Dear Stockport Metropolitan Borough Council,

Re Planning Application Vale Road - DC/054388

1.Please supply copies of all communications both internally and externally made and received at SMBC in whatever format inclusive of emails and any minutes / notes from council meetings, committee meetings from the 1st January 2012 to the date of this request on the matter of the planning application DC/054388, which will include the following individuals but is by no means an exhaustive list - Patrick and Jason Jeffries, Steve Johnson, Cathy Hodgson, Kevin Brooks, Andy Kippax, Steve Leonard, Chris Munby, Lindsay Grey, SMBC Executive, Heatons & Reddish Area committee members & any other officers or councillors at SMBC? Copies of documents regarding this proposal on your planning portal are not required as they are in the public domain and they are available by other means.

2.Can you please supply the date on which the Jefferies family or current owner (s) purchased the 1.952 hectare site?

3.Who was the previous owner of the site?

4.Do SMBC intend to purchase the site back from the current owners either in the current period or in the future?

In view of the fact that FOI requests are to be answered within 20 days but also more importantly promptly and cognisant of the fact that SMBC have only given concerned respondents until 7th February to respond, may I please impress upon you to respond very swiftly please?

Yours faithfully,

Rory Connor

Dear Stockport Metropolitan Borough Council,

May I ask you one more additional question with reference to my FOI request of the 30th January 2014?

Can you please give the fullest of details of what SMBC would incur cost wise to the Government with regards to the Gorsey Bank Site to enable it to be utilised as a site for Travellers?

Yours faithfully,

Rory Connor

Dear Stockport Metropolitan Borough Council,

May I please ask you for the courtesy of an acknowledgement to my request of the 30th January 2014 please?

It is my understanding that public bodies normally acknowledge an FOI request within a couple of days.

Yours faithfully,

Rory Connor

Dear Simon Oldfield,

Thank you for your acknowledgement.

May I ask you please to include the reference number that you have stated was contained in your letter of 10th February 2014?

Yours sincerely,

Rory Connor

Dear Mr Oldfield/SMBC,

I have today noticed with complete incredulity the way you have responded yesterday to a requester who has made a similar request to mine.

You have stated to that requester that you will not supply the request citing qualified exemption 43(Commercial Interests) which I will assume you mean to be 43 (2) of the FOI as 43 (1) is for trade secrets.

You have engaged 43 (2) to the whole of the request referenced as No.8303.

As my own request is gradually moving towards the 20 day mark, I am therefore very mindful that SMBC may respond to my request here with a similar approach.

Therefore, I would like to assist you with my request by setting out before you the following:

a) If it is going to impede my full request in any way at all, then I have no need to see any names referenced in any of the documents requested and these can be redacted if you feel it necessary in order to protect data as per the DPA 1998.

b) In your determination of the FOI request no. 8303 may I point out to you that the council have wrongly interpreted the scope of the request and you have further failed to demonstrate that the commercial interest exemption 43 (2) is engaged.

c) If a complaint on 8303 were made to be made to the ICO they would determine a decision notice compelling you to take prompt steps to ensure compliance with the legislation and if not complied with would enact section 54 of the act.

d) The most pivotal part of the FOIA is Section 1(1) of the FOIA is that:

Any person making a request for information to a public authority is entitled-

(I) To be informed in writing by the public authority whether it holds information of the description specified in the request, and
(II) If that is the case, to have that information communicated to him.

e) In responding as you have to 8303, the council have breached section 1 (1) of the FOIA.

f) Section 43 (2) of the FOIA does indeed provide the exemption from disclosure of information which would or would be likely to prejudice the commercial interests of any person including public bodies such as yourselves. This is therefore a qualified exemption and it is subject to the public interest test if engaged accurately.

The term commercial interest is commonly described in ICO communications as “a commercial interest relating to a person’s ability to participate competitively in a commercial activity.

There is of course no commercial activity here.

The applicants in the application purchased the land of 1.952 hectares circa 2012 and aspects of the terms of sale are not required. There is no competition; the applicants are not vying with anyone in any competitive nature neither before during nor after the purchase.

There are no third parties as Stockport Homes are an integral part of SMBC. The complete withholding of the 8303 request would only fall within the scope of the exemption if its disclosure would be likely to prejudice a commercial interest.

Firstly there is no commercial interest. Secondly in considering the nature of any prejudice which the Council must do in arguing for non disclosure, SMBC must be able to demonstrate the prejudice as real, of substance and of significance to show a causal link between the potential disclosure and the prejudice, rather than something hypothetical or misleading.

S43 (2) consists of 2 limbs to clarify prejudice arising from disclosure occurring, which are ‘likely’ and ‘would’. SMBC have and would fail to demonstrate the causal link of either between any prejudice and the disclosure of the information.

Further SMBC have failed to demonstrate that the exemption could possibly be engaged. In this particular case there is and can be no evidence of prejudice.

It is extremely likely that SMBC will fail to provide any arguments which the specific effects which disclosure is alleged to bring about and to link to the application of the exemption, one will conclude that the exemption is not properly engaged.

You must therefore concede that the exemption is not engaged on 8303 and without any engagement of 43 (2) there is no public interest test necessary, which even if there was SMBC would fail in their reasoning on that also.

g) Therefore to mostly quote your last paragraph in your determination of your response to the FOI request 8303 - The information requested is not exempt from disclosure by virtue of section 43 (2) of the FOIA.

In a nutshell, you will be aware that the FOI allows anyone to ask any Public Authority for any information that it holds, with the exception of personal information DPA and environmental information which are covered in separate legislation. The main thrust is for Authorities to be open and fully transparent.

I will trust that my request will be supplied in full within the time limit allowed.

Yours sincerely,

Rory Connor

Dear FOI Officer,

May I please remind you that tomorrow the 27th February 2014 is the 20th and last day in which to reply to my freedom of information request. The FOI act requires Public Bodies to reply PROMPTLY but in any event within 20 days. It is noted that you have left your response to the last day.

I do sincerely hope that you will not be breaching section 1 of the FOI act which states:-

1 General right of access to information held by public authorities.

(1) Any person making a request for information to a public authority is entitled —

(a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and

(b) if that is the case, to have that information communicated to him.

May I also draw your attention to the requirements of section 69 of the Town and Country Planning Act 1990 in your substantive response.

Yours sincerely,

Rory Connor

Dear Simon Oldfield,

I now consider that you have breached section 1 (1) of the Freedom of Information Act 2000 in not responding to my request in the statutory timeframe.

Can you please confirm tomorrow the date on which my request will be fulfilled in full?

Yours sincerely,

Rory Connor

Dear Stockport Metropolitan Borough Council,

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

I am writing to request an internal review of Stockport Metropolitan Borough Council's handling of my FOI request 'Vale Road Application DC/054388'.

It is a great disappointment to find that you have breached section 1 (1) of the Freedom of Information Act.

In your response to my request for an internal review can you please inform me as to who the officer was that conducted my original FOI enquiry and also let me know who will be conducting my Internal Review please?

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

Yours faithfully,

Rory Connor

Dear Stockport Metropolitan Borough Council,

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

I am writing to request an internal review of Stockport Metropolitan Borough Council's handling of my FOI request 'Vale Road Application DC/054388' with regard to your response of the 7th March 2014.

Your response is in any event late and I would have thought the inclusion of an apology would have been appropriate.

Your reply is exceptionally disappointing. The lack of documents that you have supplied is unbelievably sparse when this matter has been in progress within the council and externally to a number of the third parties for at least 2 years.

I note your comment.......

Any other ‘meetings’ which you refer to would have been informal, and without minutes.

That may or may not be the case but I also requested that you supply copies of notes of those meetings which have not been supplied. I would as anyone reading this request be dumbfounded if you are suggesting that for two years all of your officers involved had meetings with the likes of Stockport Homes, the client and the Homes and Community Agency and internally and have taken no record of those meetings either by way of minutes or notes or recordings of any description?

I further note this comment from you........

1) Meetings with the Council concerning the planning policy position which constitute pre planning application informal advice only and are deemed to be commercially sensitive. Any e-mails associated with these meetings are, therefore, commercially sensitive.

If the council deem every sinew of discussions and meetings / emails / advice in this pre-application confidential, you need to explain fully the exemption (s) you are engaging. Council's do not treat FOI requests for pre-application material in the manner Stockport are doing in this request. Stockport Council is being obstructive in their duty to the FOIA.

Despite my post and synopsis to you of the 20th February with a forecast to your potential engagement of section 43 (2) re a similar request, you have still decided to engage this qualified exemption on my own request which I believe to be wholly inappropriate as indeed by coincidence the planning application in question is also.

There is a relatively high threshold to be met in order to demonstrate that the disclosure of information would be likely to prejudice commercial interests for the purposes of exemption 43 (2). You have not demonstrated any detail of exactly why you have engaged this exemption. For assistance here are some pointers to what you should have included (which I do not believe exist).

Types of information which may be considered to be commercially sensitive include:

Non-public information relating to costing, pricing structures or financial models(eg profit margins, benchmarks, discounts, financial performance or management accounts);

That the confidentiality is provided to protect a “legitimate economic interest”;

Information relating to specific methods, techniques or systems setting out how the work will be delivered; detailed technical information; information on arrangements with suppliers or customers (especially pricing information);

You must fully explain what will be giving rise to a 'real and significant risk' of some harm/detriment to the commercial interests (or those of another party). I refer you to my namesake (Tribunal decision EA/2005/0005, John Connor Press Associates Limited v Information Commissioner).

Section 43(2) is a prejudice-based exemption, so the test for exemption is whether or not the commercial interests referred to in the section would, or would be likely to, be prejudiced by disclosure.

A public authority who engages the prejudice-based exemption 43 (2), must illustrate the test for exemption and can only withhold the information if the public interest in maintaining the exemption outweighs the public interest in disclosure.

As suggested I do not believe you have climbed the high hurdle of employing exemption 43 (2), indeed not even close which then means the public interest test cannot be engaged. However, you have also engaged the public interest test. Having done that you must state as a public body why the public interest test would be satisfied, i.e. why the public interest in withholding the information would outweigh the public interest in disclosure.

You will be aware that in this application you have received a petition of over 3,000 in objection along with nearly 600 objectors on your planning portal, one can only describe that as a torrent of public interest.

May I suggest you tussle with one explanation of what 'Public Interest’ is - there is a public interest in transparency and accountability, to promote public understanding and to safeguard democratic processes. There is a public interest in good decision-making by public bodies, in upholding standards of integrity. I further refer you in the public interest test to ICO guidance on the ‘Public interest in the issue - Public interest in the information - Suspicion of wrongdoing - Presenting a ‘full picture’.

The public interest test for example, is because if the information is disclosed, it would impede the ability of the client to compete in future tenders, making them less likely to try to win them in the future. This is not the case here.

Whether this exemption 43 (2) will apply is highly dependent on the specific facts of the case. In general, it is more likely to apply if disclosure of the information is likely to affect a company’s competitiveness in future procurement exercises or to affect the competitiveness or viability of on-going transactions/projects. This is not the case here.

The following factors are likely to be relevant in assessing whether information is to be considered as commercially sensitive, such that disclosure would be likely to prejudice a person’s commercial interests:
• how current the information is;
• whether the information is specific to a particular company/business or reflects general industry practice;
• whether disclosure would weaken the company’s competitive position in the market;
• whether disclosure could damage a business’s reputation or adversely affect its relationship with its customers or suppliers; and
• whether disclosure would affect its ability to raise finance or implement its business plans.

This is not the case here.

The exemption is generally applied quite restrictively. If Stockport try to claim that the entirety of communications and all information relating to a bid should be withheld on this basis, you are unlikely to be successful in making the exemption stick. It is better to focus on protecting information which is truly confidential/ commercially sensitive and not tagging section 43 (2) to anything that the council may feel is embarrassing. FOI does not permit a qualified exemption entitled Section 69 'Embarrassment'.

As a general principle, planning applications are expected to be open, public and transparent. It can therefore be difficult to establish that the public interest test is satisfied, particularly where the development concerns land is to be purchased back by Stockport Council, where there is a need for “particular scrupulousness” (see Tribunal decision EA/2010/0012, Bristol City Council v Information Commissioner).

Even if section 43 (2) could be engaged at any point in my request it could not be engaged as you have done in such a blanket fashion.

I now request in this Internal Review that you fully supply all that was requested in my original request.

Please confirm which officer compiled your response of 7th March and which officer will be conducting my Internal Review.

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

Yours faithfully,

Rory Connor

Dear Mr Ashworth,

I am most disappointed that you continue to resist supplying the information requested.

I am grateful that you have conceded there is widespread public interest in the matter.

You suggest that 'documentation available in relation to informal discussions as it is, is likely to have been destroyed according to Normal Administrative Practices, in line with the Council’s Records Management Guidance'. Can you provide a copy of your policy and the date on which it was adopted by the council and confirm which records may have been destroyed?

I do not except your explanation that discussions which have continued for two years and involved discussions on over fifty sites in the borough with a number of third parties and numerous officers at the council and your wholly owned subsidiary Stockport Homes have resulted in next to no recordings of any communications/ letters/ emails /notes.

It is inconceivable given the number of senior individuals concerned in the various meetings and the significance of this major development that more professional notes/minutes/recordings/emails/letters have not been recorded.

In the case of the Homes and Communities Agency you will have been involved in a bid / grant application for the site in question which is likely to be a seven figure amount from the public purse. It is important that the public understands how the public purse is spent or is proposed to be spent. This application is about affordable public housing, there are no competing developer interests, there are no competing land interests and there are no competing agents or applicants.

It is highly unlikely that the council have in over two years not developed a pre-planning application file. As an example you first began communicating with the Homes and Communities Agency in April 2013, a public body. You will have records of all minutes/notes/emails/letters etc, with the Homes and Communities Agency, a government agency and public body.

In relation to scrutiny how could the matter be progressed in that two year period without matters being recorded? The applicants state 'In our meetings with Stockport which started in late 2011 we have looked at over 50 sites which have been whittled down and down until only this site was left as suitable'. And their agent states 'The submission follows a detailed series of pre-application discussions with the relevant Council officers from the Planning Policy, Arboricultural, Development Control and Highways sections along with consultations with the key officers from Stockport Homes which have been ongoing since representations were submitted to the Council in February 2012'.

The council chose the only site left on the table in August 2012 at a council meeting chaired by the leader of the Council, Councillor Sue Derbyshire as the preferred site from a short list of five sites, a meeting which was minuted and only published on your website in February 2014 at the request of a ward voter. Those minutes suggest lots of discussions on other sites and their merits were discussed.

Whilst accepting your comment that information may be available from the point of the full application at your offices this is not the information that I have requested. The information I require relates to pre-application discussions which will not only include recordings of meetings but also certain documentation that would have been needed to be completed prior to the full application. These are partially referred to in the statement of the applicants. For instance I would like to know what the other 50 sites are that were discussed.

Guidance published by the Local Government Association (the ‘LGA’) created by the Planning Advisory Service suggests that in order to increase transparency on pre-planning advice provided by planning authorities, pre-planning advice should be recorded and published unless there is a reason for the information to remain confidential. This is in order to demonstrate probity in planning decisions, and particularly in councillor’s involvement in pre planning discussions. The advice in question ‘Probity in Planning for Councillors and Officer’ was published by the LGA in April 2013.

I find your explanation that other land owners, other agents and other housing association would come into competitive play to be quite a bizarre and incredulous explanation.

You confirm that you have reviewed information but do not state what that information is. Would you be willing to list those documents?

You have maintained in your internal review the engagement of section 43 (2) commercial interest with regards to 3 third parties. Can you confirm that you have communicated with those third parties in arriving at your conclusion and would you be able to share those communications in response to me please by return?

Your explanations about prejudice to commercial interests are merely generic arguments and not case specific. It is necessary for a public authority to show that disclosure ‘would’ have a prejudicial effect, not that it may or simply could have an effect. I do not believe you have demonstrated this.

I have further taken your advice and made a complaint to the Information Commissioners Office in relation to how my request to you has been handled.

Yours sincerely,

Rory Connor