Friday, 22 May 2015

Knowle relocation project: the Information Commissioner's decision notice on another Freedom of Information request: "The council’s approach was neither in the spirit nor the letter of the legislation."

In the still-ongoing case concerning the Knowle relocation projects, we are still awaiting the publication of the relevant reports:
Futures Forum: Knowle relocation project: waiting for the tribunal process to be 'completed'

The Information Commissioner has just issued its decision notice in the related case FS50550485.

It has been critical of the District Council on many points:

Reference: FS50550485 
Freedom of Information Act 2000 - (FOIA) Environmental Information Regulations 2004 (EIR) 
Decision notice Date: 12 May 2015 
Public Authority: East Devon District Council

1: The Commissioner has not ordered any steps to take for reasons that are explained in the decision notice.

16: During the Commissioner’s investigation, the council changed its website and as a result, the links previously provided ceased to work. Moreover, even when the links were still operational, the Commissioner highlighted to the council that it was difficult to understand precisely what information it considered fell within the scope of the request. 

20: In this case, the council had clearly formed the view that providing website links was an appropriate way to respond to these requests because it had already published a good deal of information about this large project in an effort to be proactively transparent. Its intention appears to have been that the complainant would engage with it afterwards. However, the council did not make that intention explicit until months after its initial response, and it was only prompted by the start of the Commissioner’s investigation. The council also acknowledged that this was a very broad request with a subjective interpretation. This project is still ongoing and is large and complex. There have been changes to the plans as they have progressed. In the Commissioner’s judgement, it would have been reasonable to expect the council to engage more proactively with the complainant, at a much earlier point, to try to clarify the nature of the information being sought and to assist him in understanding what information the council held that may fall within the scope of the request. 

26: The complainant told the Commissioner he remained dissatisfied because the council had not provided a list of the meetings requested. He said it had only provided a list of the types of meetings that have taken place. He said it was not appropriate to refer to a website containing several hundred agenda documents and effectively say the information is in there somewhere. He also suggested that there may be more information held relating to the stakeholder meetings and presentations referred to as the council website had only mentioned two meetings on 19 July 2013 and 8 November 2013. 

27: The Commissioner explained to the council that he agreed with the concerns expressed by the complainant about the difficulties of locating the relevant information and the non-specific response provided by the council. As a result, the council produced an A4 sheet of paper which it provided to the Commissioner. This set out the date of the meetings of the Member Office Accommodation Working Party and the names of the attendees at each meeting, though not invitees. The council said that it had not included a list of public meetings as this information was already publicly available however, the council provided the Commissioner with a list of stakeholders who had been invited to attend the two stakeholder events held at Exeter Airport and the East Devo

31: The complainant told the Commissioner that he remained dissatisfied with the response because the council had still not provided a proper list. He also said that the council’s internal review had referred to the Office Accommodation Working Party which does not have public agendas and minutes because it is not a committee and this means that information the information is not on the council’s website. 32: In response to the Commissioner’s enquiries, the council produced a list of the progress reports that were presented to the Office Accommodation Working Party and their dates as well as a number of other reports that had been presented at council meetings

35: The complainant said that the reports referred to provide details of an office move to SkyPark and the basis for withholding them at the time was that they were commercially sensitive due to ongoing negotiations for the purchase of land at SkyPark and the sale of land at Heathpark. The complainant said that as these negotiations had completely fallen through, there is no longer any reason to withhold the information. 36. When the Commissioner asked the council to justify its refusal to provide this information in response to this particular request, the council referred to the arguments it had already made in relation to the separate case before the tribunal referred to above. The Commissioner specifically highlighted to the council that it must take into account the passage of time since it had previously considered this request (the request being heard by the tribunal was made on 13 February 2013) The Commissioner referred directly to the complainant’s comments and asked the council to engage properly with those arguments. In response, the council said that it accepted that some of the information may no longer be excepted because of the passage of time but it was not willing to reconsider that matter further until the tribunal had reached an outcome on the previous request. It said that this was to avoid duplication of work. The council did also say that it was due to make a decision on the office relocation soon and following that, it was likely that the reports would be considered for publication.

37: The Commissioner would like to highlight that when a public authority refuses to provide information to a requester it must provide valid justification for doing so at the time. It is not acceptable for the authority to delay providing an appropriate justification to the requester and subsequently to the Commissioner because there is an ongoing tribunal case relating to a request made at a different time. The legislation provides specific timescales for responding to requests and it is important to take into account any change of circumstances when information has been previously withheld but requested again at a later stage. The Commissioner did not agree with the council’s assessment that this would amount to an unnecessary duplication of work. The council’s approach was neither in the spirit nor the letter of the legislation. 

38: The failure by the council to provide appropriate justification for withholding the progress reports in relation to this particular request leaves the Commissioner with no alternative but to find that the reports were not excepted and that the council therefore breached its obligations...

44: The Commissioner explained to the council that it did seem surprising that the council appeared to be claiming that the most up to date costs information held at the time of the request in April 2014 dated from the beginning of 2013. Despite asking the council to deal with that point, the council did not address it or the complainant’s query about whether the council held costs information that was more “broken down”. In common with its responses to the other requests, the council did not fully explain what searches it had undertaken to check that no other information was held. Despite being pressed on the point by the Commissioner, the council repeatedly only said that it had consulted those involved in the project. It did not identify more specifically who did the searches or what searches were made. The Commissioner was therefore not able to assess the adequacy of the searches conducted.

46:  The Commissioner was not presented with any evidence to demonstrate that the council had engaged appropriately with the complainant to try to clarify the nature of the information being sought and to assist him in understanding what information the council held that may fall within the scope of the request. The Commissioner’s view is that this would have been reasonable in the circumstances, given the scale of this project and the broad nature of the request made. As described earlier, the council made no specific reference to the intention to engage further with the complainant until its internal review, provided months after its initial response and only once the Commissioner’s investigation had already started.

47: Furthermore, in the absence of an appropriate level of engagement with the complainant about the information that was being sought in the first instance, the Commissioner finds that the council again breached its obligations...

49: The Commissioner was concerned about the way in which the council had handled these requests and about the council’s subsequent engagement with the Commissioner’s investigation for the reasons outlined in this notice. The Commissioner also notes that the tribunal has echoed some concerns about the council’s conduct during the related appeal mentioned in this decision notice. Given the significant public interest in a project of this nature, that is particularly regrettable. The Commissioner trusts that the council will consider the outcome of this complaint and the Commissioner’s comments about the approach taken by the council in order to improve its request handling in the future. There is also a significant amount of guidance available on the Commissioner’s website at www.ico.org.uk to help authorities improve their request handling.


Relocation from the Knowle - a Freedom of Information request to East Devon District Council - WhatDoTheyKnow

See also:

Freedom of Information Outcomes

On 5th May 2015, more than 2 years after the original FoI request, almost 9-months after the First Tier Tribunal hearings, just two days before the EDDC elections and several weeks after the decision was made on the relocation, the First Tier Tribunal finally issued its judgement[ba]. The First Tier Tribunal rejected EDDC’s appeal, again ordering disclosure of documents and, at the very end of their judgement, took “the unusual and unfortunate step of commenting on the conduct of the appeal itself” – we encourage people to read this judgement document in order to inform themselves about the conduct of the previous Council and its officers.

Barely a week later, the Information Commissioner’s Office (ICO) issued its own Decision Notice[bb] relating to a different FoI request about the Knowle from a different local resident. At the end of this decision notice, the Commissioner says that he was “concerned about the way in which the council had handled these requests and about the council’s subsequent engagement with the Commissioner’s investigation” – again we encourage people to read this Decision Notice and inform themselves about the conduct of their Council.

The Council has now made some documents available on its website[bc] – though it should be noted that these relate only to 2009-Feb 2013 (no documents between Feb 2013 and March 2015 are being published) and that some documents are awaiting approval by the First Tier Tribunal whilst others have significant redactions.

Knowle Relocation | East Devon Alliance

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