"K-Files - the script" (or Kirklees Council response to our request for information re site H2089
Here is the clandestine response received yesterday from Kirklees in respect of what we believe were perfectly reasonable enquiries. We prefer to refer to this as the script to the K-Files..........
KIRKLEES METROPOLITAN COUNCIL REFUSAL NOTICE
REGULATION 14 ENVIRONMENTAL INFORMATION REGULATIONS 2004
REQUEST BY xxxxxxxxxxxxxxxxxxxxx FOR INFORMATION RELATING TO THE DRAFT LOCAL PLAN SITE H2089 DEWSBURY RIVERSIDE
The request is for the following information:
“Under the Freedom of Information Act 2000, please provide me with the following information that is referred to within the Draft Local Plan section "4.2 Dewsbury and Mirfield Sub-Area", subsection "Site H2089":
- 1.The document "Masterplan (Dewsbury Riverside)";and
- 2.The document "Drainage Masterplan";and
- 3.The document "Noise Assessment";and
- 4.The document "Contaminated LandAssessment".”
I can confirm that the Council holds some of the information requested (highlighted yellow above) and that it considers that two of the exceptions to disclosure set out within the Environmental Information Regulations 2004 apply to this information and that in, in all the circumstances of the case, the public interest in maintaining the exceptions outweighs the public interest in disclosing the information requested.
In coming to its decision, the Council has had regard to the Information Commissioner’s Guidance:
- The Guide to Environmental Information (December2015)
- Material in the course of completion, unfinished documents and incomplete data (regulation 12(4)(d)) Environmental Information Regulations (July2012)
- Interests of the person who provided the information to the public authority (regulation 12(5)(f)) (March2015)
- How exceptions and the public interest test work in the Environmental Information Regulations (March2013)
Regulation 12(1) of the EIR provides that a public authority may refuse to disclose environmental information requested if an exception to disclosure applies. This is subject to the requirement that in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information. There is a presumption in favour of the disclosure of environmental information.
Regulation 12(4)(d) relates to unfinished documents or incomplete data; it states:
12.- (4) For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that—
(d) the request relates to material which is still in the course of completion, to unfinished documents or to incomplete data
The Council can confirm that the reference to a masterplan document in the Draft Local Plan is a reference to a document called the Dewsbury Riverside ‘Vision’. The document is currently ‘work in progress’ and since the document was submitted things have moved on and it represents only a partial view of the situation. Further to this the Council understands that the site promoters are shortly to undertake a period of engagement with the local community and disclosure at this time would be inappropriate and potentially misleading and therefore damaging to the process of engagement because the document is unfinished and the data is incomplete.
The Information Commissioner states in the guidance document “How exceptions and the public interest test work in the Environmental Information Regulations” (March 2013):
“The public interest can cover a wide range of values and principles relating to what is the public good, or what is in the best interests of society. In the context of EIR, there is a public interest in a sustainable environment. More generally, there is also 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, in ensuring justice and fair treatment for all, in securing the best use of public and environmental resources and in ensuring fair commercial competition in a mixed economy. This is not a complete list; the public interest can take many forms.”
The Council considers the above comments apply in this case and are factors in favour of disclosing the information requested.
However, as noted above, a period of engagement with the local community and key stakeholders is due to get underway shortly. Representations to the Draft Local Plan are public and set out an overview of the proposals and explains that a Masterplan and Delivery Framework, accompanied by technical reports, are currently being prepared and will be submitted in due course, which will demonstrate the deliverability of the proposed scheme. There is a strong public interest in allowing this to go ahead and for open and frank consideration of all aspects of this engagement without a perception that the Dewsbury Riverside “Vision” document represents a set position which might otherwise influence people’s views and adversely affect thatengagement.
There is a strong public interest argument inherent in regulation 12(4)(d) in favour of avoiding un-adopted positions being exposed to public scrutiny so as to avoid public resources being expended in explaining or justifying these. Balanced against this would be the counter-argument that there is a public interest in exposing interim positions so that the public is given a fully informed picture of current views and the and decision-making process, promoting transparency and accountability in relation to the activities of public authorities.
On balance the Council believes that the public interest in not disclosing the information requested and safeguarding the process of engagement for the purpose of achieving the best outcome possible outweighs the benefits which might arise from the greater openness and transparency provided by disclosure of unfinished material which might wrongly be taken as indicating a settled view on an issue.
The request for disclosure is therefore refused.
The exception set out at Regulation 12(5)(f) provides protection for the interests of a person provided the information.
Regulation 12(5)(f) states:
12.— (5) For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that its disclosure would adversely affect—
(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 publicauthority;
- (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 itsdisclosure
The information requested is the Dewsbury Riverside “Vision” document.
In determining whether this exception is engaged, the Council has considered whether the three conditions set out within Regulation 12(5)(f) are met:
- (i)That third party supplying the information was not under, and could not have been put under, any legal obligation to supply it to the Council and had in fact supplied the information on a voluntary basis;
- (ii)There is no entitlement for the Council to disclose the information supplied by the third party other than under these Regulations; and
- (iii)The third party has not consented to its disclosure and furthermore has specifically requested that the information not be disclosed.
In the course of its deliberations the Council has consulted with the author of the report of the document and their strong view is that the information requested is exempt under regulation 12(5)(f).
Having carefully considered the circumstances, the Council has determined that the author of the document was not under any obligation to submit it and did so on a voluntary basis and that the author has not consented to its disclosure and has in fact expressly stated “that the report should not be disclosed to any third parties (other than consultants instructed by the Council to review this report) under the
Freedom of Information Act 2000 (sections 41 and 43(2)) or under the Environmental Information Regulations.” Accordingly, the Council is satisfied that there is a duty of confidence imparted upon the Council.
The question arises as to whether in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information.
The Information Commissioner has issued “How exceptions and the public interest test work under the Environmental Information Regulations” and suggests that, in the context of EIR, there is a public interest in a sustainable environment and that, more generally, there is also a public interest:
- in transparency andaccountability,
- in the subject the information relates to and in the informationitself
- in presenting “a fullpicture”
- in furthering the economic development ofKirklees.
In this case there is a legitimate public interest in having all the information held by the Council and which the Council may take into consideration when dealing with environmental matters, which would be furthered by the disclosure of the requested information.
However there is also a public interest in the Council maintaining the confidentiality of contributions made by third parties with the best of intention and that to disclose such contributions would discourage third parties from providing information to the Council for its consideration, for fear of disclosure of confidential information.
There is a strong public interest in treating the requested information as confidential because the local plan is a live issue and public engagement is imminent and, as set out in 2(a) above, this engagement needs to be undertaken without any perceived settled view detracting from the open and frank consideration of the site.
In this particular case, there are also strong additional site specific reasons for not releasing the information into the public domain:
In this particular case the requested information was provided voluntarily with no expectation on behalf of the developer that it would be made public, and the developer had expressed a view that privacy should be maintained in this respect and has specifically not consented to disclosure. The Council has accepted that some of the information falls within the exception set out at regulation 12(5)(e) and that disclosure would prejudice the commercial interests of the provider should it be released for the reasons set out in section 2a above.
On balance the Council believes that the public interest in maintaining the confidentiality of information provided under an assumption of confidentiality and ensuring third parties can do so in full without fear of that information being placed into the public domain outweighs the benefits which might arise from the greater openness and transparency provided by disclosure.
The Council considers that, on balance and in all circumstances of the case, the public interest in withholding the requested information requested outweighs the
benefits which might arise from the greater openness and transparency provided by disclosure.
The request for disclosure is therefore refused.
Under Regulation 11 of the EIR you have the right to make representations to the Council in respect of this Refusal Notice. If you wish to do so you should write, within 40 working days of receipt of this Refusal Notice, to The Monitoring Officer, Civic Centre I, PO Box 1274, Huddersfield HD1 2WZ. Alternatively, you can send an email to: email@example.com.
It would assist if any such request for a review were clearly marked as such and specifically referred to this refusal notice.
If you are not content with the outcome of any review you have the right under section 50 of the 2000 Act to apply to the Information Commissioner for a decision as to whether your request for information has been dealt with in accordance with the requirements of the Act. The Information Commissioner’s website is at www.ico.org.ukand gives more information about the role and duties of the Commissioner. The Information Commissioner can be contacted at: Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF.
Information Access & Security Officer 7 March 2016