EIR procedures and inappropriate charging

Paul Sargent made this Freedom of Information request to Chelmsford City Council

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

The request was refused by Chelmsford City Council.

Dear Chelmsford Borough Council,

Could CBC tell me why when the Information Commisioner's Office on 22nd July contacted CBC for a copy of an internal review which was specifically for my request CBC 1007 CBC sent a copy of some irrelevant information I was sent on 28th January 2011 . This had no information whatsoever about an internal review for CBC 1007 that was asked for. Incidentally as CBC knows no review of CBC 1007 was undertaken.
As CBC 1007 was being treated as an Environment Information Regulation request there should have been a procedure in place for an internal review by law.
Could you tell me what was (and is) this procedure in detail you had (and have) in place for an internal review of an Environment Information Regulation request.
Also why if any any procedure you had (and have) was in place was it not used in the case of CBC1007 as CBC was treating it as an EIR request
Also could you tell me why your CBC EIR webpage had a minimum charge of £80 for ANY EIR request at all which had to be paid in advance before CBC would deal with it.
This obviously being an illegal charge if material is viewed at council offices for instance.
To pre empt your reply that this was corrected I know it was because I was the one who got it corrected by contacting the CBC web team.
Would you also tell me how many people you have illegally charged this fee.

Yours faithfully,

Paul Sargent

Dear Chelmsford Borough Council,

Please acknowledge and reply. As you know a recent Decision Notice showed your legal department's total disregard and lack of knowledge of the Freedom of Information Act and DEFRA's guidelines.
Please do not continue to show the same disregard now unless you think the Infomation Commisioner's Decision Notices can be ignored.

Yours faithfully,

Paul Sargent

Dear Chelmsford Borough Council,

This is to remind you again that I have not even had an acknowledgement and you have until the 12th inst to do this and also reply if you intend to remain within the law.

Yours faithfully,

Paul Sargent

Dear Chelmsford Borough Council,

This is to remind you that today is the last day you have to
acknowledge and reply to my request which is a plain and straightforward meta request.
There is a probability that as you were not aware and did not
adhere to the Information Commisioner's guidelines in the past that
clicking on and reading the content of the link below might be of
assistance to you.
I am hoping this may prevent further waste of the Infomation
Commisioner's time.

http://www.ico.gov.uk/foikb/FOIPolicyMet...

Yours faithfully,

Paul Sargent

FOI Mailbox, Chelmsford City Council

Dear Mr. Sargent,

Thank you for your emails of 5th, 10th and 12th October 2011 and for
directing us to the request contained in your email of 17th September
2011.

I regret that the Council does not hold the information you request.

Yours faithfully
Legal and Democratic Services Manager
Corporate Services
Chelmsford Borough Council
www.chelmsford.gov.uk
Accredited with the IiP Gold Standard

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Dear Chelmsford borough council,

I have had no acknowledgement at all of this Freedom of Information request within the 20 days allowed by law and will now have to raise this with the Information Commissioner's office.
Somebody on your FOI mailbox department seems to have made a belated entry but is beyond my comprehension and has no relevance to the requests or the date involved.
They speak of no information held for a 17th September request when it was the 13th.
No need to reply as there is no point in continuing this until the Comissioner's findings are known
I have been informed by the Commissioner' office that I do not have to ask for an internal review because of no acknowledgement and this will be dealt with quite quickly.

Yours faithfully,

Paul Sargent

Dear Chelmsford Borough Council,
Would CBC conduct an internal review into the handling of this request. For future reference I have been asked to do this contrary to previous advice by the Commisioner's Office.

For clarification my initial requests still stand and I would like to know

Why I have not been given a proper acknowledgement as you do anybody else who makes a Freedom of Information request.
Why you have no information about procedures which you should have as a legal requirement of your council.
Why I did not get an internal review when the request was deemed to be one that you were legally obliged to review as you insisted it was an EIR request .
Why you have no information about the £80 advance charge that was demanded by your legal department (website page) for ANY Environment Information Regulation request at all until I got this demand removed from the webpage.
Why you have no information about who were charged for information they, quite probably, would have not needed to pay for at all if viewed at council offices.
Perhaps in this review you could tell me what charges were made whilst this demand for any advance payment was in place and what the requests were for.
If this needs to be a further request please let me know.

Yours faithfully,

Paul Sargent

Dear Chelmsford Borough Council,

Please be aware that you are asking someone other than the person who dealt with this on the 13th October to review the request.

Please open the link below.

For clarification the review is not for any email of the 17th September 2011 mentioned in your only response at all to date to this WDTK FOI request. It is quite plainly for the 14th September 2011 posting.
I would suggest that if my request was given a reference number as you do any other requester this ridiculous situation might not be wasting so much of everybody's time.

http://www.whatdotheyknow.com/request/ei...

Yours faithfully,

Paul Sargent

Dear CBC FOI Mailbox,

I shall now be sending this to the Information Commisioner's office as suggested by them should you fail to have given the results of your internal review within the 20 working days they told me to allow you.
As you have not given any CBC reference number to any of my requests and you seem to be getting your dates and requests mixed up then for clarification and removal of doubt please click on the link below. This may in some way help you realise that your only reply to this was for something totally different and a request that also had no reference number either.

http://www.whatdotheyknow.com/request/ei...

Yours faithfully,

Paul Sargent

FOI Mailbox, Chelmsford City Council

2 Attachments

Dear Mr Sargent,

 

On 22^nd May, following advice from the ICO, I sent you an email which
contained the Council’s disclosure in response to your original request of
14^th September 2011.

 

You have indicated in subsequent correspondence that you wish matters
initiated via WDTK to receive a reply via that website.  Below is a copy
of my email of 22^nd May, and attached are the documents I sent with it. 

 

Here is the text of the email of 22^nd May:

 

 

Dear Mr Sargent,

 

FS 50426059

COMPLAINT TO THE ICO OF A REQUEST ORIGINALLY MADE ON 14^TH SEPTEMBER 2011
RELATING TO THE COUNCIL’S PROCEDURES FOR DEALING WITH EIR REQUESTS

 

In February 2012 you made a complaint to the ICO about the way the Council
had dealt with requests you made on 14^th September 2011.  The text of
those requests is set out in detail later in this letter.

 

The ICO wrote to the Council asking for responses to several questions. 
As part of the response, the Council acknowledged to the ICO that the
Council could have provided significantly fuller and better responses to
your original requests for information, and provided the draft of a full
response to your original questions.

 

The ICO’s office has suggested, in an effort to reach resolution of this
matter, that the Council should provide you with that full answer.  The
remainder of this letter is the answer the Council believes should, on
review of the case, have been given to you in the first place.  Included
with this letter are two documents which are referred to in the answers
below.  The ICO has been copied into this letter, and should subsequently
copied into any response you wish to make to the Council. 

 

Each of your original questions will be taken in turn:

 

Could you tell what was (and is) this procedure in detail you had (and
have) in place for an internal review of an Environmental Information
Request”

 

Response:

 

Under the Environmental Information Regulations 2004 the Council has an
obligation to allow an applicant to “make representations to a public
authority in relation to the applicant’s request for environmental
information if it appears to the applicant that the authority has failed
to comply with a requirement of these Regulations in relation to the
request.” (see EIR reg 11(1)).  

 

The Council does this by allowing a person to have a matter internally
reviewed.  At 14^th September 2011 there was no separate procedure for
dealing with EIRs; they are reviewed in the same way as reviews for
matters under the Freedom of Information Act.   

 

The Council’s standard practice when responding to a request under either
FOIA or EIR is to advise the applicant of their rights to:

 

(a)   make a complaint about the way the matter has been handled;

(b)   ask for the matter to be reviewed internally by the Council; and

(c)   refer the matter to the Commissioner, and providing relevant contact
details for this to be done.

 

The Council notes that it did not, but should have included this standard
information to you when you made the request of 14^th September 2011.   
The Council apologises for not doing this.  It also notes that you have
previously asked the Council to review previous decisions – for example
CBC 1007 – and so it is apparent to the Council that you are aware of the
procedure that is available. 

 

A detailed document setting out the procedure was developed in January
2012.  This reflected the Council’s practice at the time, although the
procedure had not been set out in this detail before.   The procedure
applies to:

 

(a) requests for review under EIR regulation 11 and

(b) requests to review FOI decisions, as required by Part VI of the Code
of Practice issued under section 45 of FOIA.

 

All procedures relating to EIR, FOIA and DPA are under review and will be
updated over the next few months.

 

Why if any procedure you have (and had) was in place was it not used in
the case of CBC 1007 as CBC was treating it as an EIR request.

 

Response:

 

The factual history of CBC 1007 is well-documented in the ICO’s Decision
Letter relating to matter FER 03780137.  A review of that decision did
take place and, although not in strict accordance with the procedure set
out in January 2012, did provide for a reconsideration of the decision at
an appropriate level and, it must be noted, resulted in the decision being
changed and the information being released.

 

Could you tell me why your CBC EIR website had a minimum charge of £80 for
ANY EIR request at all which had to be paid in advance before CBC would
deal with it.

 

Response:

 

            The statutory basis for charging can be found in EIR
regulation 8.

 

An extract showing the Council’s EIR web page as it stood on 14^th
September 2011 is attached (Attachment 1), along with the charging regime
applicable at that date (Attachment 2); information about what is freely
available and where charges are made is set out in these two documents.   
The charges set out are set in and kept under review in accordance with
what is permitted under EIR regulation 8.

 

Would you also tell me how many people you have illegally charged this
fee.

 

Response:

 

Charges made by the Council are in accordance with EIR regulation 8,
therefore the number of persons “illegally charged” is nil.

 

According to records kept by the Council, since 2005 (when EIR came into
force) up to 14^th September 2011, 231 requests had been dealt with in
total.   Of this total number, 113 requests have been the subject of
charge. 

 

From 14^th September 2011 to the end of April 2012 there have been 13
further requests, of which 1 has been subject to charging. 

 

 

The Council hopes that these responses deal fully with your original
requests. 

 

 

Yours sincerely,

Dyfrig Lewis-Smith, Solicitor

Access to Information Officer

 

 

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FOI Mailbox, Chelmsford City Council

1 Attachment

 

 

Dear Mr Sargent,

 

This is a copy of an email sent to you on 12^th June, which I am also
sending via the WDTK response address which you provided.

 

Here is the text of the email of 12^th June.  The information disclosed is
provided in the attachment.

 

Dear Mr Sargent

 

FS 50426059

 

I refer to my emails of 22^nd and further of 29^th and 31^st May where I
discussed the method of making further information available to you in
response to your original request.

 

You have indicated to me that the information I described in my email of
29^th May was “not the information I want and totally irrelevant”.

 

I have discussed this issue further with ICO.  Their advice is: “If it is
CBC's response, however delayed, then it should be provided to him now.” 
Following this advice, I am sending you the document which contains the
historic iterations of the Council’s EIR web-page. 

 

In other correspondence, you have also indicated that you believe
questions originated through the whatdotheyknow.com website should be
answered in the same way.  I am therefore making arrangements for the
response of 22^nd May and this response to be issue via the WDTK website
to ensure completeness.

 

 

Yours sincerely

Dyfrig Lewis-Smith, Solicitor

Access to Information Officer

Chelmsford City Council

 

 

Accredited with the IiP Gold Standard

 

 

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Dear FOI Mailbox,
This is with the Commissioner at the present time because none of my questions were answered. Your response above shows no change at all.
1You did not have a procedure in place to which you have admitted and the one written 8 years too late is factually wrong in the Timing section. It gives 3 months to ask for an internal review for both EIR and FOI. This your legal department really should know is wrong for both.
2 There was no internal review of CBC 1007 which I did ask for but got nothing. The decision to give me the information was only when all the decisions for instance not to make them fit for purpose and have retrieval ropes as RoSPA recommended - It was a year later than when i should have got it. This was nothing to do with an internal review at all.
3You have ignored this most important part because as a meta request I am asking about what the webpage said when the CBC1007 was changed to an EIR.
This was an £80 minimum charge I was asked to make to progress this FOI changed to an EIR by CBC in advance and this was the minimum so it could have been even more. (ICO has all this information) I am sure you will agree that EIR reg 8 says nothing about this being allowed.
4 Charges were not in line with regulation 8 and the CBC EIR webpage categorically stated £80 pay in advance or the EIR would not be progressed.

you stated :
Charges made by the Council are in accordance with EIR regulation 8,
therefore the number of persons “illegally charged” is nil.

According to records kept by the Council, since 2005 (when EIR came into
force) up to 14^th September 2011, 231 requests had been dealt with in
total. Of this total number, 113 requests have been the subject of
charge.

From 14^th September 2011 to the end of April 2012 there have been 13
further requests, of which 1 has been subject to charging

Bear in mind You are talking about the webpage at 14th September 2011 i am talking about the webpage that was there since 2005 which had these illegal charges demanded which were not allowed by Regulation 8 for materail viewed at the council offices etc. The 14th September webpage as you should know, as I given CBC the emails to and from CBC webmaster, was the one I got it changed to when I demanded CBC remove this illegal request for £80 minimum for the EIR request to be progressed.
Your figures show that there is every liklihood that there have been people charged when they should not have been . I would call that illegal as I do not know what else to call it.

As far as all the changes to webpages doc I have no idea whatsoever what this has to do with anything. The only webpages that matter are the one I got the webpage changed to with info to say it was free to view material at the council offices and the ones before that all with this £80 minimum charge which was not a charge that shoud be made for viewing material at the council offices

Yours faithfully,

Paul Sargent

Dear FOI Mailbox,
Below are emails concerned for the removal of any more doubt or confusion.
This is when the webpage was changed to show no mandatory charge was required. As you can see I got it changed and am all this time later trying to get justice.
I also asked for the FOI and EIR page to be amalgamated but it was not thought necessary.
Just over a year later this suggestion is being acted on.

----- Original Message -----
From: *****, ******
To: Paul Sargent
Cc: ********** ****
Sent: Thursday, October 21, 2010 10:54 AM
Subject: RE:

Dear Mr Sargent
Ms ********** has provided me with some amended text, so I have now updated the EIR page on our site as she has directed.

Regards

****** *****
Online Communications Officer
Corporate Services
Chelmsford Borough Council
Tel: (01245) ******
www.chelmsford.gov.uk
Accredited with the IiP Gold Standard

--------------------------------------------------------------------------------

From: Paul Sargent [mailto:[email address]]
Sent: 20 October 2010 18:50
To ******
Subject: Re:

Dear Ms *****,
Thankyou for your help and I think you will remember I was able to point out that the old FOI page was in need of change and it was changed so thank you.

I now have a similar problem with the EIR webpage. The points I raised seem to be being dealt with by Ms Culverwell who seems to think there is not much wrong with the webpage.

I have pointed things out in my emails to her which I think may not come to your attention and they are important points I can assure you, but it seems she is taking no notice of my emails.

It is important that people should not look at the webpage and be put off, like I have been, by the fact the webpage says that all EIR requests will not be actioned until a large fee is paid.

Also the items in section c and e of "what is envronmental information" is not just going to be in environmental lists or public registers as I have said to her. It is in any information in any form as stated in the first sentence.

What also concerns me is that if I had gone ahead earlier with my requests to Park Services, about biodiversity projects and programmes and cost benefits etc. in West Park, I would have paid the legal department this large fee.

When the web page is corrected I assume details of fees will show they are only charged under certain circumstances and I can go ahead.

I am now wondering how many people have been falsely charged because of the webpage Ms Culverwell still states is "correct".

Unfortunately I now realise I should have raised this with you by email instead of phoning environmental services .

Because I, and I hope you, would like this sorted out as soon as possible I hope you don't mind reading the correspondence with Ms Culverwell I have forwarded to you.

Yours sincerely,

Paul Sargent

Yours faithfully,

Paul Sargent