Dear Ms Symington,

I would like to make a formal request under the Freedom of Information Act 2000. I am also making this Request under the Environmental Impact Regulations 2004 which require disclosure on the part of Local Authorities.

> I would like the Council to disclose the details of the agreement it has entered into with Pegasus for the Knowle site.

> I would like to see the full, unredacted version of the agreement.

> I understand that the information at issue would not be exploited by a competitor and that disclosure would not place either party at a commercial disadvantage.

> All parties, including Pegasus, will have known that they would be subject to the FOIA when the agreement was signed.

> To reiterate, I would like the full publication of the commercial terms of the agreement.

I would like you to provide me with all of the documentation I have requested:

> in their original electronic versions and not in their scanned versions.

Thank you.

I look forward to hearing from you.

Yours sincerely,

Jeremy Woodward

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 101000409965 .

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East Devon District Council

Dear Mr Woodward,

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

You asked for the following information:

1. I would like the Council to disclose the details of the agreement it has entered into with Pegasus for the Knowle site.
The actual contract detail, at this point in time, is commercially confidential and exempt from disclosure under Section 43(2) of the Freedom of Information Act and Regulation and/or 12(5)(e) of the Environmental Information Regulations. This is a live project subject to planning, development and the potential for further negotiation.

2. I would like to see the full, unredacted version of the agreement.
Please see above.

3. I understand that the information at issue would not be exploited by a competitor and that disclosure would not place either party at a commercial disadvantage.
The circumstances here differ from the ICO decision notice you effectively quote from in that you have requested detail about a conditional, not an unconditional or completed, contract. The disclosure of contractual detail at this point in time would, or would be likely to, prejudice the commercial interests of the Council in that it would present an advantage to other parties and / or a disadvantage to the council in terms of re-negotiating a deal for the Knowle should that circumstance arise.

4. All parties, including Pegasus, will have known that they would be subject to the FOIA when the agreement was signed.
Your view is noted.

5. To reiterate, I would like the full publication of the commercial terms of the agreement.
See above.

6. I would like you to provide me with all of the documentation I have requested in their original electronic versions and not in their scanned versions.
See above.

If you feel dissatisfied with our response to your request, please contact our Monitoring Officer to request an internal review at [email address]

You may also contact the Information Commissioner for advice at www.ico.gov.uk

Kate Symington
Information and Complaints Officer
East Devon District Council

01395 517417
www.eastdevon.gov.uk

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Dear Ms Symington,

Thank you for your replies - which I must contest:

1. I would like the Council to disclose the details of the agreement it has entered into with Pegasus for the Knowle site.
The actual contract detail, at this point in time, is commercially confidential and exempt from disclosure under Section 43(2) of the Freedom of Information Act and Regulation and/or 12(5)(e) of the Environmental Information Regulations. This is a live project subject to planning, development and the potential for further negotiation.

> This argument does not stand up. The Information Commissioner and Information Tribunal decided that the Council were required to publish documentation for a 'live project'.

2. I would like to see the full, unredacted version of the agreement.
Please see above.

> Ditto.

3. I understand that the information at issue would not be exploited by a competitor and that disclosure would not place either party at a commercial disadvantage.
The circumstances here differ from the ICO decision notice you effectively quote from in that you have requested detail about a conditional, not an unconditional or completed, contract. The disclosure of contractual detail at this point in time would, or would be likely to, prejudice the commercial interests of the Council in that it would present an advantage to other parties and / or a disadvantage to the council in terms of re-negotiating a deal for the Knowle should that circumstance arise.

> The argumentation you present is again spurious, as there are no 'other parties' than the Council and Pegasus.

> Moreover, the 'commercial confidentiality' reasoning does not stand up with regard to the Government's own stance on the transparency of contracts: http://www.localgovernmentlawyer.co.uk/i...

Before I "contact the Information Commissioner for advice" I am required to ask for an internal review: I would now like to take this step.

I look forward to hearing from you.

Yours sincerely,

Jeremy Woodward

Henry Gordon Lennox, East Devon District Council

Mr Woodward

 

Thank you for your email. I am sorry that you feel dissatisfied with our
response to your request.

 

You asked for a copy of the contractual agreement entered into between the
council and Pegasus for the Knowle site and we have refused to provide
this detail because, at this point in time, it is considered to be
commercially confidential and exempt from disclosure under s43(2) of the
Freedom of Information Act and/or regulation 12(5)(e) of the Environmental
Information Regulations.

 

You will understand that certain events have to occur before the sale to
Pegasus can be concluded. Should those events not happen then we may well
have to go back to negotiate with other parties (being those who were not
successful the first time around) or go back to the open market and in
either of those circumstance the Council’s position could be prejudiced by
the information you seek being in the public domain. So it is our view
that the disclosure of contractual detail and figures at this point in
time would harm the council’s interests should those circumstance arise
and we find ourselves in the position of having to re-negotiate or start
negotiations again.

 

It is important to note that the fact that the ICO / First Tier Tribunal
has previously required us to release certain information in respect of
this ‘live project’ does not mean that all information pertaining to the
live project should be released. Indeed in the case to which you refer, as
you well know, certain information was permitted not to be released on
grounds of commercial confidentiality. In addition you refer to a link to
the Local Government Lawyer which refers to advice issued by the Crown
Commercial Service. That guidance only applies to contracts advertised
after 1^st September 2015 and in any event only relates to certain bodies
– which does not include Local Authorities.  

 

As with all documentation relating to the re-location project, this detail
will be published at an appropriate project milestone.

 

Should you remain dissatisfied with our response to this request, you have
the right to refer the matter to the Information Commissioner whose
contact details can be found here [1]www.ico.gov.uk

 

Yours sincerely,

 

HENRY GORDON LENNOX

 

Monitoring Officer

East Devon District Council

Tel: 01395 517401

Ext: 2601

Email: [email address]

 

 

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References

Visible links
1. http://www.ico.gov.uk/

Dear Mr Gordon Lennox,

Thank you for your reply.

I shall be referring this to the Information Commissioner's Office.

Yours sincerely,

Jeremy Woodward

Dear Mr Gordon Lennox,

The Information Commissioner has now released its Decision Notice on Case: FER0626901
“Pegasus agreement re Knowle”

The ICO have asked the Council to publish the following, based on my original request:

“I would like the Council to disclose the details of the agreement it has entered into with Pegasus for the Knowle site.
I would like to see the full, unredacted version of the agreement.
I understand that the information at issue would not be exploited by a competitor and that disclosure would not place either party at a commercial disadvantage.
All parties, including Pegasus, will have known that they would be subject to the FOIA when the agreement was signed.
To reiterate, I would like the full publication of the commercial terms of the agreement.
I would like you to provide me with all of the documentation I have requested: in their original electronic versions and not in their scanned versions.”

To quote from the ICO website, which summarises the Decision Notice:

“East Devon District Council
25 October 2016, Local government (District council)
The complainant has requested a copy of an agreement between East Devon District Council and a developer, Pegasus Life, in relation to a site at Knowle. East Devon District Council refused the request, citing section 43(2) of the FOIA and regulation 12(5)(e) of the EIR. The Commissioner’s decision is that East Devon District Council has failed to demonstrate that regulation 12(5)(e) is engaged. The Commissioner requires the public authority to take the following steps to ensure compliance with the legislation. Disclose the requested information to the complainant.”
https://search.ico.org.uk/ico/search/dec...
https://ico.org.uk/media/action-weve-tak...

I would be grateful if you could let me know when and how you will be releasing this information.

I look forward to hearing from you.

Yours sincerely,

Jeremy Woodward

Henry Gordon Lennox, East Devon District Council

Dear Mr Woodward,

The Council is currently considering the ICO's decision notice and we will confirm our position in due course. You will note the timescales that have been set out in the Decision Notice.

Yours sincerely,

HENRY GORDON LENNOX

Strategic Lead (Legal, Licensing and Democratic Services) and Monitoring Officer
East Devon District Council
Tel: 01395 517401
Ext: 2601
Email: [email address]

show quoted sections

Dear Mr Gordon Lennox,
As I have not heard from you or the ICO today, Tuesday 22nd November, I can assume, therefore, that you will be publishing the documentation as stipulated in the Decision Notice.
> “Any Notice of Appeal should be served on the Tribunal within 28 (calendar) days of the date on which this decision notice is sent.”
(That is, if the District Council choses to take the case to the Tribunal, they have to do this within 4 weeks = Tuesday 22nd November deadline to declare that intention.)
> “The public authority must take these steps within 35 calendar days of the date of this decision notice.”
(35 days from the publication date Tuesday 25th October = 5 weeks = Tuesday 29th November deadline to publish the documentation.)
I would be grateful if you could confirm that you will be publishing the documentation over the next seven days – and that you will be providing me with this on this website as part of this thread.
I look forward to hearing from you.
Yours sincerely,
Jeremy Woodward

Dear East Devon District Council,

Thank you for providing me with the PegasusLife contract for Knowle which can now be viewed at: http://futuresforumvgs.blogspot.co.uk/20...

Yours faithfully,

Jeremy Woodward

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