detail:

Dear Highland Council,

Malcolm Macleod, Head of Planning and Environment has told me that two
Council staff members met a trustee of the Rua Reidh accomodation blocks
in Dingwall on 30 March 2017.

Mr MacLeod tells me that draft minutes of that meeting have been produced.
I presume that the staff members also had with them briefing notes for the
meeting and that they made notes of the meeting and produced reports etc
after the meeting in addition to the minute of the meeting so that other
staff are able to understand the position post meeting. I also presume the
Council has internal paperwork discussing this meeting its outcome and its
future consequences.

From the information you have please let me have the information contained
within the draft minutes produced from that meeting and also the council
staff's notes of the meeting and the council's internal notes and
paperwork which consider that meeting.

If you do not understand this request please offer to me your help and
assistance to enable me to gain the information I seek, which is your duty
under freedom of information legislation.

Yours faithfully,

Guy Kerry

The Highland Council will endeavour to respond within the legislative time
scale of 20 working days from date of receipt unless further clarification
of your request is required.

Further information on response times can be found at:
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Yours Sincerely,

The Highland Council

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eil am post-d seo na phàirt de chunnradh sam bith mura h-eil sin air
innse.

Listening * Open * Valuing * Improving * Supporting * Partnering * Delivering
Èisteachd * Fosgailte * Luach * Leasachadh * Taic * Com-pàirteachas *
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Dear Highland Council,
Please review your decision not to respond to this FOI request of mine within the stipulated time.

The law is clear that you must reply promptly and at the most may take no longer than 20 days to reply.
It is becoming the habit of Highland Council to break the law in this regard. I now have multiple examples of the Council deciding to ignore the FOI legislation by ignoring my requests. The Information Commissioner has found against the council in this regard on a number of previous occassions when you have failed properly to follow the law when dealing with my requests.

Yours faithfully,

Guy Kerry

Freedom of Information, Highland Council

Dear Mr Kerry,
 
Request for Information under Environmental Information (Scotland)
Regulations 2004
 
I refer to your request for information on 12 December 2017. You requested
the following information:-
 
Malcolm Macleod, Head of Planning and Environment has told me that two
Council staff members met a trustee of the Rua Reidh accommodation blocks
in Dingwall on 30 March 2017. Mr MacLeod tells me that draft minutes of
that meeting have been produced. I presume that the staff members also had
with them briefing notes for the meeting and that they made notes of the
meeting and produced reports etc after the meeting in addition to the
minute of the meeting so that other staff are able to understand the
position post meeting. I also presume the Council has internal paperwork
discussing this meeting its outcome and its future consequences. From the
information you have please let me have the information contained within
the draft minutes produced from that meeting and also the council staff's
notes of the meeting and the council's internal notes and paperwork which
consider that meeting.
 
The information you have requested falls within the definition of
Environmental Information as defined by Regulation 2 of the Environmental
Information (Scotland) Regulations 2004 (EIRs) and is exempt under Section
39(2) of the Freedom of Information (Scotland) Act 2002 (FOISA). The
Council is, therefore, required to respond to you under the terms of the
EIRs rather than FOISA.
 
A meeting was held on 30 March 2017 involving Philip Waite (Access
Officer), Iain Moncrieff (Roads Operations Manager) and the lighthouse
owner and a colleague who accompanied her, resulting in a draft minute.
Comments/additions were made to the draft minute by the lighthouse
owner.   The minutes, following changes by the lighthouse owner, were
never agreed by all parties and so were never finalised.  The Council did
not accept the amendments made by the lighthouse owner.  The Council,
therefore, holds two versions of this minute neither of which are agreed
by all of the parties involved. One version is the version drafted by the
Council.  The other contains the comments and changes requested by the
lighthouse owner.
 
The Council has considered your request for a copy of this minute and
considers it excepted under regulation 10 (4) (d) of the EIR’s as the
minute is an unfinished document.  The Council considers attendees at the
meeting have not agreed to the content of the minute as being a true and
correct reflection of what was discussed at the meeting and therefore the
document remains unfinished.  To publish the document would lead to
misinformation and confusion about what was agreed by the parties.  The
Council continues to believe that it is in the public interest to work
with all parties to achieve compromise in relation to the access issues. 
Although there may be public interest in knowing what was discussed at the
meeting, the Council believes that the publication of minutes which are
not agreed could lead to further disagreement and entrenchment and that
this is not in the public interest.
 
The Council also considers the release of the information is excepted
under Regulation 11 (2) of the EIR’s - Personal Data.  The Council
considers the amendments suggested to the minute to be the personal
thoughts and opinions of the lighthouse owner and that releasing this
information without permission will breach principle 1 the Data Protection
Act 1998.
 
In relation to any information held on the outcomes from the meeting I can
confirm the following:-
 
•       Phil Waite (Access Officer), Iain Moncrieff (Roads Operations
Manager) and Robbie Bain (Ward Manager) attended a subsequent meeting with
Gairloch Community Council. This was not minuted by the Council nor
have        the Council received any minute.
•       A discussion between the Access Officer and the Council Solicitor
was in the form of a verbal report.
•       Further discussions between Iain Moncrieff (Roads Operations
Manager), Robbie Bain (Ward Manager) and Philip Waite (Access Officer) do
not have any notes.
 
I note that you have today requested that the Council carries out a review
of our failure to respond to your request on time.  I apologise for the
delay in providing this response.  This response, therefore, represents
the Council’s compliance with Regulation 16(5) of the EIRs.
 
If you remain dissatisfied with any aspects of my response regarding the
provision of recorded information, you have the right to request that the
Scottish Information Commissioner takes up an appeal on your behalf.  Her
contact details are:
 
Scottish Information Commissioner,
Kinburn Castle,
Doubledykes Road,
St Andrews, Fife
KY16 9DS
 
Telephone: 01334 464610
Fax: 01334 464611
e-mail: [1][email address]
 
Your request should contain details of the aspects of the Council’s
response with which you are dissatisfied and should be made within 6
months of receipt of this review response.  If you are
subsequently dissatisfied with the outcome of your appeal to the
Commissioner you then have the right of appeal to the Court of Session
regarding a point of law.
Yours sincerely,
Miles Watters
Miles Watters | Freedom of Information & Data Protection Manager |
Chief Executive's Office | The Highland Council | Glenurquhart Road |
Inverness IV3 5NX |
Tel. 01463 702029 | Fax 01463 702830 |
[2]www.highland.gov.uk | [3]@HighlandCouncil
 
 

show quoted sections

Guy Kerry left an annotation ()

I have appealed this response to the Scottish Information Commissioner:
I explain the correspondence then go on:

" ... their first response has been late and the response has been used also as their response to my requirement to review their decision not to reply within the time limits. My understanding is that they have thus engineered a situation whereby I cannot ask them to review the information supplied but must apply direct to the Information Commissioner for a decision. That effectively engineers considerable delay in obtaining information which I have a right to see.
The refusal to let me have the information contained within the draft minutes is said to be based upon section 10(4)(d) of EIR - that subsection says that information is excepted if "the request relates to material which is still in the course of completion, to unfinished documents or to incomplete data"
I do not believe that this section has relevance. I have requested the information contained within the draft minutes which the Council tells me have been produced. The draft minutes are thus information which is held by the Council. I have right to such information unless there exists an exception.
The Council claims that I asked for a ' ..copy of the minutes' of that meeting. I did no such thing: I carefully asked for the information which is contained within the draft minutes of that meeting. They claim an exception based on there never being an agreed final text of the meeting, but that is not information I have requested.
In any case the draft minutes, which we know were produced and are held by the Council, do not fit within their claimed exception of section 10(4)(d)
The meeting to which the draft minutes refer was held on 30 March 2017 - 11 months ago. The Council produced a record of that meeting (which they and I have referred to as draft minutes).
The Council note of the meeting (the draft minute) is not ' in the course of completion'. That document - the draft note of the meeting- was complete when it was sent out for comments. The 'incomplete' exception cannot bite.
Nor can it be argued that the draft minute is 'unfinished' since it was complete when distributed and since no effort is on-going to incorporate any other comments within that draft. Comments were sought, not to complete the draft but to produce a final, agreed minute. I have not asked for or referred to any final version of a minute.
Nor can it be argued that the draft minute is incomplete data. It is in itself complete. Comments have been received by the Council, they have been considered and dismissed. It remains a complete draft no matter what comments have been made which seek to produce another, different, document.
Since the draft minute does not fit the exceptions contained within section 10(4)(d) which the Council relies upon, then there can be no public interest consideration, which is a requirement of section 10(1)(b), if exceptions are to be relied upon. The Council cannot under 10(4)(d) rely upon public interest as a stand alone reason for refusing to give to me the information held within that completed draft minute.
The council's consideration that the release of this information might cause ' ..further disagreement and entrenchment ...' is not a consideration they are entitled to use as a reason to withhold this information.
Given the above I believe I am entitled to the information contained within the completed, finished draft minute which does not contain incomplete data and I request the Commissioner considers the points I have made and comes to a formal decision on the matter.
The council has told me that this meeting was with a trustee of the pension fund which owns the lighthouse. A trustee represents an incorporeal legal entity - the fund. The meeting was not therefore with an individual as 'owner' (one does not exist!) but with the trust fund embodied in a representative - a trustee - of the incorporeal trust fund which owns the lighthouse.
It is in truth the trust fund which has made comments on the note of the meeting produced by the Council; it is not an individual as owner since no such person exists nor did such a person attend this meeting. No person acting as an individual has the right to make comments within the note of that meeting on the trust's position or ownership. Any person pretending to be the individual owner of the lighthouse is perpetrating a con.
The Council has been obsessive in avoiding, at its convenience, the fact that the lighthouse is not owned by individual persons. It does not understand the importance of the owner being a trust fund- it refuses even to establish, for itself, the ownership of the lighthouse. The differences between personal ownership and ownership by a legal entity are not subtle but the Council cannot see the difference when, as here, it is convenient to forget it!
Comments made by the trustee, which have been rejected by the Council, cannot be 'personal data'. The comments represent the view of the trust fund as owner of the light and not an individual. They are not 'personal' data.
It would also be improper for the Council to hold a meeting with an individual who is both a trustee of the fund which owns the lighthouse and who also has a separate and personal interest in the outcome of the meeting. Personal consideration do not automatically coincide with a trustee's responsibilities and bias is an obvious outcome. I presume the Council did not allow its officers to formally hold a meeting with such a compromised person since the Council would then also be seen to be biased. I must presume therefore that the person who they met at that Dingwall meeting was truly representing the trust fund which owns the light and not someone who also had personal interests in this matter. Comments from that person were thus comments of the trust and not personal.
In any case, even if one were to accept the comments were made by an individual in her/his own right and with personal interests in the outcome of the meeting they cannot be said to be excepted because of data protection considerations.
It is worldwide common practice, even within Highland Council, to publish draft minutes of meetings - that is notes of meetings before they have been agreed - and within those drafts to name individuals who have spoken at the meeting or supplied information (data even) whether or not their views were personal in nature. At meetings held to agree such minutes it is noted who objected to the draft minutes and what were those objections, whether or not they were personal in nature. If the Council is to rely upon and succeed in its argument that such comments on draft minutes are protected under data protection legislation then all such published draft minutes and published comments would become illegal. That would make a nonsense of the procedures used to record meetings which are universally accepted worldwide.
Furthermore if anything within the information held by the Council is truly data protected by legislation then they are entitled to redact those parts (only) which would otherwise compromise data protection legislation. Instead they have chosen a wholesale refusal to impart any information whatsoever. That cannot be correct.
I request the Commissioner considers all these points and comes to a decision.
Finally, it is now becoming routine for the Council to put forward the line that no information is held on important matters but that it is all held in the heads of those employees who have discussed matters between themselves or others outside the Council. This effectively denies me my rights to information.
We have here a further list of important matters which are said not to have been recorded and which are therefore beyond my right to obtain that information. It is difficult to believe and I do not in fact believe that a large and well established public authority such as Highland Council could possibly allow such lax administration. I think that we are having the wool pulled over our eyes in order to allow the council not to reveal information it holds and I request that the Commissioner formally establishes that what is said not to have been recorded really does not exist within the records of Highland Council.
Should the Commissioner find that these important matters are not being recorded I request that information is passed to the Scottish Public Services Ombudsman, because it would undoubtedly amount to maladministration.
Please also consider if Highland Council is in breach of the formal codes of practice covering FOI and record keeping.

Yours sincerely

Guy Kerry

Guy Kerry left an annotation ()

25 April2018. The Information Commissioners office has told me that Highland Council have now been made to see the light and agree this document is a finished document and not one which may be witheld. In fact there are three drafts of the minute. The Commissioner will chase if this isnt provided by tomorrow afternoon. If they do supply the information then no decision will be taken by the Commissioner.

Miles Watters, Highland Council

3 Attachments

Dear Mr Kerry,

Following discussions with the Office of the Scottish Information
Commissioner, we have agreed that the attached versions of the draft
minutes you requested are all of the information which is held by the
Council and which falls within the scope of your request.

 

We have also agreed that, given the passage of time since the meeting took
place, that we no longer wish to rely on exception 10(4)(d) of the
Environmental Information (Scotland) Regulations 2004, in relation to
these draft minutes.

 

However, you should be aware that the minutes and actions noted within
them, were never agreed between the two parties.  Therefore, they should
not be relied upon as evidence of any agreement being reached.

 

I hope that this is now to your satisfaction.

 

Yours sincerely,

 

Miles Watters

 

Miles Watters | Freedom of Information & Data Protection Manager |

Chief Executive's Office | The Highland Council | Glenurquhart Road |
Inverness IV3 5NX |

Tel. 01463 702029 | [1]www.highland.gov.uk |

 

 

 

 

Unless related to the business of The Highland Council, the views or
opinions expressed within this e-mail are those of the sender and do not
necessarily reflect those of The Highland Council, or associated bodies,
nor does this e-mail form part of any contract unless so stated.
Mura h-eil na beachdan a tha air an cur an cèill sa phost-d seo a'
buntainn ri gnothachas Chomhairle na Gàidhealtachd, 's ann leis an neach
fhèin a chuir air falbh e a tha iad, is chan eil iad an-còmhnaidh a'
riochdachadh beachdan na Comhairle, no buidhnean buntainneach, agus chan
eil am post-d seo na phàirt de chunnradh sam bith mura h-eil sin air
innse.

Listening * Open * Valuing * Improving * Supporting * Partnering * Delivering
Èisteachd * Fosgailte * Luach * Leasachadh * Taic * Com-pàirteachas *
Lìbhrigeadh

References

Visible links
1. http://www.highland.gov.uk/

Dear Miles Watters,

Thank you for finally releasing this information. May I first assure you that it is not my intention to use these documents to show any evidence of any agreement being reached. Quite the contrary.

From the information you hold I should like your advice and assistance to better understand what has been sent to me and why it appears to be different to that which Highland Council admitted to in its review response prior to my appeal to the Information Commissioner. This will avoid my coming to the wrong conclusions about your review reply and the documents you have sent.

Your review response said there were two draft minutes yet you have sent to me three , how can it be that only two documents dealing with a meeting in the previous March existed on 16 January 2018 and that three exist by 26 April 2018?

At what stage were the drafts annotated 'The minutes have not been agreed and are therefore DRAFTS ONLY. As such they are exempt from FOI Requests until such times as they are agreed by all parties.' And when were they highlighted in yellow? Can you assure me that the originals were so annotated and that it is the practice of Highland Council to anotate all draft minutes with such concerns about FOI requests? Were these annotations and highlights in fact added after my request?

Have these incorrect annotations now been removed from these documents so that the delay I have suffered cannot happen to other requesters and that staff are not misled in future?

Your original review response stated 'The Council also considers the release of the information is excepted
under Regulation 11 (2) of the EIR’s - Personal Data. The Council considers the amendments suggested to the minute to be the personal thoughts and opinions of the lighthouse owner and that releasing this
information without permission will breach principle 1 the Data Protection Act 1998.' The documents do not identify which party made suggested amendments to the documents (I presume they are the wording in blue). Your reply does not withdraw the council's claimed exception for data protection purposes. Can you help me please to understand which parts of the any of the documents are considered by the council to be personal data? Since the council has not withdrawn its claimed exception and that the documents contain no redactions, has the council made invisible changes to the documents to safeguard the personal data you claim exception for? If so could you please let me know where those changes have been hidden or, alternatively, can it be said that the claimed 'personal data' exception relied upon by the Council was falsely made and will you now formally withdraw your claimed exception to help me understand what has been done.

The Council has, in different documents relating to this meeting, referred to Tracy MacLachlan as a trustee to the pension trust which owns the lighthouse and, alternatively, as the actual owner of the lighthouse. The minutes do not identify what caspacity Tracy was fulfilling at this meeting or in what capacity the council officials at the meeting dealt with her. Can you please clarify. (To be absolutely clear: It is a matter of public record that Tracy MacLachlan does not own the accomodation blocks at the lighthouse. She is merely a tenant of the Pension Trust which does own the accomodation blocks and she is one of the trustees of that trust and a beneficiary of that trust. She cannot appear at or be dealt with as both owner of the light (which she is not) and trustee and/or tenant of that trust. There are very clear conflicts withTracy's fiduciary responsibilities as a trustee in play here - she is using her trusteeship to her personal and commercial benefit - which the council and Tracy continue to ignore. The council should know better).

You say that the minutes as provided are all the documents the Council holds ' ... within the scope ...' of my request. Can you please confirm that the council officials who attended the meeting did so without ' ... briefing notes for the meeting ...' and they did not make ' notes of the meeting and produced reports etc after the meeting' and that the council has no ' internal paperwork discussing this meeting its outcome and its future consequences.' all of which were within my original request and would appear to be within scope but which you have not made mention of at any stage. Could you please clarify your statement so that I can understand why the minutes alone are considered 'within scope' and my other requests are ignored or, without explanation, are not considered within scope.

Yours sincerely,

Guy Kerry

Guy Kerry left an annotation ()

Although this now gives to me the supposed draft minute it does not answer all my original request nor does it withdraw their claim to an exception for data protection. I dont know whether these docs have been secretly altered to hide 'data' or not. It is very suspect that they have arrived annotated about keeping them out of FOI requests. I doubt that is an original annotation, since the council emplyees who drafted the minute would not then be concerned with FOI. I also do not believe the Information Commissioner has agreed that this is all the council holds within the scope of my request. Something here does not gel, hence I have asked for their help to understand what has gone on and so that I am not left to guess what happened to data protection concerns.

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