Planning Application 17/05709/FUL - Pre-application advice

The request was partially successful.

Stephen Whiteside

Dear Croydon Borough Council,

I note from the Application Form that pre-application advice [ref 17/03563/PRE] was provided in July 2017, which apparently included the following comments:

1. Rear balconies at the upper floors must be removed.
2. Left double gable end is not encouraged-Recommendation for balconies both sides at the front elevation.
3. Front entrance should be increased in prominence.
4. Door for private garden at the front elevation must be removed.
5. Location of the refuse store and the cycle store must be swapped.
6. Unit 9 at the second floor has no main bathroom.
7. Request for larger windows to enable more natural light.
8. The building must be pushed forward to mitigate visual impact with 13 Briton Road.
9. Regarding the density the mix of units provided on site must be reduced.
10. The plans must provide a disable space and should be located close to the entrance.

Please provide any information relating to Mr Naylor’s advice, including but not restricted to copies of what was submitted by the applicant, the minutes of any meeting[s] and the officer’s advice letter[s] or email[s].

Yours faithfully,

Stephen Whiteside

Freedom of Information, Croydon Borough Council

 

Dear Mr Whiteside

 

Freedom of Information Request

 

Thank you for your recent request.

 

Your request is being considered and you will receive a response within
the statutory timescale of 20 working days, subject to the application of
any exemptions. Where consideration is being given to exemptions the 20
working day timescale may be extended to a period considered reasonable
depending on the nature and circumstances of your request. In such cases
you will be notified and, where possible, a revised time-scale will be
indicated. In all cases we shall attempt to deal with your request at the
earliest opportunity.

 

There may be a fee payable for the retrieval, collation and provision of
the information requested where the request exceeds the statutory limit or
where disbursements exceed £450. In such cases you will be informed in
writing and your request will be suspended until we receive payment from
you or your request is modified and/or reduced.

 

Your request may require either full or partial transfer to another public
authority. You will be informed if your request is transferred.

 

If we are unable to provide you with the information requested we will
notify you of this together with the reason(s) why and details of how you
may appeal (if appropriate).

 

Please note that the directorate team may contact you for further
information where we believe that the request is not significantly clear
for us to respond fully.

 

 

Yours sincerely

 

Joanne Welch-Hall

FOI Co-ordinator

Croydon Council

 

Information in relation to the London Borough of Croydon is available
at [1]http://www.croydonobservatory.org/. Also responses to previous
Freedom of Information requests can also be found on the following link

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Freedom of Information, Croydon Borough Council

2 Attachments

Dear Mr Whiteside

 

Freedom of Information Request

Please see attached the council's response to your Freedom of Information
request.

Yours sincerely

 

Ahtisham Riaz

FOI Coordinator

Croydon Council

 

Council services, online, 24/7 www.croydon.gov.uk/myaccount Download our
new free My Croydon app for a faster, smarter and better way to report
local issues www.croydon.gov.uk/app From 1 October 2015, it is a legal
requirement for all privately rented properties in Croydon to be licensed.
Landlords without a licence could face fines of up to £20,000. For more
information and to apply for a licence visit
www.croydon.gov.uk/betterplacetorent Please use this web site address to
view the council's e-mail disclaimer -
http://www.croydon.gov.uk/email-disclaimer

Stephen Whiteside

Dear Croydon Borough Council,

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

I am writing to request an internal review of Croydon Borough Council's handling of my FOI request 'Planning Application 17/05709/FUL - Pre-application advice'.

Redacted information

Your response [again] tells me that “Some information has been redacted as it held information relating to individuals… under Regulations 12(3) and 13 of the Environmental Information Regulations 2004”.

You [again] tell me that you have “… removed the name and email address of one council officer, as it has been the custom and practice for the Council to generally only release the names of staff down to ‘Head of Service’ level, which the Council considers meets the Transparency Code issued by the Secretary of State for Communities and Local Government.” You also [again] claim that this “custom and practice” is “….consistent with guidance issued by the Information Commissioner, including a Decision Notice issued in respect of a similar request FS50276863.”

You have made the same claims in your response to an earlier request [Your Ref EIR/CRT/10008433], to which I ask you to refer so that I do not have to repeat my challenge in full here.

https://www.whatdotheyknow.com/request/p...

I do however, set out below the main arguments contained, for your further and more thorough consideration in THIS case.

Environmental Information Regulations 2004 [EIR]

You have acknowledged that this request has been considered under the provisions of the Environmental Information Regulations 2004 [EIR] and the ‘presumption in favour of disclosure’ should therefore have been applied. I believe that the Council has neither shown WHY an exception is engaged in THIS case, nor carried out the Public Interest [PI] test required by the legislation.

Decision Notice - ICO Case Reference FS50276863

The ICO therefore does NOT adopt the simplified approach suggested by Croydon. Instead, the DN referred to illustrates that for a request - which is not a routine matter for which a ‘formula’ is the only practical approach - ALL 3 fairness tests - or factors* - listed by the ICO need to be applied, along with 3 supplementary factors. Their application must have specific regard to the situation.

The three factors ICO considers in judging fairness in disclosure:
1. the individual’s reasonable expectations of what would happen to their information;
2. the consequences of disclosure (if it would cause any unnecessary or unjustified damage or distress to the individual concerned); and
3. the balance between the rights and freedoms of the data subject and the legitimate interests of the public.
The supplementary factors that should be considered:
4. the seniority of the role
5. whether the role is public facing
6. whether the position involves a significant level of personal judgement and individual responsibility

‘Seniority’ is therefore only ONE of SIX factors that ICO guidance describes as needing to be applied and the Council has NOT demonstrated the weighing of ALL the six ‘factors’.

Local Government Transparency Code 2015 [DCLG]

Paragraph 6 explains “This Code ensures local people can now see ... how decisions are taken and who is taking them …”.

Paragraph 22 of the Code also usefully clarifies that “… Where information would otherwise fall within one of the exemptions from disclosure, for instance, under … the Environmental Information Regulations 2004 … Local authorities should start from the PRESUMPTION OF OPENNESS AND DISCLOSURE OF INFORMATION [my emphasis], and not rely on exemptions to withhold information unless absolutely necessary.”

Officers of the Council

Although I understand why the more senior employees are most likely to be in scope for the Code, that does NOT automatically 'eliminate' everyone else. It must depend on their role and the specific circumstances... and how the relevant ‘factors’ apply to those.

As the ICO makes clear, “… there is a public interest in fully understanding the reasons for public authorities’ decisions, to remove any suspicion of manipulating the facts, or ‘spin’. For example, this may well be a public interest argument for disclosing advice given to decision makers. …” I believe that those providing any such ‘expert’ advice to elected Members [at Committee] or senior officers [with delegated, decision making authority] should NOT expect their details to be withheld.

The Review

I believe this Council’s approach remains a form of “blanket redaction” and I do not agree that this position “…is consistent with guidance issued by the Information Commissioner …” and/or the “ Decision Notice issued in respect of … FS50276863]…”.

THIS request is being considered under the EIR and the ‘presumption in favour of disclosure’ should be applied. I believe the onus is [still] on the Council to clearly demonstrate WHY, in THIS case, it would be unfair to disclose the redacted information.

The following information should now be provided:
+++ The name [and official email address] of the officer [initially redacted] or the FULL reasons why the Council believes it should remain redacted, in the light of the relevant guidance from the ICO.

+++ Copies of the pre-application submission BY the applicant [drawings, correspondence, payment details etc], none of which has been provided to date.

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,

Stephen Whiteside

Derby, James, Croydon Borough Council

1 Attachment

Dear Mr Whiteside

 

Thank you for your email below requesting internal review of the
Environmental Information Regulations 2004 (EIR) response you were issued
by the Council on 11 January 2018; this relates to your request for
information dated 9th December 2017 regarding "application Form that
pre-application advice [ref 17/03563/PRE] was provided in July 2017". I
have now completed my investigation of your complaint; below is the
outcome of my investigation.

 

Regulation 5 of the EIR provides a general right of access to
"environmental information" held by a pubic authority subject however to
any exception as provided under Regulation 12 of the EIR. There is a
presumption of disclosure under the EIR. Under Regulation 2 "environmental
information” has the same meaning as in Article 2(1) of the Directive,
namely any information in written, visual, aural, electronic or any other
material form on—

(a) the state of the elements of the environment, such as air and
atmosphere, water, soil, land, landscape and natural sites including
wetlands, coastal and marine areas, biological diversity and its
components, including genetically modified organisms, and the interaction
among these elements". I note your request for information as contained in
your email of 9th December 2017 relates information about a pre planning
application, therefore it falls under the definition of environment
information.

 

On 11th January 2018 the Council provided you with the information you
requested but withheld disclosure of some names and email addresses from
you pursuant to the exception available under Regulation 12 (3) of the
EIR. Regulation 12 (3) EIR provides that "to the extent that the
information requested includes personal data of which the applicant is not
the data subject, the personal data shall not be disclosed otherwise than
in accordance with regulation 13".  Regulation 13 EIR provides an
exception to disclosure of information which constitutes personal data and
whose disclose will contravene any of the data protection principles as
provided in the Data Protection Act 1998 (DPA).

 

You have complained about the redaction of some names and email addresses
in the documents you were provided with; you stated that the decision to
exempt the information is not supported by relevant ICO Guidance and
Decision Notices.

 

To ensure a robust understanding of the issues in this internal review, I
have requested and sighted unredacted copies of the emails containing the
information that were redacted; I have also had discussions with relevant
officers in the Council and I have considered relevant ICO guidance notes
and Decision Notices. In particular, I have considered the ICO awareness
guidance titled "Requests for personal data about

public authority employees - Freedom of Information Act - Environmental
Information Regulations".

 

The names and email addresses that were redacted from the information
provided to you constitutes personal data under the DPA ( See Durant v
FSA). When a public authority receives a request for information that
constitutes personal data about its employees, it must decide whether
disclosure would breach Principle 1 of the Data Protection Act (the DPA),
i.e. whether it would be fair and lawful to disclose the information.

 

Whether the disclosure is fair will depend on a number of factors
including:

Whether

·         it is sensitive personal data;

·         the consequences of disclosure

·         the reasonable expectations of the employees; and

·          whether there is a legitimate interest in the public or
requester having access to the information and the balance between this
and the rights and freedoms of the data subjects.

 

From my perusal of the unredacted documents, the redacted names  were that
of an employee of the Council and a 3^rd party; my discussions with
relevant Council officers advises that the employee whose name was
redacted is a project officer in the planning team and provides
administrative support to the team.  I therefore do not consider the names
of the employee and 3^rd party as sensitive personal data.

 

The 3^rd party works for an outside organisation and I note there is a
general “confidential note” from the organisation that information
contained in the message is “legally privileged and confidential
information intended only for the use of the individual or entity named
above”. I do not think this confidential note meets the legal test for
confidential information particularly as it relates to the name and email
address of the employee of a 3^rd party organisation.; I would therefore
not consider whether the exception for confidential information under the
EIR is engaged.

 

According to the ICO awareness guidance titled "Requests for personal data
about public authority employees - Freedom of Information Act -
Environmental Information Regulations", “It may be fair to disclose the
names of people representing other organisations”. I note the name of
another employee from the 3^rd party organisation was disclosed as the
said name is in the public domain in relation to his work with the
council. I am of the view that the consequence of disclosure of the names
of the council employee and the employee of the 3^rd party organisation is
that the names will be available in the public domain especially as your
request is being made from the whatdotheyknow website which is a public
accessible website.

 

In conducting this review, I also need to consider the reasonable
expectations of the council employee and the employee of the 3^rd party
organisation; as mentioned above, the council employee is a project
officer in the council’s planning team who provides administrative support
to the planning team. According to the ICO guidance “Requests for personal
data about public authority employees”, “In assessing whether employees
can have a reasonable expectation that their names will not be disclosed,
key factors will include their level of seniority and responsibility and
whether they have a public facing role where they represent the authority
to the outside world. A junior employee whose name appears on an email
simply because they are organising a meeting or distributing a document
in an administrative capacity would have a reasonable expectation that
their name would not be disclosed”. I do not think there is a reasonable
expectation from the council employee who is a junior administrative
officer to expect his/her name to be disclosed in the current
circumstances.  I am also not persuaded there is a legitimate public
interest for the name of the council employee to be made available to the
public as this will contravene the employees right to privacy as provided
under the DPA and Article 8 of the Human Rights Act 1998.

 

Regarding the employee of the 3^rd party organisation I note the ICO’s
guidance which provides that “the more senior the representative of the
other organisation, the more likely it is that it would be fair to release
their names. Also, if someone normally acts a spokesperson for the other
organisation, disclosure of their name is more likely to be fair. This is
particularly the case when the other organisation is lobbying the public
authority in order to influence it; in such cases there should be a
general expectation that names will be released”. From the correspondence
I note that the employee of the 3^rd party organisation was attending a
meeting with the council on behalf of his organisation to discuss issue
relating to a planning application; I consider such employee would be a
relatively senior member of staff of that organisation with some powers to
make decisions on behalf of his organisation.

 

In conclusion, based on my respective observations above I am of the view
that:

 

1.       The name of the council employee being a junior employee was
rightly redacted from disclosure pursuant to regulation 13 of the EIR 
(See FER0409841 – {Department of Culture Media and Sport (DCMS)

2.       The name of the employee of the 3^rd party organisation was
wrongly redacted as I do not consider Regulation 13 EIR to be engaged.

3.       I hereby provided you with the name of the employee of the 3^rd
party organisation pursuant to your EIR request of 9^th December 2017.

 

if you remain dissatisfied with this decision, you may refer the matter to
the Information Commissioner’s Office.

 

The Information Commissioner can be contacted at: Information
Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9
5AF or at [email address].

 

James Derby

Corporate Solicitor

Legal & Democratic Services

Resources Department

London Borough of  Croydon

Bernard Weatherhill House

8 Mint Walk

CR0 1EA

Tel: 020 8760 6000 Ext. 61359

Fax: 020 8760 5657

 

 

show quoted sections

Stephen Whiteside

Dear Mr Derby

Your Ref: F/CRT/10008767

Unfortunately, your review of 24 January makes no mention of the following information which was omitted from the Council's initial response ... and which I specifically listed AGAIN when requesting the review:

"+++ Copies of the pre-application submission BY the applicant [drawings, correspondence, payment details etc], ...."

Please could you ensure that the above information is forwarded to this address without further delay.

Yours sincerely,

Stephen Whiteside

Derby, James, Croydon Borough Council

1 Attachment

Dear Mr Whiteside

I write further to your email below; I note you complaint that in my internal review, I made no mention of your request for copy of the pre planning application which was not provided to you in your initial EIR request.. as you may be aware a request for internal review is a complaint that the public authority has not dealt with their request for information properly. In your request for review dated 14th January 2018, you complaint about the Council redacting some information from the information you were provided. As this was the basis of your complaint it was this issue that I considered in my internal review of 24th January 2018.

I have perused your request for information contained in your email of 09 December 2017; I note you requested "any information relating to Mr Naylor’s advice, including but not restricted to copies of what was submitted by the applicant, the minutes of any meeting[s] and the officer’s advice letter[s] or email[s].". I understand this relates to a pre planning application ref 17/03563/PRE, 11 Briton Hill Road, South Croydon CR2 0JG that was submitted to the Council.

The Environmental Information Regulations 2004 (EIR) give rights of public access to information held by public authorities. The EIR (just as in the Freedom of Information Act) covers and is only applicable to any recorded information that is held by a public authority in England, Wales and Northern Ireland. According to the ICO "recorded information includes printed documents, computer files, letters, emails, photographs, and sound or video recordings". (See https://ico.org.uk/for-organisations/gui....

Regulation 2 (a) of the EIR defines environmental information as "any information in written, visual, aural, electronic or any other material form on—

(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements". Your request for copy of pre planning application relates to the environment and land; it is therefore a request to be processed under the EIR.

Under the EIR, once the public authority confirms that the information requested is held, there is a presumption to disclose the information subject however to any applicable exceptions under the EIR. Following your email below I made enquiries with the Council's planning team and I was advised the Council holds information relating to the pre planning application ref 17/03563/PRE.

As stated above, under the EIR, where the information requested is held by the public authority, there is a presumption of disclosure subject to any applicable exception.

Regulation 12(5) (f) of the EIR states that information can be withheld where its disclosure would have an adverse effect upon:

(f) the interests of the person who provided the information where that person –
(i) was not under, and could not have been put under, any legal obligation to supply it to that or any other public authority;
(ii) did not supply it in circumstances such that that or any other public authority is entitled apart from these Regulations to disclose it; and
(iii) has not consented to its disclosure;

Applying the above exception to the facts of your request, I understand the information in the pre planning application was submitted on a voluntary basis to the Council as a pre planning advice request and that the Council does not have the right to require the applicant to provide this to it as no formal application had been made by the developer at the time.

Further, I understand the applicant for the pre planning application would have submitted the request for advice on the expectation that he information would not be disclosed more widely by the council as pre planning applications are not subject to the normal formal reporting of plans as planning applications are.

I am advised the applicant was contacted by the planning team and asked if the pre planning application could be disclosed; I understand the applicant did not consent to the information being disclosed as they believed the information were provided to the council under a duty of confidentiality and it also contains commercially sensitive information.

In view of the above, I am satisfied that all of the criteria for Regulation 12(5)(f) EIR have been met and the exception is engaged.

Regulation 12(1) EIR requires the Council to carry out a public interest test to ascertain whether the information should be disclosed In spite of the exception being engaged. The test is whether the public interest in the exception being maintained outweighs the public interest in the information being disclosed. If it does not then the information should be disclosed in spite of the exception being engaged. "The central public interest in the exception being maintained is that individuals and organisations should be able to seek advice from their
planning authorities on a confidential basis for ideas that they have for potential future developments free from the public eye initially. A pre planning advice request is a way for developers to ‘test the waters’ as regards particular types of developments in particular areas. They can also receive advice as to what the issues would be likely to be prior to drawing up formal plans for approval, thereby saving time and money themselves, but also time and costs to the council by lowering the issues that a formal application might raise. The public has a right to object to planning issues once formal planning applications are submitted for approval. They therefore do have a forum in which to register their objections to planning applications, and these will be taken into account when planning applications are being considered. Prior to that time however developers should be able to seek informal
advice from authorities without disclosing their development plans to their neighbours or to their competitors. In many cases pre planning applications may result in no formal applications being submitted, or significantly different plans being submitted. A disclosure of the information prior to the formal applications being received may therefore result in objections being received to plans which are never formally submitted. This would waste both council time dealing with the objections, as well as potentially causing concerns to neighbours or neighbouring properties and, potentially, for some developments affecting house values in the . A disclosure of pre planning advice requests would also potentially alert commercial competitors to early development plans within the area" (SEE ICO DECISION NOTICE FER0496223 - EAST DEVON DISCTRICT COUNCIL)

The central public interest in the information being disclosed is to create transparency about the advice provided by the council to the developer. As noted above a disclosure will also provide assurances of probity in planning decisions where planning applications are subsequently submitted.

The Council is required to make a decision on disclosure of the information based upon the circumstances of the case as the time of the EIR quest or internal review. I am advised on 16th November 2017, the applicant submitted a full planning application for the premises ref 17/05709/FUL.. In line with the ICO Decision cited above, the appropriate time for a pre planning information to be published is likely to be at the time the formal planning documents are published. The Local Government Association in its guidance "Probity in Planning for Councillors and Officer" published in April 2013 has recommended that in order to increase transparency on pre planning advice provided by planning authorities, pre planning advice should he recorded and published unless there is a reason for the information to be confidential.

In conclusion, it is my view that sine a formal planning application has been submitted, the Council should disclose the pre-planning advice issued to the applicant in the pre planning application. I hereby attached herewith for your information the pre planning advice issued by Mr Naylor. I note the drawings submitted with the pre planning application (with slight amendments) have now been submitted as part of the formal planning application. The formal application has been published on the Council's website http://publicaccess2.croydon.gov.uk/onli.... I therefore do not see the public interest in disclosing the drawings again.

I trust you find this satisfactory, if you however remain dissatisfied with this decision, you may refer the matter to the Information Commissioner’s Office.

The Information Commissioner can be contacted at: Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF or at [email address].

James Derby
Corporate Solicitor
Legal & Democratic Services
Resources Department
London Borough of Croydon
Bernard Weatherhill House
8 Mint Walk
CR0 1EA
Tel: 020 8760 6000 Ext. 61359
Fax: 020 8760 5657

show quoted sections

Dear Mr Derby,

You have told me that the Council has invoked exception 12(5)(f) in relation to my request for information pertaining to the provision of pre application advice. You have then applied a Public Interest Test and concluded that you should release pre application advice that I requested. However, whilst acknowledging that "slight amendments" have been made to drawings submitted as part of the pre application process, you conclude that it would not be in the Public Interest to disclose these.

The Design and Access Statement submitted with the 'full' planning application, lists [at page 22] examples of how the design had been AMENDED to address the concerns expressed by officers in the pre-application advice. The list reads as follows:
- The rear balconies from the left side have been removed and Juliet Balconies have been introduced in order to mitigate overlooking issues (Unit 4,7) as recommended.
- The left double gable has been removed- balconies in both sides at the front elevation have been introduced as recommended.
- The front entrance has been increased in prominence.
- The door for the private garden has been removed to the flank elevation as recommended.
- The position of the refuse store has been changed in order to be closer to the front elevation as recommended.
- The main bathroom has been introduced at the second floor (Unit 9).
- The width of the windows has been enlarged from 900mm to 1100mm.
- The building has been pushed forward 1200mm, and 1500mm to the right in order to mitigate visual impact as recommended.
- We reduced the 3 bedrooms from 4 to 1 and the density from 240 to 209.
- We have provided disable space close to entrance as recommended.

These are NOT "slight amendments" and in any case, my request was for copies of the documents and NOT for the Council's 'interpretation' of them.

Your response is silent as regards other aspects of my original request and it is unclear what else, if anything, has been withheld e.g. I asked for: copies of what was submitted by the applicant [drawings, correspondence, payment details ] and the minutes of any meeting(s) etc. However, I do have very strong grounds to believe that additional information HAS been withheld.

The Council's response to another FOI request , regarding a pre-application submission made by the same Applicant [apparently on the very same day] regarding a different site [Your Ref:17/03554/PRE] includes the following information:

- The Applicant's cover letter,
- a completed Request for Pre-Application Advice form, which answers "No" to the question "Do you wish the Council to treat pre-application information relating to the advice as confidential?",
- several references to the pre-application meeting regarding THIS submission [Your Ref: 17/03563/PRE] , and
- notes of the [or a] pre-application meeting regarding the relevant submission.

Details of the other FOI request referred to above can be found here: https://www.whatdotheyknow.com/request/p... [see page 83 of "attachment.pdf"]

Copy of the standard 'Request for Pre-Application Advice' form can be found here: https://www.croydon.gov.uk/sites/default...

EXCEPTION 12(5)(f)
You explain that the information you have considered, was submitted on a voluntary basis and that the Council had no separate right to require the information. You also explain that following enquiries by the planning team, the information provider ‘believed’ the Council owed a duty of confidentiality AND that ‘…it also contains commercially sensitive information’. As indicated above you are not specific about what aspects of my request you are referring to.

As shown above, the information provider was CLEARLY aware of the Council’s procedure at the time of seeking THIS pre application advice. That procedure states:

“If you wish us to treat pre-application material as confidential, then you will need to set out the reasons why and for how long any information needs to remain confidential. This statement should make reference to the provisions in the EI Regulations, particularly Regulation 12(5)”.

The ICO has made clear that it is not sufficient to merely rely upon the applicability of the qualifying conditions you refer to, in order to engage an exception. Specifically ICO has said:

“Whilst recognising that both confidentiality and voluntary supply of information are relevant factors in determining if the requested information falls within the scope of Regulation 12(5)(f), the Regulations and guidance clarify that these are NOT a sufficient basis to ‘engage’ the exception, in the absence of a causal link being established between an “adverse effect” and disclosure. "

Indeed, the Information Commissioner has also clarified that he considers: “… since the passing of the EIR, there is no blanket exception for the withholding of confidential information…”.

[Source ICO Decision Notice - FER0601794]

Regulation 14(3) places a burden on the Council to “… explain the adverse effect it believes would result from disclosure, and exactly why disclosing the requested information would result in that adverse effect”.

In meeting this burden, ICO guidance makes clear that the “adverse effect” test sets a much higher bar than merely determining whether the information was initially submitted in confidence. There is a requirement for the Council to demonstrate that “…disclosure would, on the balance of probabilities, directly cause the harm"

[Source: ICO Guidance Regulation 12(5)(f)]

PUBLIC INTEREST TEST

I won’t comment in detail on the Public Interest Test you have applied since you have not, in my view and as explained above, demonstrated that ‘harm’ would arise from disclosure, to the standards required by the ICO. [A Public Interest test applies ONLY under such circumstances].

However, I do note that:

a. You concluded that the there was a Public Interest in disclosing ‘the pre application advice issued by Mr Naylor’, and that your assessment correctly reflected that a full planning application had already been published at the time of my request; and
b. In relation to the drawings submitted as part of the formal planning application, which you acknowledge have been amended prior to submission of the final application, you concluded that it is NOT in the Public Interest to release these original drawings. You do not disclose how the Council has ‘weighed-up’ its PI arguments against an adverse effect, and no balance is given to the Public Interest issues considered. Specifically, PI arguments in favour of disclosure are not considered.

Unless and until an ‘adverse effect’ is demonstrated, the presumption in favour of disclosure applies to the information [including the drawings] and the exception is not demonstrated to be properly engaged. Any application of exception 12(5)(f) to the information held must be justified with an explanation of the ‘harm’ caused by release should then (and ONLY then) be followed by a balanced weighing up of the Public Interest arguments.

PLEASE CLARIFY:

- What information is held by the Council that relates to this request (having regard to my comments above).
- What information has been withheld pursuant to Regulation 12(5)(f), or for any other reason
- What ‘adverse effect’ has been assessed by the Council in relation to each item of withheld information, having regard to Regulation 14(3) and ICO’s detailed guidance on this matter
- The Public Interest Test specific to any withheld information.

YOUR RESPONSE TO THIS WILL DETERMINE WHETHER I MAKE A COMPLAINT TO THE INFORMATION COMMISSIONER AND THE SCOPE OF ANY SUCH COMPLAINT.

I would prefer not to unnecessarily take up the ICO’s time, which is why I am putting these points to you in the first place and would be grateful for your prompt attention.

Yours sincerely,

Stephen Whiteside

Stephen Whiteside

Dear Croydon Borough Council,

Your Ref: F/CRT/10008767

For information, I have now submitted a complaint to the Information Commissioner about the Council's handling of this request.

Yours faithfully,

Stephen Whiteside

Stephen Whiteside left an annotation ()

Croydon Council Ref : F/CRT/10008767

My complaint has been accepted as eligible for further consideration by the Information Commissioner and given Case Reference Number FER0735334.

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