Freedom of Information

Document Sample
Freedom of Information Powered By Docstoc
					                           Freedom of Information Act (FoI)


The Act came into force 01/01/2005 and gives any person, including foreign nationals
and companies, rights to access information held by a public authority in England,
Wales and Northern Ireland. The legislation is retrospective and includes information
recorded (in any form) before the Act came into force.

The Act provides a general right of access but there are exemptions: -

 Section 41 confidentiality, ie the owner of the information could bring an action
  for breach of confidence; absolute exemption.

 Section 43 commercial interests, conditional exemption but the default position is
  disclosure. Information can be withheld if disclosure would, or might, prejudice
  the commercial interests of any person or the authority (trade secrets not subject to
  confidentiality, information as commercially valuable as a trade secret such as the
  results of trials, research, business plans) or where the information is market
  sensitive (ie an organisation is preparing to move premises). The authority has to
  determine that the public interest served in not disclosing outweighs the public
  interest served by disclosing. This will be tested by the information commissioner
  and ultimately the courts

The Act affects the private sector in that information disclosed by a private business
to a public authority is potentially accessible to a third party. So a business may be
able to find out more about government, policies and the market but in turn others
may do the same to them.

The question

The question posed by Betty Albon FRICS, Corporate Property Officer, Property Services,
Resources Directorate, telephone 01284 757307 was : -

”St Edmundsbury received 3 FoI requests on the 1st day! One asks to see all contracts
between the Council and the developer of a major town centre redevelopment site. The
Council is trying to decide what can and cannot be revealed and I welcome advice of
colleagues as to how much is covered by valid exemptions.”

Responses received from the following authorities

Alnwick DC Jane Stratton
Barnet LB David Stephens
Basildon DC Jim Ross
Birmingham Peter Jones
Bradford MDC Mike Bell
Bromley LB Frank Whiting
Camden LB Alan Jacques
Carmarthenshire CC Jonathan Fearn
Chester City Council Cliff Mallows
Chorley BC Roger Handscombe

Page 1 of 8
Cornwall County Council Bob Perry
Darlington BC Guy Metcalfe
Dartford David Fletcher
Derby City Council Jim Olford
Doncaster MBC Peter Howard
East Staffs BC Ray Ashton
East Sussex County Council Andrew Preissner
Glasgow City Council Willie Martin
GO YH Brian Ablett
Halton BC Jerry Goacher
Harrogate BC Bernard White
Havant BC Andrew Case
Herefordshire CC Alison Hext
Hillingdon LB Martin White
Leicestershire CC David Cragg
Mole Valley DC John Burgess
North Ayrshire Council John Ferguson
North East Lincolnshire Council Richard Sands
North Lanarkshire Council Alan Slack
Northumberland CC Ian Hay,
Nottingham City Council Richard Allen
Nottinghamshire CC Henry Blagg
Office of the Deputy Prime Minister Simon Lait
Reading BC Bruce Tindall
St Albans City & DC Andrew Wearmouth
Shetland Island Council Andrew Drummond-Hunt
South Ayrshire Council Malcolm MacAskill
South Lakeland DC Dave Pogson
South Ribble BC Sam Hird
Stockport MBC Brian Ormerod
Suffolk CC Brian Prettyman and Neil McManus
Vale Royal BC Anthony Haward
Warwickshire CC Rebecca Couch
Waverley BC Miller Stevenson
West Lothian Council David Forsyth
Wolverhampton MBC Tony Woods

An analysis of responses received follows. Abbreviations used and references and
supplementary information provided follow the analysis

NB The views summarised therein are those of the person responding unless another source is
clearly indicated.

Page 2 of 8
Analysis of responses received (edited) listed by reponders surname
 RESPONSE                                          COMMENTS
Brian Ablett,      Find out what the Civil Service does. ODPM has issued Guidance. Try
GO YH              usual contacts or use FoI if not forthcoming!
Richard Allen      At this stage I am unable to help.
City Council
Ray Ashton,        The Council has an agreed FoI policy, copy attached.
East Staffs BC
Mike Bell,      Bradford has run a series of FoI training sessions and issued guidance to its
Bradford MDC    staff on responses to requests. Our solicitors will give additional advice
                where we are uncertain. The key is how to interpret the permitted
                exemptions. So far we have been able to deal with requests by releasing
                copies of documents and legal agreements.
Henry Blagg,    The Council has received about 30 FoI requests, including 2 searching
Nottinghamshire property ones. I am corporate property liaison contact. There is a Council
CC              wide procedure for dealing with requests which if "complex" (ie potentially
                exempt or anything other than simply supplying what is required) are
                referred to named "champions" and then legal who have the view that
                uncertainties will persist until there is Case Law. We have identified
                uncertainties about how much information should be revealed or considered
                exempt, and expect that this will persist for some time. Each request should
                be treated uniquely; there will be subtle distinctions between apparently
                similar schemes and requests.
John Burgess    Slides from FoI presentation by Charles Solomon of VOA available on
Mole Valley DC paper only.
Andrew Case,    This is not on the same scale but in case the principles are helpful I attach a
Havant BC       file note and email response to Havant’s first property request. The Council
                was advertising a beach kiosk concession and a prospective tenderer asked
                about the old rent which we refused to reveal as it might depress offers; so
                an FoI request was made. Havant Legal helped with the file note and
                response (which is probably why they read like legal documents!). The
                Council’s starting point is that we should release information wherever
                possible, but we will invoke exemptions where necessary. We have made
                extensive use of the DeCAf website
Rebecca Couch Only 3 requests so far; Warwickshire protocol for dealing with FoI requests
Warwickshire    attached which may be of some use to other member.
David Cragg,    If I receive such a request, I will probably respond as follows, depending on
Leicestershire  the contract details.
CC               1. If contracts have been exchanged I would provide the overall value of
                each contract unless it was published or about to be published in a
                document or on a website of the Authority. In which case, I would only
                refer them to the appropriate publication.
                2. If negotiations are ongoing and contracts not exchanged, I would not
                release or let them see the information as I would classify it as
                commercially sensitive.
                3. I would not let anyone see the financial breakdown of any contract as I
                would declare it commercially sensitive and not in the public interest.
                4. I would be prepared to let them see the terms and conditions of the
                contract notwithstanding any financial elements which I might declare
                commercially sensitive and blank out.
                5. As a developer, I assume he has a number of sub-contracts. If the
                Authority is aware of these and they are in your possession, you may find it

Page 3 of 8
                  difficult not to release the information if requested. Whilst I would accept
                  such information is commercially sensitive to the developer and sub-
                  contractor, it is not necessarily so to the Authority.
Andrew            Scottish FoI is more favourable to the enquirer than the English version.
Drummond-         Follow the comprehensive Scottish FoI Guidance available the Scottish
Hunt Shetland     Procurement Directorate website, and you are almost certain to comply with
Island Council    English requirements. Shetland Islands Council intends to follow this
Jonathan Fearn    In preparing for FoI last year we ran through some dummy questions, and
Carmarthenshire   answers. These are attached; question 4 deals with development.
John Ferguson,    No Property Services FoI requests so far.
North Ayrshire
David Fletcher,   Please refer to the Council’s website for details.
David Forsyth,    No Property Services FoI requests so far.
West Lothian
Jerry Goacher,    I take the view that the documents contain commercially sensitive
Halton BC         information and therefore have a qualified exemption. So far we have taken
                  the stance the public interest in releasing commercially sensitive contractual
                  information does not outweigh the public interest in withholding it. Where
                  details are not commercially sensitive they will be available in already
                  published committee reports and minutes and so FoI is not involved.
Roger             No property FoI requests to date but I am advised that we do not have to
Handscombe,       hand over any documents but can reveal specific information where there is
Chorley BC        a clear request, ie a request to provide “all information" about a transaction
                  is not valid as it is insufficiently specific, as is the request to supply contract
                  documents on the lines you mention. Also the defence that transaction
                  details are commercially sensitive initially may diminish with time and,
                  eventually, all details may have to be produced.
Anthony           All Vale Royal staff have been through an FoI training programme. Each
Haward, Vale      Directorate has nominated 2 "champions" to deal with enquiries, and the
Royal BC          response or reference to Legal Section for further advice. Staff have been
                  encouraged to destroy old records that we are not legally bound to retain.
                  This has created conflict with the need to retain property records. A Policy
                  is being developed. For your issue there may be scope under section 43 of
                  the Act, “Prejudicial to Commercial interest.” You could reveal the
                  developers identity and suggest the information could be available from
                  them (section 21). Do not forget the Data Protection Act.
Ian Hay,          Northumberland’s approved FoI Publication Scheme is attached. We would
Northumberland    class the information you refer to as exempt.
Alison Hext,      No requests so far but only conflicting advice available.
Sam Hird,         Refer to EG 15/01/2005 page 92. If information such as DA is disclosed
South Ribble      there should be a substantial charge for the documentation.
Peter Howard      Doncaster’s FoI policy and guidance is published on the authority’s website
Doncaster MBC; staff will adhere to these as there are no alternative
                  policies or procedures to follow.

Page 4 of 8
Alan Jaques,       It is difficult to comment on your case without more information, eg are the
Camden LB          contracts referred to still in negotiation or completed. Also who has made
                   the request as this is relevant to the consideration of "public interest". It
                   may be that you could decline to disclose some contract information on the
                   grounds that it would, or would be likely to, prejudice the commercial
                   interests of the Council or a third party, in accordance with the qualified
                   exemption in the Act. This will be much more difficult with contracts that
                   are completed and/or implemented. Please note the London Branch Seminar
                   on FoI, 8th March and good value at £75!
Peter Jones,       Birmingham has had a spate of requests but this is calming down now. One
Birmingham         request, similar to yours, is from the local press about a high profile
                   development site called Paradise Circus. The request is to see all reports
                   and advice since 2002. Potentially this catches a series of reports from the
                   Council’s consultants with appraisals and advice on the viability of the
                   scheme. On legal advice we have claimed an exemption based on the
                   commercial sensitivity of the information
Simon Lait,        You say you are currently working in partnership with a developer on a
Office of the      major town centre regeneration project and have received an FoI request to
Deputy Prime       supply contracts between the Council and the developer. The attached may
Minister           be of assistance.
Malcolm            There is commercial confidentiality involved but the FoI Officer will advise
MacAskill,         whether to release information or not. Also ask the developer whether they
South Ayrshire     are prepared to release information. South Ayrshire will release information
Council            unless there is compelling reason not to.
Cliff Mallows,     Not been asked yet but a city centre development is in negotiation. The
Chester City       intention is to produce a “clean” DA for FoI purposes but a CPO Inquiry is
Council            coming up and the DA will have to be disclosed then.
Willie Martin      Please refer to the departmental database of FoI enquiries. The only issue I
Glasgow City       can see is in relation to entry 2 where we are in active negotiation with a
Council            prospective purchaser. The comments in relation to entries 6, 7 and 11 are
                   merely markers at this point in time and I personally don't think will come
                   to anything.
Guy Metcalfe,      Darlington has not yet received any property related requests but has an
Darlington BC      appointed FoI officer and procedure in place. In your case I would think a
                   refusal on qualified exemptions/commercial interests basis would apply.
                   Consider contacting Paul Simpkins on
Jim Olford,        Refer to EG 15/01/2005 page 92, more property orientated than Information
Derby City         Commissioner Guidance Note 5 otherwise once the Land Registry release
Council            land price there is little that can be treated as exempt.
Brian Ormerod,     ACES North West Region is seeking CPD speakers able to address property
Stockport MBC      specific elements of the Act. FoI is now a standard agenda item. Attached
                   an extract from our FoI Guidance Notes that highlights conflict between
                   entitlement and exemptions. Other thought; as the Land Registry makes sale
                   prices available at a fee this is considered a satisfactory reason for not
                   disclosing figures in completed transactions. Information relating to offers
                   prior to exchange of contract is covered in the above Guidance by the first
                   point in the section “What kind of information is likely to be withheld?”
Bob Perry,         Cornwall has issued extensive legal advice, has published guidance on our
Cornwall           intranet, has a dedicated FoI Officer, and processes for dealing with FoI
County Council     requests. Our view is that FoI will produce judicial decisions which will
                   shape and clarify the law.
Dave Pogson,       No requests so far.
South Lakeland
Andrew Preissner   The Council has several requests already, including one about a

Page 5 of 8
East Sussex CC    controversial disposal and another asking for details of all our mobile
                  telephone masts. The disposal case was straightforward as the sale was
                  completed and much of the information already in the public domain; ie via
                  press release or Land Registry. We do have some FoI literature although not
                  specific to property issues.
Brian Prettyman   Previous experience suggests it is hard to justify withholding much
Suffolk CC        information at all. The likelihood is that a DA would be released but clauses
                  relating to conditions still to be fulfilled would be withheld as it is possible
                  that a third party could influence whether the fulfilment was achieved.
Jim Ross,         No Property Services FoI requests so far. I do not think it will be easy to
Basildon DC       make a valid case for classifying information as exempt. Life could get
                  interesting when developers and contractors realise they may be able to use
                  FoI to access commercially sensitive information
Richard Sands,    An FoI request has been received for a copy of my Valuation Report and
North East        Certificate relating to the sale of a former school site. Reports are to be
Lincolnshire      provided with valuation figures blanked out (on the basis they are
Council           commercially sensitive).
Alan Slack        The councils corporate centre deals with all FoI requests and responses.
North             There is an appointed FOI officer.
David Stephens,   Barnet’s approach is that if the information falls under the exemptions
Barnet LB         given by paragraphs 7 and 9 of Schedule 12A of Part 1 of the Local
                  Government Act 1972 then it remains exempt. Thus, if it is financial
                  information about a third party or if the information could commercially
                  prejudice the Council if disclosed, then it can be withheld. Otherwise why
                  not ask the Information Commissioner?
Miller            Waverley has received requests to release information on contracts relating
Stevenson,        to development schemes. In conjunction with our FoI officer contracts will
Waverley BC       be released but withholding any reference to Licence fees, Sureties,
                  Financial provisions, Costs, Appraisals, Deeds of covenant etc, and Fees.
                  Anything deemed to be financial information has been withheld, citing
                  Section 43 exemption [Commercial Interests]. Currently we are consulting
                  our development partners and pending their agreement nothing has yet been
                  released. We would welcome reference to the Information Commissioner to
                  get some clarity and precedent. In applying the "public interest" test is it
                  possible to ask why the inquirers want this information.
Jane Stratton,    All FoI requests (none received so far) will be discussed with the Council’s
Alnwick DC        FoI Officer (Assistant Council Solicitor). Conflict with the commercial
                  interests of a Council contractor would fall into the exempt category.
Bruce Tindall,    Reading has received some property requests related and has a process that
Reading BC        directs FoI to a central resource offering support and guidance. The general
                  view is that the more historical the information is then the less chance there
                  is of asserting the site is commercially sensitive, particularly if information
                  is already public eg land registry records, and the authority’s own accounts
                  that may identify individual sites and values. A draft clause the private
                  sector wishes to include in a still under negotiation DA is attached. A
                  revised MDA with certain items omitted would then be appended to the
                  main MDA.
Andrew            St Albans has adopted Hertfordshire CC internal FoI advice. The county
Wearmouth         has agreed to release this for completeness and without guarantees; but any
St Albans City    other authority should obtain its own independent advice on any queries.
& DC              However, St Albans takes the view that enquiries MUST be in writing, not
                  the "should" as in the County paper.

Page 6 of 8
Bernard White     Most Councils will have a FOI officer. We have an advisor who is acting
Harrogate BC      for all the Councils in North Yorkshire. Colleagues may want to seek out
                  their counterpart and take a view
Martin White      I received a vague request for information about land sold for a major
Hillingdon LB     redevelopment scheme some years ago. I agreed to provide details of what
                  was sold to whom and when but not the terms of sale these are covered by
                  the Local Government (Access to Information) Act 1985 Schedule I
                  Exemptions. However where a sale is completed the enquirer can obtain
                  price information on price from the Land Registry; but this only applies to
                  post January 2000 transactions, and so would not apply to our case
Frank Whiting,    Bromley has entered into a contract to sell Tesco land for a new store. The
LB Bromley        contract is conditional on planning (now granted), stopping up orders and
                  vacant possession (which may require a CPO). It is unlikely to go
                  unconditional for a year or more. The Council and Tesco are particularly
                  keen to keep the sale price confidential. 2 FoI requests have been received;
                  to disclose the sale price, and to supply copies of all correspondence
                  between the Council and Tesco (or their representatives). We have taken
                  the line that all matters relating to the land transaction are commercially
                  sensitive and therefore exempt. This view is supported by internal lawyers
                  but they have yet to respond to the applicants. It is accepted that planning
                  correspondence will be disclosed. I will let you know if anything changes or
                  our view is challenged.
Tony Woods,       The Council has not received any property requests to date. Our procedures
Wolverhampton     require consultations with our legal colleagues if there is any doubt.

Abbreviations used in the analysis.

CC     County Council
CPO    Compulsory Purchase Order
DA     Development Agreement
DC     District Council
FoI    Freedom of Information Act
GOYH   Government Office, Yorkshire and Humberside
LB     London Borough
MBC    Metropolitan Borough Council
MDC    Metropolitan District Council

References and supplementary information.


1. Carmarthenshire Q&A.
2. East Staffs
3. Glasgow Database.
4. Havant beach kiosk evaluation.
5. Havant beach kiosk response.
6. Hertfordshire CC guidance.
7. Northumberland guidance.
8. ODPM guidance.
9. Reading draft DA clause.
10. Stockport guidance.
11. Warwickshire Protocol.

Page 7 of 8
Other references and websites
12. EG 15/01/2005 page 92
13. Mole Valley DC; VOA FoI presentation slides on paper only.
14. Scottish FoI Guidance available the Scottish Procurement Directorate website.

Page 8 of 8

Shared By: