Morwellham Quay reports

The request was partially successful.

Dear Devon County Council,
Recent developments at Morwellham Quay have demonstrated that decisions taken in regard to the site affect the environment for the purposes of the Environmental Information Regulations 2004.
Therefore, please provide the following under those regulations.

1) A copy of the joint report of the Executive Director of Environment, Economy and Culture, the Director of Finance and the County Solicitor on Morwellham Quay prepared in August 2009 and discussed on 1st September 2009.

2) All communication with third parties made in the preparation of the report at 1). These third parties include but are not limited to:
• Morwellham Quay and Tamar Trust
• West Devon Borough Council
• The Heritage Lottery Fund
• Potential purchasers of the site

3) The complete contents of minute 35 of the cabinet meeting of 1st September 2009.

4) A copy of the report on the consequences of the withdrawal of support, the production of which was resolved at the meeting of the 1st September 2009.

5) All communication with third parties made in the preparation of the report at 4).

If any exceptions are engaged, please provide full details of the public interest tests performed, including the factors examined and the weight applied to each. Please provide details of how these apply to each of the individual points requested.

Yours faithfully,

Matt Kane

Freedom of Information Office - Mailbox, Devon County Council

Information Request: 01762

I received your request on 28 September 2011 for information held by Devon
County Council regarding Morwellham Quay.

Your request will be dealt with under the Environmental Information
Regulations 2004.  You are entitled under these regulations to be informed
whether or not the information you have requested is held by Devon County
Council and if so to be given access to that information within 20 working
days (subject to any exceptions).

You should expect to receive a response to your request by  26 October
2011

Yours sincerely

Devon County Council
Information Governance Team
Strategic Intelligence
Services for Communities, Room L 10
County Hall, Topsham Road, Exeter EX2 4 QD
Tel: 01392 384678

Disclaimer: [1]http://www.devon.gov.uk/email.shtml
Applicable to private messages: "Devon County Council accepts no legal
responsibility for the contents of this message. The views expressed do
not reflect those of Devon County Council"

Please be aware that emails may have to be disclosed under the Freedom of
Information Act 2000 or the Data Protection Act 1998

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Dear Freedom of Information Team,
This is just a reminder that I am due a response to this request by tomorrow.

Yours faithfully,

Matt Kane

Dear Freedom of Information Team,
Your response is now overdue. Due to my previous experience of requests to DCC, I will be complaining to the ICO if I do not receive a response before the end of Friday 28th October.

Yours faithfully,

Matt Kane

Dear Freedom of Information Team,
As indicated earlier, if I receive no adequate response to this by the end of today I will be submitting a complaint to the ICO. I look forward to your reply.

Yours faithfully,

Matt Kane

Dear Freedom of Information Team,
In the absence of a response, this is just to notify you that I have now submitted a complaint to the ICO regarding the late handling of this request.

Yours faithfully,

Matt Kane

Dear Freedom of Information Team,
This is more than a week overdue, with no explanation as to the delay. Can I please have an update and an estimate as to when I can expect a response.

Yours faithfully,

Matt Kane

alan m dransfield (Account suspended) left an annotation ()

Matt
No doubt the DCC will come back to you with their apologies as their team are SO OVERWOKED blah blah.
It is amazing just how many disgrunted FOI requesters are out there.

Dear Freedom of Information Team,
This request is now more than three weeks overdue. Can I please have an update.

Yours faithfully,

Matt Kane

Matt Kane left an annotation ()

Alan: Their late responses are frustrating, but they probably are genuinely overworked. They are just doing their job. Whatever the rights and wrongs of the case, the fact they are having to review all of your dozens of requests won't have helped their workload.

alan m dransfield (Account suspended) left an annotation ()

Matt
Sorry, but I don't have any sympathy with them , they have created a MOUNTAIN of backlog on my requests alone.
If they had treated my request in accordance with law, they wouldn't have any backlog.

Freedom of Information Office - Mailbox, Devon County Council

1 Attachment

Dear Mr Kane,

Information Request: 01762

I write further to your request for information under the Environmental
Information Regulations 2004 received on 28th September 2011.  Under the
Regulations you were due to receive a response to your request by 26th
October and I therefore apologise that we were unable to respond to you by
this date.

However, I can advise that we are able to provide you with a response
today, and as such, please find Devon County Council's response attached.

<<EIR 01762 - Finance - Withdrawal of support for Morwellham Quay.pdf>>

I hope this information is of assistance to you.

Yours sincerely

Freedom of Information Team

Devon County Council
Information Governance
Strategic Intelligence
Services for Communities
Room L10
County Hall
Topsham Road
Exeter
EX2 4QD
Tel: 01392 38 4678

Please be aware that emails may have to be disclosed under the Freedom of
Information Act 2000 or the Data Protection Act 1998.

Your right to complain
If for any reason you are not satisfied with how your request has been
handled, please write to Devon County Council’s Freedom of Information
Office, County Hall, Topsham Road, Exeter, EX2 4QD. Details about our
Access to Information complaints procedure can be found at
[1]http://www.devon.gov.uk/complaintshandling. If your complaint is not
resolved to your complete satisfaction, you have the right to refer the
matter to the Information Commissioner’s Office, Wycliffe House, Water
Lane, Wilmslow, Cheshire, SK9 5AF.

Re-use of information
The information supplied to you continues to be protected by the
Copyright, Designs and Patents Act 1988. You are free to use it for your
own purposes, including any non-commercial research you are doing and for
the purposes of news reporting. Use for Direct Marketing purposes is
prohibited. Any other re-use, for example commercial publication, would
require the permission of the copyright holder. Most documents supplied by
Devon County Council will have been produced by local officials and will
be our copyright. If you would like to re-use any of the information which
has been supplied to you, please contact us. Information you receive which
is not subject to our copyright continues to be protected by the copyright
of the person, or organisation, from which the information originated. You
must ensure that you gain their permission before reproducing any
information.

Disclaimer: [2]http://www.devon.gov.uk/email.shtml
Applicable to private messages: "Devon County Council accepts no legal
responsibility for the contents of this message. The views expressed do
not reflect those of Devon County Council"

References

Visible links
1. http://www.devon.gov.uk/complaintshandling
2. http://www.devon.gov.uk/email.shtml

Dear Freedom of Information Team,

Thank you for your reply, and for the comprehensive nature of the documents provided. However, while I am grateful that the council has now released the information, I am disappointed by the level of redaction. Unfortunately I must therefore request an internal review, for the reasons given below. Please pass this message onto the person responsible for conducting internal reviews.

The report provided in response to question 1 and the correspondence related to it have a number of significant redactions, where an exception under 12(5)(e) has been applied. I believe that this exception has been applied incorrectly. The critical information appears to be "Scenario 2", which has been redacted from the report, and all references to which have been redacted from related correspondence. The reason given is that "release of this information would be likely to prejudice the interests of the Council and those of other parties". This appears to be based on wording of Section 43 of the Freedom of Information Act. However, the exception provided under regulation 12(5)(e) is much narrower in scope than that provided under the FOIA. I think it's worth quoting the tests that need to be applied in this regulation, according to the ICO's LTT160.

1) Is the information commercial or industrial in nature?
2) Is the information subject to a duty of confidence provided by law?
3) Is the confidentiality provided to protect a legitimate economic interest?
4) Would that legitimate economic interest and thereby its confidentiality be adversely affected by disclosure?

I believe that this information fails several of these tests.

For the information to be subject to confidentiality provided by law, there must either be a contractual or common law duty of confidence in place. This has not been argued by DCC, and is unlikely to be the case. This document was produced by DCC for its own use, which means it cannot attract a duty of confidence, as an authority owes no duty of confidence to itself. In its decision in case FS50163282 (Queens University Belfast), the ICO stated that no confidentiality can be provided in law for information generated by an authority for its own use.

The legitimate commercial interest in test 3 must be present at the time of the request. The fact that the Morwellham and Tamar Trust has now gone into liquidation and the assets sold to another party would mean that it is unlikely that any current commercial interest would be affected. Presumably the third parties whose interests are cited do not include the eventual purchasers of the site, as this information was produced well before the site was put onto the market.

Test 4 is much stricter than the one in Section 43 of the FOIA. The authority needs to demonstrate that disclosure WOULD adversely affect the legitimate commercial interest, rather than just showing that it is LIKELY to affect it, as under FOI. The crucial information redacted from the notes of the meeting of the Morwellham Liason Group which took place on 20th August 2009 is a single line describing scenario 2. It is hard to see how DCC can be certain that such a piece of information would adversely affect commercial interests, or even that it is information that is commercial or industrial in nature.

Yours faithfully,

Matt Kane

Freedom of Information Office - Mailbox, Devon County Council

Dear Mr Kane,

Internal Review 01762

I write further to your email below, as I understand that you have raised concerns regarding the utilisation of the exception from disclosure at Regulation 12(5)(e) within the council's response of your request under the Environmental Information Regulations 2004. Please note that in order to bring this matter to conclusion, I intend to review the council's response in accordance with our authority's Access to Information Complaints Procedure (available online at http://www.devon.gov.uk/complaintshandling).

As the Independent Review Officer for Devon County Council I intend to conduct an investigation into the particulars of your request, and will endeavour to provide a substantive response to the issues which you have raised below. It is my intention to complete this investigation as soon as possible, but in any case by no later than 21/12/2011.

In the mean time should you have any further queries regarding this process or if you have any questions concerning my review of your request, please feel free to get in touch and I will be happy to assist you further wherever I can.

Yours sincerely

Martin Lawrence
Independent Freedom of Information Review Officer

Devon County Council
Strategic Intelligence
Room L10
County Hall
Exeter
EX2 4QD
Tel: 01392 384674
Email: [Devon County Council request email]

Disclaimer: http://www.devon.gov.uk/email.shtml
Applicable to private messages: "Devon County Council accepts no legal responsibility for the contents of this message. The views expressed do not reflect those of Devon County Council"

*Please note that emails may be disclosed in response to requests under the Data Protection Act 1998 and the Freedom of Information Act 2000.

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M Yelland left an annotation ()

Aye, aye!
Because there has been a no namer in answering your requests thus far,

How would anyone know that the person that has been dealing with your request, is not now, the same person that will conduct a review.

Chances are Martin Lawrence will review his own decision.

alan m dransfield (Account suspended) left an annotation ()

That is common practice Matt and I have several decisions which have been reviwed by the decision maker.
Unfortunately, there are only a few people complaining about such defects.

Dear Mr Lawrence,
As you are aware, there is a deadline of 20 working days for the completion of an EIR internal review. This has now elapsed, so I was hoping for an update on the progress of the review.

Yours sincerely,

Matt Kane

Freedom of Information Office - Mailbox, Devon County Council

Dear Mr Kane,

Environmental Information Regulations Request 01762 - Internal Review

I write further to your recent email concerning Devon County Council's
response to your Environmental Information Regulations Request (EIR
01762) concerning Morwellham Quay.

Having now had the opportunity to review the council's response in more
detail, I understand your confusion with regard to this disclosure made
under the Environmental Information Regulations 2004 (the regulations).

Upon reflection, and having paid due regard to the nature of the
information disclosed to you, it is my professional view that this
information is not Environmental Information as defined by Regulation
2(1) of the regulations, and as such, I propose to respond to this
review under the provisions of the Freedom of Information Act 2000 (the
act).

On considering the issues you have raised regarding redactions under the
auspices of Regulation 12(5)(e), I have considered the nature of the
information withheld from disclosure, and have considered the wider
public interest in its disclosure. As such, I am minded to uphold your
complaint that the information in question does not purport to be
commercial information, where disclosure would prejudice the commercial
interest of any existent bodies or enterprises. Accordingly I do not
consider that either Regulation 12(5)(e) or the compatible exemption at
Section 43(2) of the act, to be engaged and I therefore enclose said
information for your attention below.

FOI 01762 - Committee Report
http://files.devon.gov.uk/foi/FOI%200176...
Committee%20Report.pdf

FOI 01762 - Correspondence
http://files.devon.gov.uk/foi/FOI%200176...
Correspondence.pdf

You will note from the documents provided above, that formerly redacted
material is marked in yellow. Furthermore, you will also note that some
information has been removed and is marked in black. It is my view that
this information constitutes personal information as defined by Section
1(1) of the Data Protection Act 1998. Additionally, the disclosure of
this information would breach the first principle of the Data Protection
Act in so far as the disclosure would be unfair, by virtue of said
disclosure being against the reasonable expectations of the
individual(s) concerned. As such, I consider that this information is
exempt from disclosure under the provisions of Section 40(2) by virtue
of Section 40(3(a)(i).

On behalf of Devon County Council I offer my apologies to you for the
delay in the council's original provision of a response, and I hope the
information now provided is of assistance to you.

Should you have any further queries concerning this internal review
response, please feel free to get in touch and I will be happy to assist
you further wherever I can.

If your complaint has not been resolved to your complete satisfaction,
you have the right to refer the matter to the Information Commissioner's
Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF.
Further details are available from www.ico.gov.uk.

Yours sincerely

Martin Lawrence
Independent Freedom of Information Review Officer

Devon County Council
Strategic Intelligence
Room L10
County Hall
Exeter
EX2 4QD
Tel: 01392 384674
Email: [Devon County Council request email]

Please note that Devon County Council now publishes all Freedom of
Information and Environmental Information Regulations request responses
on its publication scheme. Details of previous responses are available
at http://www.devon.gov.uk/disclosurelogs-s.... The council requests
that members of the public make use of its disclosure log search
facility before making a Freedom of Information or Environmental
Information Regulations request, as it is possible that the information
sought, may have been disclosed in response to a prior request.

Your right to complain
If for any reason you are not satisfied with how your request has been
handled, please write to Devon County Council's Freedom of Information
Office, County Hall, Topsham Road, Exeter, EX2 4QD. Details about our
Access to Information complaints procedure can be found at
http://www.devon.gov.uk/complaintshandling. If your complaint is not
resolved to your complete satisfaction, you have the right to refer the
matter to the Information Commissioner's Office, Wycliffe House, Water
Lane, Wilmslow, Cheshire, SK9 5AF.

Re-use of information
The information supplied to you continues to be protected by the
Copyright, Designs and Patents Act 1988. You are free to use it for your
own purposes, including any non-commercial research you are doing and
for the purposes of news reporting. Use for Direct Marketing purposes is
prohibited. Any other re-use, for example commercial publication, would
require the permission of the copyright holder. Most documents supplied
by Devon County Council will have been produced by local officials and
will be our copyright. If you would like to re-use any of the
information which has been supplied to you, please contact us.
Information you receive which is not subject to our copyright continues
to be protected by the copyright of the person, or organisation, from
which the information originated. You must ensure that you gain their
permission before reproducing any information.

Disclaimer: http://www.devon.gov.uk/email.shtml
Applicable to private messages: "Devon County Council accepts no legal
responsibility for the contents of this message. The views expressed do
not reflect those of Devon County Council"

*Please note that emails may be disclosed in response to requests under
the Data Protection Act 1998 and the Freedom of Information Act 2000.

show quoted sections

Matt Kane left an annotation ()

The ICO have upheld the complaint that I made about the late reply to this request. At my request they took the relatively unusual step of issuing a DN, even though DCC had by that point released the information. I requested this step because the reply was exceptionally late and DCC have particularly poor record in this respect.
Decision notice is here: http://www.ico.gov.uk/~/media/documents/...

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