Dear Cumbria County Council,

I am writing to you under the Freedom of Information Act 2000 and/or the Environmental Information Regulations 2004 to request the following information in relation to the above.

1. Please provide all correspondence and meeting minutes of the pre-application discussions between Cumbria County Council and the applicant concerning the 1/18/9012 planning application.

2. Please provide any covering correspondence included with the 1/18/9012 planning application.

3. Please provide any attachments or enclosures included with the 1/18/9012 planning application that are not available for public download on planning.cumbria.gov.uk under 1/18/9012.

4. Please provide copies of all correspondence and meeting minutes of any post-application discussions between Cumbria County Council and the applicant concerning 1/18/9012. Please include all correspondence and meeting minutes both before and after the granting of planning permission. In order to reduce the amount of information that needs to be sent, any information provided under FOI-5683-2020 in relation to the proposed non-material amendment to 1/18/9012 can be omitted.

Thank you for your time and I look forward to your response.

David Mudge

Dear Information Governance,

This Freedom of Information Request/Environmental Information Regulations request is overdue. I appreciate Covid-19 is causing extra work so I allowed extra time before following up on my request. I telephoned to remind the council that my request had not been answered and I was told the department concerned would be contacted. I still have not received the information.

Please investigate and let me know the reason for the delay. Please also let me know when I can expect a reply to my request.

Yours sincerely,

D Mudge

Dear Cumbria County Council,

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

I am writing to request an internal review of Cumbria County Council's handling of my FOI request 'Planning Application 1/18/9012: Kingmoor Energy from Waste Facility'.

My request is long overdue. By law, Cumbria County Council should have responded by now.

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,

D Mudge

Dear Cumbria County Council,

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

The information provided in Cumbria County Council's response to my FoI request does not appear to be complete.  Please provide the missing information or state that Cumbria County Council does not hold the information.  Email logs may help to find additional email information.

Please conduct an internal review of the information provided and consider the following points.

1. Point 1 of the request was for "correspondence ... between Cumbria County Council and the applicant".  The FOI response only shows the correspondence from the applicant to Cumbria County Council and not correspondence from Cumbria County Council (including officers, managers, directors and elected councillors) to the applicant.  Please include all communications from Cumbria County Council to the applicant (including to the applicant's agents).

2. The FoI response states "Correspondence relating to legally privileged information has been excluded."  The FoI response goes on to say "The public interest argument in favour of disclosure considered in relation to this case is to maintain safeguarding openness, transparency and accountability in communications between client and lawyer to ensure access to full and frank legal advice."  Since the FoI request concerns the communications between Cumbria County Council and the applicant of 1/18/9012 (and not the communications between a client and lawyer), it is unclear how any of the information can be considered to be "legally privileged".  Please provide all information withheld by Cumbria County Council as "legally privileged" or, for each item withheld, please disclose as much information as possible including, for example, when the communication of such legally privileged information took place, between whom (names can be redacted but please include organisation names and roles) the context of that information and any other information in these communications that is not considered legally privileged.

3. The FoI request explicitly requested "any covering correspondence included with the 1/18/9012 planning application" but no such correspondence was included in the response.  If not held, please confirm that no covering correspondence with the 1/18/9012 planning application is held by Cumbria County Council.

4. The FoI request explicitly requested "any attachments or enclosures included with the 1/18/9012 planning application that are not available for public download on planning.cumbria.gov.uk under 1/18/9012."  Please provide these attachments or enclosures or confirm that Cumbria County Council does not hold this information.

5. The FoI request explicitly requested "copies of all correspondence and meeting minutes of any post-application discussions between Cumbria County Council and the applicant concerning 1/18/9012" with the provision that information provided under FOI-5683-2020 need not be included.  Please confirm that Cumbria County Council does not hold any other information applicable to this request.  If information is held, but has been redacted, please state this and provide as much information as possible, e.g. dates of emails, organisation names and roles and why the particular information has been redacted.

6. The "Kingmoor EfW.pdf" email from the applicant's agent in the FoI response refers to a meeting that took place on 22 November 2017.  The FoI request included "meeting minutes of the pre-application discussions" so please include the minutes (or other notes) of the meeting of 22 November 2017 if held (or, if not held, please state that no minutes or notes are held).

7. Please include the correspondence that led to (and followed) the meeting on 22 November 2017 (including any documents/attachments) that may form part of that correspondence, or that may have been submitted at the meeting on 22 November 2017.  If none are held, please state that none are held.

8. The file "Scoping Opinion.pdf" has been included but the covering communication has not been included, nor have the communications that preceded this Scoping Opinion.  Please provide all such correspondence or state that no such information is held by Cumbria County Council.

9. The email from Stephenson Halliday dated 5 December 2018 ("Kingmoor ERF Carlisle.pdf") refers to "our meeting following the DCR meeting" which strongly suggests that the author of the email (the Stephenson Halliday Planning Director) met with the Cumbria County Council officer between the DCR meeting (presumably the DCR meeting of 14 November 2018) and the date of the email (5 December 2018).  The request included "all correspondence and meeting minutes" so please include any other correspondence, meeting minutes or notes held by Cumbria County County regarding this meeting between Stephenson Halliday and Cumbria County Council.  If no other information is held by Cumbria County Council regarding this meeting, please state that no other information is held.

10. The documents included in the response include "RE Kingmoor ERF 1.pdf", "RE Kingmoor ERF 2.pdf" and "RE Kingmoor ERF 4.pdf".  This suggests that there is likely to be a document "RE Kingmoor ERF 3.pdf" but no such document has been included.  Please include these missing communications or explain why "RE Kingmoor ERF 3.pdf" is missing.  If information is held, but has been redacted, please state this and provide as much information as possible, e.g. dates of emails, organisation names and roles and why the particular information has been redacted. 

11. The information in the FoI response refers to a number of telephone conversations but no records of telephone conversations were included in the FoI response other than in the text of the included emails.  Please include the record of those telephone conversations or state that no records of telephone conversations are held by Cumbria County Council other than the references made in the various emails.

12. The email "RE 1189012 Verus.pdf" suggests that there is likely to have been further communication between Stephenson Halliday and Cumbria County Council regarding the email from Lowry Hill Residents Association forwarded by Cumbria County Council on 14 January 2019.  Please provide the email(s), or telephone conversation notes, concerning this communication, or confirm that Cumbria County Council holds no further information regarding the communication between the applicant (or the applicant's agent(s)) and Cumbria County Council in relation to the Lowry Hill Residents Association email forwarded by Cumbria County Council on 14 January 2019.

13. The email "Kingmoor ERF planning application.pdf" dated 17 October 2018 refers to the "Queries raised by CRAIN" and states "we will provide a response to these queries as soon as possible".  The email with these queries raised by CRAIN was presumably sent by Cumbria County Council to the applicant and is missing from the FoI response.  The FoI response does include the attachment "Letter to CCC for issue.pdf" which is presumably the attachment to "RE Objections to 1189012 2.pdf" dated 6 December 2018.  The content of "Letter to CCC for issue.pdf" appears to be in response to the CRAIN objections submitted on 1 November 2018 although the communication between Cumbria County Council and the applicant containing these objections has not been included in the FoI response.  Since the FoI response contains no other communications in relation to the "Queries raised by CRAIN" and since the applicant said that they would provide a response to these queries, please confirm that Cumbria County Council holds no other response from the applicant in relation to the CRAIN questions and objections referred to in the email "Kingmoor ERF planning application.pdf" dated 17 October 2018.

14. No correspondence between councillors and the applicant (or agent(s) of the applicant) with regard to 1/18/9012 have been included.  Please provide such correspondence or state that Cumbria County Council does not hold any such information. 
 
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,

D Mudge

Dear Information Governance,

I note that Cumbria County Council’s document “Internal Review Procedure, Data Protection Act 1998, Freedom of Information Act 2000, Environmental Information Regulations 2004, Corporate Complaints and Information Compliance” dated January 2017 states:

“The Information Commissioner’s view is that a reasonable time for completing an internal review is 20 working days from the date the request for review is received. Where it is not possible to complete the internal review within this time the requester will be informed in writing within the 20 day deadline and told when they can expect a full response.”

More than 20 working days have passed since the date of my request. I have not been informed when I can expect a full response.

Please respond with the result of the internal review without further delay.

Thank you in advance for your attention to this matter.

D Mudge

Dear Cumbria County Council,

Thank you for the results of your Internal Review.

Point 2 of your response states:
"2. Correspondence seeking legal advice between the investigating officer and solicitor/legal team does fall within the Legal Professional Privilege exemption. Therefore all email correspondence which contains such advice has been withheld under section 42 from the disclosure. We have however provided emails within the trails that do not contain any legal advice. Please see attached documents."

LPP does allow confidential communications between lawyers and clients to be withheld, but legislation as expounded in ICO guidance (https://ico.org.uk/media/1208/legal_prof...) limits when and what information can be withheld.

DATES, TIMES AND DESTINATIONS OF EMAILS
Cumbria County Council's FOI response states:
"… all email correspondence which contains such advice has been withheld under section 42 from the disclosure."

This is not an appropriate application of section 42. Section 42 only relates to LPP information and cannot be used as a reason for withholding "all email correspondence". Such "email correspondence" should be disclosed (including dates, times etc.) even if some information within that email correspondence is redacted under section 42.

CONDITIONS NECESSARY FOR THE APPLICATION OF LPP
ALL of the following would have to be true for the Cumbria County Council to be able to justify non-disclosure on the grounds of LPP:

1. The third party communications would have needed to have taken place “for the purposes of preparing for litigation” rather than some other reason such as the communication or determination of “legal advice”.
2. Communications would have to claim LPP.
3. It must be in the public interest for the information to be withheld.

Considering each of these in the following sections.

ADVICE OR PREPARATION FOR LITIGATION?
ICO Guidance makes the distinction between "advice privilege" and information obtained for litigation reasons. The case of Bellamy v the Information Commissioner and the Secretary of State for Trade and Industry (EA/2005/0023, 4 April 2006) shows exchanges between clients and third parties can be withheld "if such communications or exchanges come into being for the purposes of preparing for litigation". Questions had been raised regarding the council’s use of section 73 (the email “Legal Concerns re.1 18 9012.pdf” refers to “legal concerns”) but, prior to Cumbria County Council's granting of 1/18/9012, no decision had been taken on which a third party could litigate. The advice received by Cumbria County Council therefore falls into the “advice privilege” category rather than the “preparation for litigation” category because the council was considering the lawfulness of consenting to the proposed changes under section 73.

Paragraph 13 of the ICO Guidance states:
"Communications with third parties are not covered by advice privilege and are only covered by litigation privilege if they have been made for the purposes of the litigation". Since there was no litigation, the Bellamy v the Information Commissioner and the Secretary of State for Trade and Industry (EA/2005/0023, 4 April 2006) exemption applying to third party disclosure does not apply. Furthermore, even if Cumbria County Council considered that litigation was taking place, Cumbria County Council would not need to discuss any confidential legal advice received with the applicant, because any litigation would have concerned the lawfulness of Cumbria County Council's actions, not those of the applicant.

Paragraph 14 of the ICO Guidance applies this principle requiring the release of information to third parties to an authority's employees saying that not all an authority's employees can be expected to have advice privilege. If employees are not covered by advice privilege, Cumbria County Council cannot claim that this privilege applies to a third party such as the planning applicant and their agent(s).

The communications with the applicant should therefore be disclosed because LPP cannot be considered to apply to the County Council’s communications with the applicant.

EMAILS DO NOT CLAIM LPP
Cumbria County Council made no claim in the email to Stephenson Halliday of 5 March 2018 that the communications were legally privileged. The information from Ruth Stockley QC attached to this email appears, from the text of the email, to be generic in nature and not obtained in relation to the specifics of this planning application. This information cannot therefore constitute "legal advice". The reference in the email of 5 March 2018 to the possibility of taking "Counsel's advice" also shows that the information received up to that point cannot be considered "advice" in the LPP sense.

Similarly, the response from Stephenson Halliday dated 8 March 2018 makes no claim of "legal advice" or LPP privilege. The attachment to this email should therefore have been included in the County Council's disclosure to the information request.

Paragraph 41 of the ICO Guidance shows LPP privilege in correspondence, even during litigation, is very limited. ICO Guidance makes it clear that simply referring to information as "without prejudice" should not be taken as meaning LPP applies.

Even if the communications were to be considered to relate to litigation, and even if such communication was considered subject to LPP, and even if the County Council considered that it had a legitimate reason for sharing confidential information with a third party (who would not have been the subject of the litigation), all communications (including attachments) which do not include a clear claim for LPP should still be disclosed.

PUBLIC INTEREST TEST
Withholding information under LPP is qualified and subject to a Public Interest Test. Cumbria County Council's response to this FOI does not indicate that a Public Interest Test has been applied.  In the case of Bellamy v Information Commissioner & the Secretary of State for Trade and Industry (EA/2005/0023, 4 April 2006), the tribunal decided that "at least equally strong countervailing considerations would need to be adduced to override that inbuilt public interest".  No countervailing considerations have been stated by Cumbria County Council yet there are very strong Public Interest reasons for the disclosure of this information.

The Council has given no reasons why it would be in the public interest to withhold it's communications with a planning applicant (including information that it has freely given to the planning applicant) from the public.  The Freedom of Information act includes a presumption in favour of disclosure.  It is hard to imagine any adequate justification for withholding information from the public that the County Council has been prepared to share with the applicant of a planning application.

Compelling public interest reasons for disclosure include:
1. The controversial nature of this planning application.
2. The local relevance of the planning application, because increased air pollution is harmful to public health and because the location is considered by residents to be close to workplaces, schools and people’s homes.
3. Regional relevance, because the application may result in significant quantities of waste being transported into Cumbria, and because visibility of Cumbria County Council’s handling of planning applications is of regional relevance.
4. National relevance, because incineration contributes to climate change and there are reasons to consider it harmful to recycling. It also destroys resources and increased incineration adds to incineration over-capacity in the UK – all matters of national relevance.
5. The planning application was opposed by many and the concerns raised included the council’s use of section 73. Local residents said that their County Council was not giving adequate attention to their objections.
6. The email of 5 March 2018 in the FOI response shows that it was not only residents who were concerned about the council’s use of section 73: Phil Greenup, Senior Manager, CCC is reported to be "somewhat nervous of the S73 approach".
7. Cumbria County Council’s handling of the planning application has been controversial with residents reporting problems and Cumbria County Council admitting "errors".
8. Local confidence in the Cumbria County Council’s planning process has been damaged by the unexplained and uncorrected errors.
9. Local opposition continues with much concern over the County Council's planning processes and "errors".
10.There has been significant local press coverage including of the council's handling of the 1/18/9012 planning application.
11. A unanimous vote by Carlisle City Council to oppose the incinerator.
12. The promise by the County Council Senior Manager for Environment and Regulatory Services of a future meeting with interested residents is a recognition by Cumbria County Council of the significant public interest.
13. Transparency requires disclosure.
14. Accountability requires disclosure.
15. Restoration of public confidence and trust in the planning process, the County Council, local government and the democratic process.
16. To promote public understanding.
17. To encourage good decision making by the County Council.
18. To ensure that public bodies are carrying out their duties within their legal powers.
19. Upholding integrity.
20. Ensuring justice.
21. Ensuring fair treatment.
22. Protection of the environment.
23. Since “errors” have been made, to ensure lessons are learnt.
24. Since “errors” have been made, to ensure consideration can be given to the correction of these errors wherever possible.
25. To enable an understanding of the relationship between the Council and planning applicants so that the way in which applications are handled can be seen to be fair.
26. To enable an understanding of the Council’s treatment of residents’ concerns so that the way the Council considers those concerns can be seen to be fair.

TIMELY RESPONSE
This FOI request is long overdue. It is in the public interest that further delays in the processing of this request be avoided, not just for the restoration of trust, but also because these matters show whether Cumbria County Council is willing, or not, to address problems and "errors", and willing, or not, to withhold information from the public. Such matters are important for the public's consideration, between now and 19 April 2021, because of the county's unitary authority proposals.

SUMMARY
Any legal advice in the emails to the applicant should be disclosed because: there was no litigation in progress; LPP cannot be claimed for “legal advice” to third parties; there is no clear reason for the sharing of confidential legal information with the applicant; there is no indication that LPP was claimed in the communications; there are very strong public interest reasons for disclosure; and no countervailing considerations have been given that exceed the strong public interest reasons for disclosure.

I therefore request that Cumbria County Council release all communications with the applicant in full and without further delay.

Your sincerely,

David Mudge