papers for Hoylake Golf Resort call in (Business Overview and Scrutiny Committee) meeting held on the 7th December 2016

The request was partially successful.

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,

John Brace

InfoMgr, FinDMT, Wirral Metropolitan Borough Council

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

 

 

 

show quoted sections

References

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

Dear Wirral Metropolitan Borough Council,

Please pass this on to the person who conducts Environmental Information Act 2004 reviews.

I am writing to request a reconsideration of Wirral Metropolitan Borough Council's handling of my FOI request 'papers for Hoylake Golf Resort call in (Business Overview and Scrutiny Committee) meeting held on the 7th December 2016'.

I am requesting a reconsideration of your decision to refuse this request dated 10th January 2017.

Turning to your first reason for refusal:

a) regulation 12(5)(b) legal advice privilege

The person making the request considers that this can only apply to part of the requested information (Wirral Council have not specified which page or pages in the range 15-136 you are referring to) and there would be parts of this (such as the name of the external lawyer/firm giving the advice) that would not be considered part of the advice.

Specifically 12(5)(b) refers to

"(5) For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that its disclosure would adversely affect—
...
(b) the course of justice, the ability of a person to receive a fair trial or the ability of a public authority to conduct an inquiry of a criminal or disciplinary nature;"

Specifically the public authority (Wirral Council) has not explained how disclosure of the legal advice would as Wirral Council suggests have "an adverse effect on the course of justice". To be more explicit, Wirral Council hasn't stated whether there is any ongoing or proposed litigation associated with the legal advice it has obtained or in relation to the decision it relates to.

Turning to the public interest test, there added factors in favour of disclosure.

a) that the decision makers are elected officials and are answerable to the public at election time,
b) without transparency about the legal advice the public can't know if the legal advice given to councillors may possibly be flawed, misleading or omit crucial information,
c) the legal advice is being used as justification to make decisions about expenditure of large amounts of public money

The requester disputes one of the factors given in favour of maintaining the exception namely "Without comprehensive legal advice, Council decision-making may be compromised because it would not be fully informed."

This is because releasing firstly the legal advice won't mean the Council is deprived of it. Secondly (as the decision-making has already been made at two previous meetings made prior to the date of the request) it can't compromise the Council's past decision-making process by releasing this information.

In relation to the second reason given in favour of maintaining the exception "Disclosure of legal advice could materially prejudice the Council’s ability to protect and defend its legal interests", the requestor requests that the Council is more explicit. For example when the Council commissioned the legal advice from a third party was there a contractural clause to state the legal advice couldn't be shared with third parties?

Wirral Council states that the information is not "in the public domain".

The requester respectfully refers Wirral Council to the draft minutes published on its website of this meeting at http://democracy.wirral.gov.uk/documents... .

As you can see from those 9 pages of minutes, which were approved as accurate at the Business Overview and Scrutiny Committee meeting held on the 24th January 2017, see here http://democracy.wirral.gov.uk/ieListDoc... , there was no resolution passed at the meeting held on the 7th December 2016 to exclude the press and public (although one was proposed by officers).

Therefore (as it is the period 6 years after the meeting being held), the report is open to public inspection (see Local Government Act 1972, s.100C(1)(d)). Also officer reports are part of the Council's Publication Scheme (see https://www.wirral.gov.uk/about-council/... in the heading "Agenda, reports and minutes" ). Matters in the publication scheme are required to be published, see Freedom of Information Act 2000, 19(1)(b). However this report has not been published!

The arguments about matters being in the public domain listed in the above paragraph also apply to the reason (given in Regulation 12(5)(e). Namely that it doesn't meet that test as the information is required to be in the public domain (to be more explicit both open to inspection and published).

For the above reasons, as well as the public interest arguments listed in favour of disclosure in the draft minutes here http://democracy.wirral.gov.uk/documents... , I would ask you to release the information requested following this review.

Thank you,

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

Yours faithfully,

John Brace

InfoMgr, FinDMT, Wirral Metropolitan Borough Council

1 Attachment

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

 

 

 

 

 

show quoted sections

References

Visible links
1. https://ico.org.uk/global/contact-us/
2. file:///tmp/Tel:0151
3. mailto:[Wirral Borough Council request email]

ScarletPimpernel left an annotation ()

Appealed to ICO for a decision notice on 13.3.2017.

Looking for an EU Authority?

You can request documents directly from EU Institutions at our sister site AskTheEU.org . Find out more .

AskTheEU.org