Strategic Acquisition Programme - Birkenhead Market (Cabinet papers 18/12/2017)

The request was refused by Wirral Metropolitan Borough Council.

ScarletPimpernel

Dear Wirral Metropolitan Borough Council,

On 18th December 2017 Wirral Council's Cabinet met in Committee Room 1 of Wallasey Town Hall.

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 103-110 of that Private Document Pack which is for the following agenda item:

"10 - STRATEGIC ACQUISITION PROGRAMME - BIRKENHEAD MARKET"

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

Lyon, Rosemary A., Wirral Metropolitan Borough Council

Dear  Mr Brace,

 

I refer to your email of 7 March in which you made the following request
for information:-

 

Dear Wirral Metropolitan Borough Council,

 

On 18th December 2017 Wirral Council's Cabinet met in Committee Room 1 of
Wallasey Town Hall.

 

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 103-110 of that Private Document
Pack which is for the following agenda item:

 

"10 - STRATEGIC ACQUISITION PROGRAMME - BIRKENHEAD MARKET"

 

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.

 

 

I refer to Regulation 7 (1) of the Environmental Information Regulations
2004. I reasonably believe that the complexity of the information
requested means that it is impracticable to comply with the request or
make a decision to refuse to do so within the period of 20 working days. I
am therefore extending the time for compliance with your request to 40
working days but hope to be in a position to give you a full response by
30 April.

 

Yours sincerely,

 

Rosemary Lyon,

Solicitor

Wirral Borough Council

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ScarletPimpernel

Dear Wirral Metropolitan Borough Council,

Please pass this on to the person who conducts Environmental Information Regulation reconsiderations.

I am writing to request a reconsideration of Wirral Metropolitan Borough Council's handling of my EIR request 'Strategic Acquisition Programme - Birkenhead Market (Cabinet papers 18/12/2017)'.

Thank you for your response to this request, referring to regulation 7(1) of the Environmental Information Regulations 2004 which can be read in full here http://www.legislation.gov.uk/uksi/2004/... .

Wirral Council state in their response "I reasonably believe that the complexity of the information requested means that it is impracticable to comply with the request or make a decision to refuse to do so within the period of 20 working days."

However regulation 7(1) states "the public authority may extend the period of 20 working days referred to in the provisions in paragraph (2) to 40 working days if it reasonably believes that the complexity and volume of the information requested means that it is impracticable either to comply with the request within the earlier period or to make a decision to refuse to do so."

As you can see the regulation only allows the public authority to extend the period where it reasonably believes that "the complexity and the volume of the information requested means that it is impracticable either to comply with the request within the earlier period or to make a decision to refuse to do so."

Although the belief referred to refers to the complexity, it does not also address whether Wirral Council also believes that the volume of the information requested means that it is impracticable to comply with the request.

As the request is for "a copy of pages 103-110 of that Private Document Pack" (which amounts to a total of 8 A4 pages) I do not believe it is reasonable to believe it is impracticable to respond to this request because of the volume of information requested.

I am therefore making this representation to Wirral Council (see regulation 11 http://www.legislation.gov.uk/uksi/2004/... ) and asking for a reconsideration of the decision to extend the time to respond to this request because of the authority's apparent failure to comply with the requirements of regulation 7.

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

Yours faithfully,

John Brace

Lyon, Rosemary A., Wirral Metropolitan Borough Council

Dear Mr Brace,

 

I refer to your email of 7 March, in which you made the following request
for information :-

 

Dear Wirral Metropolitan Borough Council,

 

On 18th December 2017 Wirral Council's Cabinet met in Committee Room 1 of
Wallasey Town Hall.

 

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 103-110 of that Private Document
Pack which is for the following agenda item:

 

"10 - STRATEGIC ACQUISITION PROGRAMME - BIRKENHEAD MARKET"

 

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.

 

I consider that the requested information is environmental information
under Regulation 2 of the Environmental Information Regulations
2004(“EIR”). I refer to my email of 9 April when the Council extended the
time for compliance with your request under Regulation 7, having regard to
the complexity of the information contained in pages 103-110 of the
Private Document Pack. I am aware that you made representations to the
Council concerning reliance on Section 7. I can confirm that pages 103-110
of the pack do contain complex commercial information concerning the
Council acquiring the long leasehold interest in Birkenhead Market on the
terms that are set out in the exempt report considered by Cabinet on 18
December 2017.

 

I consider that the exception contained in Regulation 12 (5)(e) of the EIR
applies to your request for information. 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
Information Commissioner’s guidance, “Confidentiality of commercial or
industrial information (regulation 12 (5) (e)” 20120516. Version:1.2.” I
have also had regard to the four-stage test, which was adopted by the
Information Rights Tribunal in Bristol City Council v Information
Commissioner and Portland and Brunswick Squares Association (
EA/2010/0012, 24 May 2010) .In order to come within the terms of the
exception it must be shown that:-

(1) The information in question is “commercial or industrial”;

(2) The information is subject to confidentiality provided by law;

(3) Such confidentiality is provided to protect “a legitimate economic
interest”;

(4) The disclosure of the information would adversely affect such
confidentiality

I consider that the information contained in Pages 103-110 of the Private
Document Pack in  is commercial information concerning the Council’s
 acquiring the long leasehold interest in Birkenhead Market. I also
consider that the information contained in pages 103-110 is subject to
confidentiality provided by law. The information is not trivial nor is it
in the public domain. Both the Council and the relevant third party are
entitled to protect their legitimate economic interests. I have had regard
to the sensitivity of the information at the date of the request.
Disclosure of the requested information would cause harm and  impact on
those legitimate economic interests. The Council has consulted with the
relevant third party who have indicated that disclosure of the requested
information would adversely affect such confidentiality and cause harm to
their legitimate economic interest. Paragraph 46 of the ICO guidance
provides :-“ If it is a third party’s interests that are at stake, the
public authority should consult with third party unless it has prior
knowledge of their views. It will not be sufficient for a public authority
to speculate about potential harm to a third party’s interests without
some evidence that the arguments genuinely reflect the concerns of the
third party.” The requested information  should not be put in the public
domain as it provides potential competitors an insight into the commercial
strategy adopted by the Council and the third party in respect of the
Council’s acquiring the long leasehold interest in Birkenhead Market,
which continues to be a live issue.

 

Public Interest Test

This exception is subject to the public interest test. Under Regulation 12
(2) of the EIR, the Council must apply a presumption in favour of
disclosure.

 

Factors in favour of disclosing the requested information

o Public interest in disclosure to promote transparency and
accountability of public authorities

 

Factors in favour of maintaining the exception

·       Inherent public interest in maintaining commercial confidences

o Disclosing the information would have an negative impact on both the
Council’s and the third party’s legitimate economic interests.
o Disclosing commercial information would undermine the third parties
relationship with the Council and also undermine the Council’s ability
to obtain commercial information in future.
o Wider public interest in preserving the principle of confidentiality.

 

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 exception contained in Regulation 12 (5)(e) of
the EIR.

 

You have the right to make representations in respect of this refusal of
your request for information, which should be addressed to

[1][Wirral Borough Council request email] in the first instance. You also have
the right to complain to the Information Commissioner . The address of the
Information Commissioner’s Office is:-

Wycliffe House,

Water Lane,

Wilmslow,

Cheshire SK9 5AF

Tel -0303 123 113

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

 

 

Yours sincerely,

 

Rosemary Lyon,

Solicitor.

 

 

This email and any files transmitted with it are confidential and intended
solely for the use of the individual or entity to whom they are addressed.
If you have received this email in error please notify the system manager.

References

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

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