Information Commissioner v East Devon District Council – report on afternoon session

The report below has kindly been provided by Sandra Semple, an EDA member, who agreed to attend the whole First Tier Tribunal Meeting of Information Commissioner v. EDDC. This is her personal report, does not necessarily represent the views of other EDA members and is given as a layperson with no legal training. Comments are not necessarily in the order taken but provide an overview.

Information Commissioner v East Devon District Council

Afternoon session

Although it had been anticipated that the closed session would last from 2 pm to 3 pm it lasted from 2 pm to 5 pm.

The Chairman said that he would not be able to finalise the case today because 7 matters were outstanding. These related to Environmental Impact Regulations 2004 sections 12.5 (b) and 12.5 (e).

I may have missed some essential information as the Chairman went very quickly here, so this is notes only.

  1. Confidential discussions on sites – the Information Commissioner had a neutral position.
  2. Actual and potential costs what had potential contractors said: one had said they did not want their information revealed, others said that they preferred it not to be revealed. The Council maintained that it risked losing the trust of contractors if information was disclosed, it would prejudice their interests and given them a weaker argument in tenders. The Information Commissioner opposed this stance and further submissions were needed.
  3. Legal advice with 2 concerns (1) it might affect members freedom to act (2) it would disadvantage the council with further objections – further submissions.
  4. Legal advice to the council – some agreed redactions between Information Commissioner and council which were helpful, (one less issued).
  5. Legal advice again – same issue – the Information Commissioner opposed the council’s position.
  6. Confidential information negotiations – accepted in part/opposed in others – further submissions needed.
  7. 12 (4) EIA: council asked about document issue sheets and contents re sign off – appendices in public domain read like DL – council says substance not undermined, clarification.

Council now has 7 days to provide further and final evidence on this matters as the Chairman said he wanted the examination to be complete, exhaustive and thorough.

The Information Commissioner and Mr Woodward would also be free to provide further evidence as they thought fit.

It was agreed that after the 7 days, Information Commissioner counsel and EDDC Council counsel would suggested dates for further examination with a timetable. The Tribunal will meet again at a date to be decided and, following that meeting, will give its decision (hopefully) within 2-3 weeks

Information Commissioner v East Devon District Council – report on morning session

The report below has kindly been provided by Sandra Semple, an EDA member, who agreed to attend the whole First Tier Tribunal Meeting of Information Commissioner v. EDDC. This is her personal report, does not necessarily represent the views of other EDA members and is given as a layperson with no legal training. Comments are not necessarily in the order taken but provide an overview.

First of all, see the report of Claire Wright, who also attended the morning meeting (but not the afternoon meeting) which I will not duplicate.

EDDC had provided a further 129 pages of evidence yesterday.

http://www.claire-wright.org/index.php/post/revealed_at_secrecy_hearing_eddc_overview_and_scrutiny_committee_was_given

And see also report on Save Our Sidmouth website:
http://saveoursidmouth.com/2014/08/28/east-devon-district-council-defends-decision-not-to-comply-with-freedom-of-information-commissioner-ruling-at-magistrates-court/

and here:
http://futuresforumvgs.blogspot.co.uk/

The whole argument turned on whether Mr Steve Pratten was (a) an employee of Davis Langdon (DL), or whether he was (b) an independent consultant or whether he was (c) embedded (I did keep mis-hearing “in bed with”!) EDDC as a “virtual officer”. This is relevant because if (a) or (b) then much more information is available for publication under Environmental Impact Regulations 2004 than if he is (c). Therefore EDDC evidence sought to confirm (c). This proved somewhat difficult, as Claire Wright’s report on the proceedings relates.

It also turned on what was not included in what could be put in the public domain. Mr Pratten said that in his section of the MINUTES of working party meetings (already agreed as being allowed to remain private) around 60% of the content of the minutes consisted of “cuts and pastes” from his report, leaving only 40% of his report available for consideration.

On being questioned, Mr Pratten said that Davis Langdon were invisible and silent and although presumably receiving a substantial monthly fee for providing the services of Mr Pratten they had no input whatsoever into his job.   Mr Pratten said that he attended “4 or 5 meetings” at “his” (stet) office in Bristol (i.e. Davis Langdon) with a senior partner or partners but these were “informal” and at no time did any partner express any views whatsoever on Mr Pratten’s job with EDDC – he simply updated them and kept them in the loop but they said nothing. It therefore seemed that, at these meetings, Mr Pratten spoke but no-one answered. He has not been to his Bristol office this year.

Mr Pratten said that DL’s only practical input was to check a Quality Assurance document for typing errors, checked by a Mr Knapp in the Plymouth office. Richard Thurlow, on behalf of Jeremy Woodward, said he found this baffling: quality assurance is about more than ticking boxes. What would happen if there was a mistake? Who would be liable – DL or Mr Pratt or EDDC? I do not recall this being answered.

Mr Pratten was asked about public liability: who would be sued by the council if, hypothetically, this was necessary: DL or Mr Pratten. He replied that he did not know.

He was asked about his laptop – who provided it – DL but he also had an EDDC computer. He preferred the DL computer because it was quicker and he gave Mr Cohen his reports on a memory stick. His hard drive was backed up by DL’s computer system and therefore could theoretically be available to them.

He was questioned as to why the front and back pages of his reports were DL templates. He also confirmed that he used DL software and hardware. He said that was his own preference to use DL templates and that, although the front and back were DL templates, the content inside was his. He was asked if councillors would understand this but I do not recall his reply.

He was asked what email address he used and he said sometimes EDDC and sometimes DL, whichever was most convenient at the time. He said he was full-time at EDDC though this sometimes included working from home.

I also recall him, as does Claire Wright, being asked: If EDDC wanted a second opinion, would you mind if these reports were shown to your competitors and he replied that, as long as “our” budget information was redacted (not sure who “our” was), he would be happy for them to see the reports. He was asked what DL would think about this – he said he could not say.

The Information Commissioner’s barrister than spoke of an email from them which had “slipped out” of the documentation.

Mr Pratten was asked what would happen if information was given to the public: Land values of sites for consideration could escalate, costs would go up and values go down and there might be a reduced choice of sites.

EDDC’s barrister said that their entire bargaining position and the position for sale would be weakened if the information requested was released.

Mr Pratten said that “WE provided a tender” for the work.

EDDC’s barrister was asked who was Mr Pratten’s line manager, who was responsible for hiring, firing, training and review, who would terminate his employment if this became necessary – it was reported that Richard Cohen was considered line manager but that termination would be up to DL. He confirmed that he had received no training at EDDC, that he had signed a paper on secrecy and confidentiality and Mr Cohen said that he was bound by the Code for Officers, though Mr Pratten did not say that he had read it. Mr Pratten said that he had access to the full EDDC network on the computer except “the higher level” for the CEO level. He was an officer “in all but name”.

The Chairman attempted to make a distinction a number of times between someone who was employed on a particular project and someone who was a regular officer saying that an officer was someone who was involved with the wider business of the council whereas a consultant was involved with only one aspect of the council’s work and did not get involved in the wider business of the council. Mr Cohen said several times that he was finding it hard to grasp what the Chairman was getting at and he considered Mr Pratten the same as “any other officer”.

There was therefore some discussion about what Mr Pratten was involved in and what he was not It was confirmed that no staff reported to him and he did not have any budgetary responsibility – all budget requirements were signed off by Mr Cohen.

Mr Pratten gave his evidence (after barrister’s opening comments) from around 10.20 to 11.20 then it was the turn of Mr Cohen from around 11.20 to 13.00.

Mr Cohen said that he had taken much advice on relocation and it had convinced him he needed a dedicated professional and a named individual. He mentioned Michelmore’s Solicitors, the Met Office and others to whom he had turned for advice. Relocation was a complex matter and his expertise was reflected in his reports.

Mr Cohen said that it was essential that the meetings remained secret because it was “thinking time” for him and, if they were not secret, the meetings would have to rely on verbal reports only which was not satisfactory. He and his officers and the members of the Relocation Working Party needed “thinking space”.

Mr Cohen said that the council had decided to consider options for relocation in July 2011 and Mr Pratten had been employed in April 2012. Outline planning permission for Knowle had been discussed at a DMC meeting on 1 March 2013 and was refused. No formal discussion had taken place on sites and all were open for discussion at that time.

Mr Cohen talked at length about public consultation but it appeared to this layperson that there was confusion and conflation between the statutory consultation about Knowle planning application and the separate subject of Knowle relocation – the Knowle planning application consultation being confused with relocation. Mr Cohen mentioned with regard to consultation that there had been 42 press releases on the subject, 2 meetings (one outdoors in Sidmouth, one in a community centre) and a “stakeholders meeting” (but later confirmed that the stakeholder meeting had taken place after the Knowle planning application outcome). He mentioned extensive correspondence from members of the publice (“more than 2,000 responses, but unclear whether he was talking about the planning application or the subject of relocation).

At this point, Mr Woodward said that there had been “scant information” given to the public and there was a spontaneous outburst of approbation from many members of the public present.

Mr Cohen mentioned a problem about footpath access and said that he did not wish to give information to the “other side”.

Mr Cohen was asked about the relationship between Mr Pratten, himself and DL – could DL control or restrict information from or to Mr Pratten. Would there be things that DL said No to. If the employment was not working out who would replace Mr Pratten – EDDC or DL. DL but only an applicant agreed by EDDC (Mr Cohen) but this had not been needed. Summarised as: DL was available if needed but had not been needed.

Mr Cohen was asked if he had had any meetings with DL – only at the start of the process but not since. Did Mr Pratten have decision making ability – answer: the same as other officers. Did he get involved in wider council business – no. Did he abide by the Officers Code of Conduct. This was on a “Read and Agree” basis but this was not then explained in depth.

Did Mr Pratten’s emails get send from his EDDC or his DL address – both. Who is the yes/no decision maker regarding the Code of Conduct and Mr Pratten? Mr Cohen would seek guidance from the Legal Officer and/or the Monitoring Officer.

A discussion then ensued on what damage might be anticipated from disclosure: significant issues of commercial confidentiality, site sale value, outline planning application affected, options before decisions would all be affected if the reports were made public so they needed to be limited.

The Information Commissioner’s barrister said: if Reports 1-6 walk like a duck and quack like a duck (i.e. look like consultants reports with the DL front and back sheets) would members think they were from a consultant or documents from the council. EDDC’s barrister said that this question could not be asked: it was not for Mr Cohen to guess what members might think.

EDDC’s barrister said that Mr Cohen signed off all documents before they went to meetings and he was the final arbiter of what they contained and DL had no input. The key relationship was between him and Mr Pratten not him and DL.

Mr Cohen was asked again what public consultation had been undertaken and it was noted that, for the outline planning application, it had to be resubmitted three times because of erroneous content. Mr Cohen said that this was in only one document of the 29 reports submitted. He noted the 42 press releases and the stakeholders meeting after February 2013.

The function of the Kensington Taylor consultancy was questioned. They had been appointed before the project manager to work on the design of new accommodation. They were design and architecture consultants prior to the award of the work to DL (Mr Pratten). Did they meet with other officers? Only with Mr Cohen and possibly the Financial Director and maybe the Estates team.

Was this the first example of “embedding” a consultant in the council? Yes, Mr Cohen believed it was.

The female layperson asked about Report 2: there were 2 versions of it – which version did the Overview and Scrutiny Committee of July 2013 see when they asked for an updated report on the project? Mr Cohen confirmed that it was the shorter (second) report and they had been told that confidential information had been redacted from this report and those members on the Overview and Scrutiny Committee who had seen the full report were told to “consider their position” (this was not expanded on).

The layperson then asked if EDDC had an IT policy on import and export of documents from a secondary source – Mr Cohen confirmed that it was allowed.

The Information Commissioner’s barrister asked if there had been any contact between EDDC and DL on customer satisfaction about the contract – Mr Cohen said no. He was asked if he envisaged any such contact – he said maybe at some point and there might be a need to restructure arrangements.

Mr Cohen confirmed that, to date, there had been no site purchase and no construction.

He was asked if the relocation had been discussed at any public EDDC meetings. He said yes – at four of them to his recollection (not listed) but then went on to say that he had given more information in the private part (part B) of these meetings to members only but that he thought that some appendices to reports had been made public (but did not elaborate on what they were) but confirmed no extracts from the reports had ever been made public.

The morning ended with a technical question on what a phrase “partnerships with contractors” meant in one document. Mr Cohen said that it meant examples of DL working in partnership with others.

The session ended at 13.00 hours. The Chairman said that the meeting would go into closed session at 2 pm. Mr Thurlow would not be allowed at that meeting but could submit written questions to it. In fact, the closed session lasted until 5 pm.

 

 

First report on Information Commissioner v East Devon District Council

More reports to follow.  24 members of the public attended the meeting in the morning, 4 members of the public in late afternoon:

http://www.exeterexpressandecho.co.uk/Tribunal-hearing-begins-East-Devon-District/story-22843547-detail/story.html

Today’s Tribunal : EDDC vs Information Commissioner & Jeremy Woodward

The decision of the Hearing at Exeter Magistrates’ court,  which took the whole day, is anticipated in two or three weeks’ time.

Here is where interviews, and some of today’s reports on the case, can be found:

BBC Radio Devon. Good Morning Devon interview with Jeremy Woodward 04:15-08:05 ; Jenny Kumah interviews Jeremy Woodward and Richard Thurlow  34:40-38:13; and later, discussion of how Local Authorities usually deal with Freedom of Information requests 01:35-01:40.24

http://www.claire-wright.org

http://www.saveoursidmouth.com