Dear Mr Brace

I refer to your email dated 12 December 2016, which contained the
following request for information:-

Dear Wirral Metropolitan Borough Council,

On the 7th December 2016 in Committee Room 1 of Wallasey Town Hall,
Brighton Street, Seacombe, CH44 8ED Wirral Council's Business and Overview
Scrutiny Committee met for a public meeting.

A "Private Document Pack" was produced and sent out by post to councillors
on that committee prior to the meeting.

This is a request for a copy of pages 15-136 of that Private Document Pack
which is for the following agenda item:

"6 - Call-In of Cabinet minutes 55 and 61 - Exempt Appendices"

Due to what is in those pages, I consider this to be a request under the
Environmental Information Regulations 2004 as some of what is in the
exempt appendices will be "environmental information" as defined by reg
2(1) of the Environmental Information Regulations 2004.

Moving to regulation 6 (1) of the Environmental Information Regulations
2004, I am requesting that the information be supplied in an electronic
format such as a PDF file.

If this is not possible, I am happy to accept a hard copy through the post
(if this is the case please inform me and I will supply an address).

I remind you of your duty under regulation 9(1) to provide advice and
assistance to those who make EIR requests.

Thank you.

I consider that the information you have requested is environmental
information under the Environmental Information Regulations 2004, (“EIR”).
Regulation 2 (1) (c) of the EIR provides that measures including
administrative measures), such as policies, legislation, plans,
programmes, environmental agreements, and activities affecting or likely
to affect the elements is environmental information. Plans and activities
likely to affect  the land which will form part of the proposed Hoylake
Golf Resort Project come within the definition of environmental
information.

The Council has a duty to make environmental information available on
request unless one or more of the exceptions in the Regulations apply.I
consider that your request for a copy of the information contained in the
Private Document Pack is covered by the exception contained in
 Regulation 12 (5) (b)  of the EIR in that its disclosure would adversely
affect the course of justice. I have had regard to the guidance issued by
the Information Commissioner, “The course of justice and inquiries
exception (regulation 12(5)(b)) 20140211 Version: 1.1. I consider that the
information requested is material covered by legal professional privilege,
specifically, legal advice privilege. The information concerns legal
advice given to the Council confidentially by external lawyers, who are
advising the Council in connection with the proposed Hoylake Golf Course
Project.

I consider that disclosure of the requested information would have an
adverse effect on the course of justice, having regard to the current
stage reached in respect of the Hoylake Golf Resort Project.

Public Interest Test

I am required by Regulation 12 (1) (b) to consider the public interest
test in applying this exception. Paragraph 31 of the ICO guidance provides
that “The public interest inherent in this exception will always be strong
due to the fundamental importance of the general principle of upholding
the administration of justice.”

Factors in favour of disclosing the requested  information

·         Councils should be accountable for the quality of their decision
making and this may require transparency in the decision-making process

Factors in favour of maintaining the exception:

·         Without comprehensive legal advice, Council decision-making may
be compromised because it would not be fully informed.

·         Disclosure of legal advice could materially prejudice the
Council’s ability to protect and defend its legal interests

·         Councils require legal advice for the effective performance of
their operations which advice will include arguments in support of their
final conclusions

I am satisfied that the public interest in maintaining the exception
outweighs the public interest in disclosing the information.

I also consider that the exception contained in Regulation 12 (5) (e) of
the EIR also applies to the information contained in the Private Document
Pack. Regulation 12 (5)(e) provides that a public authority may refuse to
disclose information to the extent that its disclosure would adversely
affect the confidentiality of commercial or industrial information where
such confidentiality is provided by law to protect a legitimate economic
interest. I have had regard to the guidance issued by the Information
Commissioner’s Office: “Confidentiality of commercial or industrial
information (regulation 12 (5) (e)0,201205`6 : Version:1.2.

I consider that the requested information has the necessary quality of
confidence. The information is not trivial and is not in the public
domain. The confidentiality is provided to protect a legitimate economic
interest, namely, that of the Council and the proposed developer in
respect of the Hoylake Golf Resort Project. Disclosure of the information
to a member of the public would cause harm both to the Council and to the
proposed developer, if it were disclosed at this stage of the project. I
refer to paragraph 36 of the ICO guidance:-

“ In addition to the duty to interpret exceptions restrictively, the
implementation guide for the Aarhus Convention (on which the European
Directive and ultimately the EIR were based) gives the following guidance
on legitimate economic interests: “Determine harm. Legitimate economic
interest also implies that the exception may be invoked only if disclosure
would significantly damage the interest in question and assist its
competitors”.

I consider that disclosure of the requested information would
significantly damage the interests of the Council and the proposed
developer and assist their competitors, who would gain access to
commercially valuable information, when the project is still live.

Public Interest Test

Factors in favour of disclosing the requested  information

·         The public interest in disclosure to promote transparency and
accountability of public authorities

·         That public money is being used effectively

Factors in favour of maintaining the exception

·         Disclosure would undermine the relationship between the Council
and the proposed developer having regard to the stage this project has
reached

·         Disclosure would adversely affect the Council’s bargaining
position and prejudice the commercial interests of both the Council and
the proposed developer

·         Disclosure would affect the Council’s ability to do similar
business with others in future.

I am satisfied that the public interest in maintaining the exception
outweighs the public interest in disclosing the information

I  am therefore refusing your request for information under Regulation 14
of the EIR, relying on the exceptions contained in Regulation 12 (5) (b)
and Regulation 12 (5) (e) of the EIR .You have the right to make
representations under Regulation 11 of the 2004 Regulations, which should
be sent to Jane Corrin, Records and InformationManager,Town Hall, Brighton
Street, Wallasey, CH44 8ED, email: [1][email address]. If you are
dissatisfied with this response to your request for information, you have
the right to complain to the Information Commissioner, but would normally
be expected to make representations before complaining to the
Commissioner. The address is the Information Commissioner’s Office,

Wycliffe House,

Water Lane,

Wilmslow,

Cheshire SK9 5AF

Tel -0303 123 113

[2]https://ico.org.uk/global/contact-us/

Regards

Rosemary,

Rosemary Lyon,

Solicitor,

Business Services,

Law and Governance

Town Hall,

Brighton Street

Wallasey

Wirral

CH44 8ED

0151-691-8141

 

References

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mailto:[email address]
2. https://ico.org.uk/global/contact-us/

Dear Mr Brace,

Thank you for your email requesting a review of your recent EIR request
for information. Please take this email as the response to your request.

The Council can confirm the following:-

·         The exception contained in Regulation 12 (5) (b) of the EIR
applies to pages 15 to 42 of the Private Document Pack.

·         The  exception contained in Regulation 12 (5) (e) of the EIR
applies to pages 43 to 136 of the Private Document Pack. 

·         The firm which gave the legal advice was Pinsent Mason.

I am satisfied as part of this review that the original decision in
seeking reliance on the exceptions contained in Regulation 12 (5) (b) and
Regulation 12 (5) (e)  of EIR were correct.  I also believe that the
public interest arguments given in the original request can be relied on. 
  I therefore uphold the original decision that the Council was correct in
seeking to rely on the exception contained in Regulation 12 (5) (b) and
Regulation 12 (5) (e) to withhold this information requested.

If you remain dissatisfied with the Council’s handling of your enquiry you
may complain to the Information Commissioner’s Office -  contact details
here  [1]https://ico.org.uk/global/contact-us/

Yours sincerely,

Tracy O'Hare

Information Management Officer

Business Services - Digital

Treasury Building

Cleveland Street
Birkenhead
Wirral
CH41 6BL

[2]Tel:0151 691 8397

[3][Wirral Borough Council request email]

[4]LGC Awards15_Winner_MIP

This information supplied to you is copyrighted and 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. Any other reuse, for
example commercial publication, would require our specific permission, may
involve licensing and the application of a charge

 

References

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1. https://ico.org.uk/global/contact-us/
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3. mailto:[Wirral Borough Council request email]

Dear Mr Brace,

I enclose a redacted copy of the Development Agreement, which was included
as pages 43-136 in the Private Document  Pack. The redacted information
consists of the disputed information in respect of the Council’s appeal to
the First Tier Tribunal.

Yours sincerely,

Rosemary Lyon,

Solicitor,

Wirral Metropolitan Borough Council,

Law and Governance

Business Services

Town Hall

Brighton Street

Wallasey

Wirral

CH44 8ED

I will be on Annual Leave from 13 April until 3 May. If you need advice
please contact Colin Hughes on 0151-6918-502 in the first instance.

Dear Mr Brace,

I refer to your emails of 14 and 15 September. Your original request for
information was for pages 15-136 of the Private Document Pack. The
Development Agreement constituted pages 43-136 of that pack. A Word
version of the Agreement was electronically redacted. I confirm that the
information  you have received is exactly the same as that contained in
pages 43 -136 of the hard copy of the Private Document Pack. It is likely
that the two extra pages in the Word version were caused by the formatting
of the document. Although the plans were mentioned, there were no actual
maps included in the Private Document Pack, and I do not consider these to
be part of the requested information.

I refer to your email of 15 September. I cannot find a blank page in my
copy of the pdf in connection with the relevant Definitions section that
you refer to. However, having regard to the duty to provide advice and
assistance in connection with your request, I enclose a copy of the
Definitions section from “R and A Transport Agreement” to “ Satisfactory
Planning Permission”.

Yours sincerely,

Rosemary Lyon,

Solicitor,

Wirral Metropolitan Borough Council,

Law and Governance

Business Services

Town Hall

Brighton Street

Wallasey

Wirral

CH44 8ED

Dear Mr Brace,

I refer to your email of 23 October. I do not consider that you are
entitled to an additional request for an internal review as there has
been no fresh request for information in the last 40 days and the matter
is now before the First Tier Tribunal.

Yours sincerely,

Rosemary Lyon,

Solicitor,

Wirral Borough Council

Law and Governance

Business Services

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