Further background papers re £50k Covenant

tim todd made this Freedom of Information request to East Devon District 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 partially successful.

Dear East Devon District Council,

On the Exmouth Vision website (http://exmouthvision.com/2013/02/27/more...) and elsewhere, there is a reference to the discussion, on 1st October 2008 by the Executive Board, of a report concerning the Seafront Covenants from the Principle Estates Surveyor. I wish to see that report together with all other reports/notes/emails, records of conversations, briefing papers etc concerning the seafront covenants. (all meaning each and every)

You noted that that particular report contained commercial information. Commercial confidence is not, as far as I can ascertain, a statutory reason to blanket refuse producing a report in response to an FOI. I do not accept that commercial confidence is now a valid exemption under the Act* and I believe that, especially after all this time and in light of the completion of the purchase of the covenants that it is in the public interest that you now release all the reports etc concerning the history of the covenants and the consideration of their purchase.

You need not provide again those documents that have been placed in the public domain since my first request on this matter.

If you take the view that you can refuse this request, you are required to explain why such a refusal is in the public interest.I believe that it is in the public interest that you do release all documentation and, if you claim otherwise , then we will have to let the Information Commissioner decide who is right.

Yours faithfully,

tim todd

* Note. Section 43 -trade secrets and information likely to prejudice commercial interests. In order to use the exemption for commercial interest, a public body must first prove that a commercial interest would be harmed by the release of the information, and then conduct a public interest test. An important point to note is that when conducting the public interest test, the authority should not take into account any harm that may be caused to a private firm by the disclosure. That is a private interest rather than a public interest and so should not be taken into account. Source:Your Right to Know 2nd editon Heather Brooke

East Devon District Council

Thank you for submitting a request for information. We will respond to your request as quickly as possible, within the 20 working day statutory deadline under the Freedom of Information Act 2000.

For updates on this case, please quote your unique reference number 101000286302 .

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Customer Service Centre
East Devon District Council
Web: www.eastdevon.gov.uk

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Dear East Devon District Council,

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

I am writing to request an internal review of East Devon District Council's handling of my FOI request 'Further background papers re £50k Covenant'.

The time permitted by law for a response has now expired. Please review without further delay as I wish to pass this to the Information Commissioner.

May I take this opportunity to point out that your recent report on FOI is utterly misleading. Whilst the average time for a reply may be 12 days, the fact remains that you consistently fail to comply with the legal obligations- as this requesty demonstrates.

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

Yours faithfully,

tim todd

Kate Symington, East Devon District Council

My apologies Mr Todd. We will respond as soon as possible.

Regards

Kate Symington
Information and Complaints Officer
East Devon District Council

01395 517417
www.eastdevon.gov.uk

show quoted sections

East Devon District Council

Dear Mr Todd,

Thank you for your request for information. Please find the response to your query below.

I am very sorry for the delay in getting back to you on this request. This has been due to our considering the public interest test in determining whether or not disclosure is appropriate in this case.

You asked for a copy of a report which was considered by the Council?s former Executive Board in October 2008. This report was considered under Part B (exempt information) as containing information relating to the financial or business affairs of any particular person.

The test we have applied is whether, with the passage of time, this information can still be considered to be commercially sensitive under the terms of the Freedom of Information Act and whether public disclosure is now warranted and acceptable.

In considering this position, we have contacted Clinton Devon Estates (CDE) who are clearly named within the report and whose business dealings with this Council are scrutinised in the report.

CDE have been clear in their response to us that they feel that the information remains commercially sensitive and the reasons provided for this are as follows:
? The report details contractual matters between CDE and EDDC and the detail remains commercially sensitive
? CDE is still dealing with seafront covenant issues in Exmouth on a regular basis and the disclosure of this detail could therefore potentially prejudice ongoing negotiations
? The covenants in question were personal to Lord Clinton and this level of scrutiny would be inappropriate and a breach of his human rights.

Whilst we do not need to obtain the permission of third party organisations in determining whether or not to disclose information which is in our possession, their views are sought as a matter of course and are taken into account in our eventual decision.

Information about the release of covenants on the seafront in Exmouth has been made public ? including the overall amount paid to CDE by the Council and we believe that sufficient information has been made publicly available in order to clearly outline the spending of public money and the reasons for this. I refer you specifically to
http://exmouthvision.com/2012/12/07/deta...

We believe that the public interest has been served in the level of detail which has already been made publicly available and, taking into account all relevant factors, including the views of CDE, our considered view is that the requested information is exempt from disclosure under s43(2) of the Freedom of Information Act. On balance the public interest is in the Council?s view better served by the negotiations which led to the agreement remaining confidential as the issues addressed may arise again elsewhere and would be likely to be prejudiced by full disclosure.

If you feel dissatisfied with our consideration of your request, you have the right to refer the matter to our Monitoring Officer, Denise Lyon who will consider the Council?s position.

You may also approach the Information Commissioner for further advice at www.ico.gov.uk or on 0303 123 1113.

If you are not satisfied with the way we have responded to your request, please fill in our online complaint form at www.eastdevon.gov.uk/making_a_complaint or write to the Monitoring Officer, EDDC, Knowle, Sidmouth, EX10 8HL.

Kate Symington
Information and Complaints Officer
East Devon District Council

01395 517417
www.eastdevon.gov.uk

_____________________________________________________________________
http://www.eastdevon.gov.uk/email_discla...
_____________________________________________________________________

tim todd left an annotation ()

The reasons for refusal are not deemed valid. They contain elements which contradict what has already been said by EDDC, include irrelevant material, ignore issues of public interest and will be challenged shortly with no doubt, a follow up complaint to the ICO.

Dear East Devon District Council,

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

I am writing to request an internal review of East Devon District Council's handling of my FOI request 'Further background papers re £50k Covenant'.

In your grounds for refusal you make a number of points on behalf of Clinton Devon Estates. I question your relationship with CDE insofar as it influences your decision in this matter.

Whilst the matter may have been commercially sensitive at one time,(a point I do not concede) it cannot be so now that the sale/transfer has taken place.

In explaining EDDCs reasons behind purchasing the seafront covenants, you made it very clear that you were doing this to avoid going back and forth to CDE as and when needs arose to sort out covenant issues. You said you were advised to sort them out in one go and you indicated that was the basis of arriving at the figure of £50,000 plus legal fees. (see your own comment from Exmouth Vision page http://exmouthvision.com/2012/12/19/lift... "If EDDC had decided to sell an interest in the site concerned, then a variation to the covenants would have needed to be made, along with payment to CDE. What’s more, it became clear that CDE would expect payment for each future variation of the covenant restrictions as and when any new development occurred. We asked for the District Valuer’s advice, which was that a one-off payment to lift all the covenant restrictions would be a prudent use of taxpayers’ money to remove all future – and unknown – potential liability")

Neither you nor, CDE, cannot have it both ways. Either you misled us in the first instance, or CDE are still dealing with seafront covenant matters. What, if all the seafront covenants were dealt with in one go as you asserted, can there be left to discuss let alone be commercially sensitive?

The very fact that you have now cast doubt upon the assurances you gave about the reasons for purchasing all the seafront covenants, increases the case of full disclosure being in the public interest

With regard to Lord Clinton's human rights, we no longer live in a feudal society, his are the same as any other mortal in this matter, no more, no less. To suggest that to enquire into money's he received from the public purse is out of bounds because it would breach his human rights is regarded as nonsense and irrelevant. In any case, this is about his business Clinton Devon Estates as you confirm, again on your exmouthvision page about the covenants. I quote "These were put in place by Clinton Devon Estates (CDE) for their benefit following the sale or gifting of land to EDDC’s direct predecessor, Exmouth Urban District Council"

Given the circumstances, the fact that these negotiations can only ever involve EDDC and CDE, it is difficult to imagine how disclosure of a past report can either prejudice the commercial interests of any business let alone any person and therefore S 43 (2) cannot apply.

The public interest in full disclosure is considerable and is even greater in the light of the numerous matters to do with propriety at EDDC in the recent past. Without going in to detail in a public forum, it should suffice to say that public confidence in EDDC has never been strong but is currently at an all time low. There is evidence that the public have been misled in regard to various and matters concerning developments in the district and it is essential that public confidence be restored where possible by full disclosure. I repeat, EDDC gave us assurances that all the seafront covenants had been acquired in one go, now you are claiming there are seafront covenants outstanding. The public have an absolute right to know whether you have misled us in your reasons in spending around £60,000 on a covenant buy out.

I believe that a fortnight is regarded as a reasonable time in which to expect a review to take place and trust that it will not be long before I learn of your decision. If my request remains refused I shall invite the Information Commissioner to make a judgement.

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

Please confirm receipt of this review request.

Yours faithfully,

tim todd

Kate Symington, East Devon District Council

This is an automated reply.

 

Please note that I will not be able to respond to your message until
Wednesday 14th August 2013.

 

If you wish to make a complaint or submit a request for information under
the Freedom of Information Act, please refer to our website at
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Denise Lyon, East Devon District Council

Dear Mr Todd

 

I am sorry that you feel dissatisfied with our response to this request
for information. I will deal with each of the points you raise in your
email, in turn:

 

1.       I question your relationship with Clinton Devon Estates in so far
as it influences your decision in this matter.

As advised, we do not need the permission of third party organisations to
disclose information which is in the Council’s possession. However, it is
good practice to seek the views of third party organisations where
information requested specifically identifies them and their business
dealings. It is not the case that this “influences” our decision but that
the views of this organisation are duly considered and a decision made as
to whether or not we feel that the information is exempt from disclosure.
This decision is ours to make.

 

2.       The matter may have been commercially sensitive at one time but
it cannot be so now – the sale/transfer having taken place.

This was the key issue for consideration in determining whether or not
information could be disclosed to you. As advised, our view was, and
remains to be, that  issues raised during the negotiation of this transfer
may arise again and our considered view is that it is to the greater
public good that the detail of these negotiations remains confidential. As
also advised, Clinton Devon Estates is still dealing with covenant issues
on a regular basis and their view is that the disclosure of this level of
detail could prejudice ongoing negotiations.

 

3.       Lord Clinton’s human rights

Whilst this was a point raised by Clinton Devon Estates – this was not the
reason for non-disclosure of this information. We felt it might be useful
to include the comments provided to us by Clinton Devon. The information
was exempt from disclosure for reasons of commercial confidentiality as
advised.

 

4.       The public interest

As advised, the public interest was a key consideration in the decision to
withhold information. We believe that sufficient information about the
spending of public money has been made public and that the public interest
could actually be harmed by the full disclosure of the detailed
negotiations. The term public interest in this context is intended to mean
what is to the public “good” not necessarily simply what may be “of
interest” to the public.

 

I confirm that we have reviewed our decision to withhold this information
and that we remain of the view that the information is exempt under s43(2)
of the Freedom of Information Act – the disclosure of this information
would be likely to prejudice the commercial interests of third parties and
the Council as the public authority holding the information.

 

If you remain dissatisfied you may refer this matter to the Information
Commissioner at [1]www.ico.gov.uk or on 0303 123 1113.

 

Yours sincerely

 

 

Denise Lyon

Deputy Chief Executive and Monitoring Officer

East Devon District Council

Tel: 01395 516551 x2680

 

Direct dial: 01395 517480

Web: [2]www.eastdevon.gov.uk

 

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tim todd left an annotation ()

Readers will note that EDDC do not address the question of the disparity in the matter of whether or not all the seafront covenants were bought up in one go, as originally claimed by EDDC, or whether some remain, as claimed by CDE. Both cannot apply.
Readers will also note that EDDC now back off the claim that the release will have a bearing on Lord Cliton's Human rights - yet they saw fit to include it as a reason to refuse the request in the first place. I suggest it was improper of them to do so, but we will see what the ICO have to say in due course.

Kate Symington, East Devon District Council

1 Attachment

Mr Todd

 

The Council has taken the opportunity to consider our response to your
request for information (ref 101000286302) relating to the release of
covenants on the Seafront at Exmouth. This information had previously been
withheld on the grounds that it was considered to be commercially
confidential and exempt from disclosure under s43 of the Freedom of
Information Act.

 

We are mindful of the fact that the purchase of these covenants took place
some time ago and that this transaction is now complete. Whilst the
regeneration of this area remains very much a live project we accept that
the commercial confidentiality relating to the transaction between EDDC
and Clinton Devon Estates has now reduced.

 

Having withdrawn our previous reliance on s43 (commercial interests) we
have considered whether some information can now be released and I have
attached two previously confidential reports to the Council’s Cabinet
(formerly Executive Board). You will note that there are some redactions
within the reports and I can confirm to you that these sections relate
specifically to external legal advice which is subject to Legal
Professional Privilege and exempt under s42 of the Freedom of Information
Act.

 

I am sorry that you have had to chase this matter up and thank you for
your patience.

I hope this information is helpful.

 

Regards

 

Mrs Kate Symington

Information and Complaints Officer

East Devon District Council

 

01395 517417

[1]www.eastdevon.gov.uk

 

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tim todd left an annotation ()

Leaving aside, for the moment, the content of the newly released information,I would wish to point out how completely misleading EDDC's reply of 21st January is.
The provision of the requested information is not a result of diligence by EDDC and a will to keep it's local population informed.
It is a direct result of an intervention from the Information Commissioners Office which makes it clear that EDDC's use of a certain exemption (S43(2) was improper. That intervention arose from a complaint to the ICO by me.
EDDC have, at the stage of the Commissioners investigation, applied an exemption under a different section of the Act (Sec 42- which applies to lawyer/client communications)and part has been redacted.
I note in my reply from the ICO that EDDC must copy their reply to me, to the ICO. Is it unreasonable to conclude, that EDDC whom the ICO previously suggested should be subject to special measures, are still not trusted by the ICO?
The reply of 21st suggests they have learned nothing from past criticism.

tim todd left an annotation ()

For clarity I reproduce below, the body of the letter which the Information Commissioner has sent to EDDC in relation to this matter and which he has copied to me.
-------------------

23 January 2014

Our Ref: FS50512425

Dear Mrs Symington

Freedom of Information Act 2000 (FOIA)
Complainant: Mr Tim Todd

I write further to recent correspondence and the 21 January 2014 email disclosure by East Devon District Council (the Council) to Mr Todd of the seafront covenant reports, following intervention and advice from the Information Commissioner (the Commissioner).

Mr Todd submitted an information request to the Council on 26 April 2013 for a report concerning the seafront covenants from the Principle Estates Surveyor, ‘together with all other reports/notes/emails, records of conversations, briefing papers etc concerning the seafront covenants’. As the request made clear, Mr Todd was not just seeking the Principle Estates Surveyor report(s) but any and all such associated information concerning the seafront covenants.

The Council responded to the request on 19 June 2013 and confirmed that the report was being withheld under Section 43(2) of the FOIA (the commercial interest exemption). The Council apologised for the delay in providing the response (the 20 working day deadline having expired on 24 May 2013) and explained that this was due to a consideration of the public interest test which is attached to Section 43 as a qualified exemption. The Council’s response only confirmed the position in respect of the report and did not confirm whether any other information was held relevant to the request.

Mr Todd requested an internal review of the response on 13 August 2013 and this was promptly provided by the Council on 23 August 2013. The review upheld the use of Section 43(2) and stated that disclosure of the report would be likely to prejudice the commercial interests of third parties and the Council.

Mr Todd complained to the ICO about the Council’s response to his request on 10 September 2013. During the course of his investigation the Commissioner established the extent of the relevant information held by the Council (the seafront covenant reports and legal advice) and obtained and considered copies of the same. On 23 December 2013 (eight months after Mr Todd’s request) the Council advised that it was applying Section 42 (legal professional privilege) to the legal advice concerning the seafront covenants and some small sections of the reports which refer to or replicate this legal advice.

Having considered the withheld information and the information provided by both parties (particularly Mr Todd’s helpful letter to the ICO of 10 September 2013), the Commissioner advised the Council that at the time of Mr Todd’s request a persuasive case for Section 43(2) could not be made and that the exemption should be withdrawn accordingly.

With regard to Section 42, the Commissioner was satisfied that this exemption had been correctly applied to the legal advice and to the small sections of the reports, and that the public interest would favour maintaining legal professional privilege to this information. As the Council will be aware, there is an inherently strong public interest in protecting legal professional privilege and the Section 42 exemption is not as time dependent as Section 43.

Following the Commissioner’s assessment and advice the Council withdrew its reliance on Section 43(2) and disclosed redacted copies of the seafront covenant reports to Mr Todd on 21 January 2014.

The Commissioner appreciates the cooperation which the Council has provided to his investigation and advice in this matter and your personal assistance in particular.

However, the handling of this request was less than satisfactory in a number of respects and the Council will need to use this case as a learning tool to avoid similar procedural issues arising in future.

Firstly, it is apparent that the Council did not take sufficient or due care in initially reading Mr Todd’s request because (as Mr Todd later pointed out), his request was not solely for the seafront covenant reports (which was the only information referred to and addressed in the Council’s request responses) but for any other associated documentation.

Secondly, whilst a public authority is not prohibited from applying an exemption to information requested at a late stage (even during the Commissioner’s investigation), it is not good practice to do so and would only be reasonable where it would not have been clear shortly after receipt of a request as to which exemptions might apply. In this case, had Mr Todd’s request been read carefully and correctly, it should have been quickly apparent that the legal advice would attract Section 42, as would any references to such advice in the seafront covenant reports (at that stage withheld under Section 43(2)).

The Council was quick to rectify this oversight when it became apparent during the Commissioner’s investigation, but it is obviously unsatisfactory when a requester is not informed of the use of an exemption during the request or internal review response. The fact that the Commissioner (as here) was able to incorporate the late exemption (Section 42) into his investigation does not remove the duty of a public authority to inform a requester at the earliest possible juncture, which exemptions it is applying to withhold any information requested.

Finally, as regards Section 43, the Council should note that this exemption is often very dependent upon the timing of a request and the status of the contract/negotiation/sale or other commercial arrangement which is the subject of an information request. Where, as here, a transaction was completed some time ago, then it will be less likely that it can be argued that disclosure of the associated information would or would be likely to prejudice the commercial interests of any parties concerned and the public interest balance would usually lie in favour of disclosure of such information to ensure due transparency and accountability.

Although the regeneration of the area to which the seafront covenants relate is, as the Council notes, ‘very much a live project’, the purchase of the seafront covenants (the specific focus of Mr Todd’s request) was not and the Council should have recognised, prior to the Commissioner’s involvement, that Section 43(2) was not appropriate in this specific case.

Following the Council’s provision of the requested information to Mr Todd, the Commissioner can confirm that this matter is now closed and the noted shortcomings aside, would acknowledge and thank the Council for the cooperation shown during his investigation into this matter.

Please note that a copy of this closing letter has been provided to Mr Todd.

Yours sincerely

---------
(from a named Senior Case Officer )

Mark Hawkins left an annotation ()

The ICO's response does not seem wholly satisfactory. He notes that Mr Todd has requested other information and that the council have not referred to this in their replies, but he does appear to fall short of requiring them to provide it. The use of commercial confidentiality as an excuse for attempting to keep this information concealed does as Mr Todd suggests seem wholly inappropriate. These covenants were a custodial obligation, not a business asset. The only Lord Clinton to whom these covenants were a personal matter is not the current one, and I do not believe it is possible to infringe the human rights of the deceased, though it is possible to betray a legacy for reasons driven by greed. The shifting references to CDE still being involved in negotiations/discussions over covenants raises two questions. 1) Was the reference to being still involved regarding the Exmouth covenants a dishonest one? 2) Are there negotiations between CDE and EDDC regarding a further furtive deal or deals in other parts of East Devon? Is there evidence of the full conversations between EDDC and CDE regarding this request, or were they conducted verbally to avoid leaving evidence? Is the confidential legal advice referred to provided by an external source or does any come from the council's chief executive?