FI16658

Request

I require all correspondence to do with the lawful development applications 25/00777 and 25/00776, and Prior Approval Applications 25/00999 and 25/01328 (the track and the barns).

Response

As you are seeking information relating to a planning application, the Council believes that the requested information is likely to be information about a "measure" affecting the elements of the environment. It is for this reason that your request has been considered under the EIR legislation. 

The majority of the information you have requested is able to be released and this is attached. Please note that some information on the attached document has been redacted as it is considered personal data. Personal data is exempt from disclosure under Regulations 5(3) and 13 of the EIR. Personal data is defined by Article 4(1) of GDPR and also Section 3 of the Data Protection Act 2018 and the release of this data would contravene the data protection principles. 

Some of the information the Council holds which falls under the terms of your request is considered exempt from disclosure by virtue of Regulation 12(4)(e) of the Environmental Information Regulations 2004 as it involves the disclosure of internal communications. 

These emails contain exchanges between colleagues seeking legal advice on the applications being considered. The emails fall within the category of internal communications as specified within the EIR and the exchanges were made with the expectation that the information contained was for sight by the recipient only and not to be placed within the public domain. The underlying basis behind the exception is that public authorities should have the ability to openly discuss matters between themselves but ‘in private’, protecting the internal deliberation and decision-making processes. Regulation 12(4)(e) is subject to the public interest test as follows: 

Public interest test in favour of disclosure 

It is acknowledged that the disclosure of information can promote transparency and accountability about the Council’s decision making. In the circumstances of this case, disclosure would allow the public to understand internal deliberations. 

Public interest test for maintaining the exception 

In this matter, internal communications were exchanged in the belief that they would be private. Officers need to be able to exchange views on the issues of concern in an open manner to aide both the understanding of their relative positions but also with the aim of resolving issues in a reasoned manner, following deliberation of the facts and merits of the case. In addition, the Council considers that the disclosure of the internal emails would inhibit free and frank discussions in the future. The loss of frankness and candour would damage the quality of deliberation, particularly in respect of preparing legal documents, and that this would ultimately impede sound decision making. 

Conclusion 

The application of the above exception is subject to the public interest test, which is set out in Regulation 12(1)(b) and although an informed public assists in promoting good decision making by a public body, public bodies also require the freedom and time to fully consider their options to assist in reaching an impartial and appropriate decision without public intrusion. I have therefore concluded that the public interest test has been correctly applied in this case and these emails should remain withheld. 

In addition to the above, it is felt that the 'safe space arguments' identified in the ICO guidance on the use of this exemption would apply in this matter. The Council's position is that the public interest does not require the information to be disclosed because of the need to be able to have these sorts of discussions out of the public glare in order to ensure quality decision-making and the attendant chilling effect arguments that run from this. These emails were clearly written for internal consumption only and, it is the Council's view that this is a perfectly legitimate use of the exception. 

In accordance with the application of Regulation 12(4)(e) of the Environmental Information Regulations 2004 we have not provided the information that falls within this exception.

Attachments

Attachment

Internal Review Documents

 

Internal Review Request (1)

Iit is clear that there are many gaps in the information that you have provided. It appears that you are withholding emails and failing to comply with your obligations.  I have personally seen a number of internal emails that you have not provided.  

Internal Review Response (1)

I have reviewed the information sent to you and requested the Planning department undertake a further search of the data they hold to ascertain whether all correspondence held has been provided.  They have located a couple of items of correspondence that have not been provided to you.  One email chain includes an email that was dated after the original search was undertaken and was therefore not included within the original information provided to the Freedom of Information officer.  The other email was unfortunately missed when undertaking the initial search for correspondence, and for this I can only apologise. Please find both these documents attached. 

It should be noted that information contained within the planning files published on the Council’s website has not been provided as this information is already available and easily accessible. In addition, some of the information the Council holds is considered exempt from disclosure as it contains internal communications between departments within the Council.  Regulation 12(4)(e) of the Environmental Information Regulations 2004 is therefore engaged and has been applied to this data. 

Internal Review Response (1) Attachment

Internal Review Request (2)

I am disappointed to note that you have engaged Regulation 12(4)(e) of theEnvironmental Information Regulations 2004 and quoted the" safe space" argument asapplying in not disclosing internal communications.The ICO website states in relation to" Safe Space Arguments"; "You ( the council) may need a safe space after a decision is made, in order to properlypromote, explain and defend the key points. You need to explain why this safe space isstill required at the time of the request. This safe space only lasts for a short time, andonce you have made an initial announcement, there is likely to be increased publicinterest in scrutinising and debating the details of the decision."I have no live or current applications with DDC at this time. Therefore the "safe space"you refer to is no longer required and as the above ICO statement confirms, only lasts ashort time - and has now expired.I would draw your attention to Upper Tribunal (Department of Health and Social Care vInformation Commissioner, GIA/1552 and 1553/2019, [2020] UKUT 299 29 October2020, Paragraph 59), where the Upper Tribunal upheld Department of Health vInformation Commissioner (EA/2018/0001 and 0002, 22 February 2019).The Tribunal considered that the department's argument came close to suggesting thatwhere policy formulation or development was still live at the relevant time, the publicinterest balance must always come down in favour of non-disclosure in the absence ofsomething akin to wrongdoing within government. It rejected the argument.Please do not raise "Chilling effects" - I quote again; "Once relevant discussions (reapplications in my case) have finished, the arguments become more speculative as time passes and it is harder to make convincing arguments about a generalised chillingeffect on all future discussions within a public authority.You have therefore selectively quoted parts of the Environmental InformationRegulations 2004 to suit your purposes, to avoid disclosure. Whilst ignoring the actualdeterminations made by case law on these regulations, which in my case requires full disclosure.

Internal Review Response (2)

I can confirm following further consideration of your request and a review of whether the argument in respect of a ‘safe space’ still applies,  I can advise the 4 emails seeking Legal advice can now be disclosed.  Please find copies attached.    Please note that Personal data has been redacted where appropriate, in accordance with Regulation 13(1) of the Environmental Information Regulations, in addition to this, information that is not relevant to your request, such as it relates to other cases, has also been redacted. 

In respect of internal correspondence relating to yourself and the temporary stop notice, this was included within the data sent to you in response to your recent Data Subject Access Request, which was dealt with under the Data Protection Act.

Internal Review Response (2) Attachment