Information Commissioner v East Devon District Council decision …

… has still not been published, but in the meantime, this decision on Information Commissioner v Cardiff City Council is very pertinent and could be the case law or basis of future Freedom of Information requests about council-owned buildings and a council’s refusal to provide timely information.

Indeed, the final paragraph of this case states:

62. We have concerns about the way this appeal has been pursued by the Council, and its merit. The Tribunal is considering making an order for costs against the Council under rule 10(1) of the GRC’s Rules of Procedure 2009 because it would appear the Council has acted unreasonably in bringing these proceedings. We wish to provide the Council with the opportunity to make written representations as to why we should not make such an order and as to the amount of costs or expenses to be paid, if such an order is made, within 35 calendar days of the date of this decision. We would also invite the Commissioner to make any representations he wishes to make in relation to an order for costs and the amount of costs and expenses under rule 10(6), again within 35 calendar days of this decision.

Click to access City%20of%20Cardiff%20Council,%20EA-2014-0309.pdf

Information Commissioner v EDDC: surely our officers and councillors are not holding this up until after the elections?

This is the case where the Information Commissioner ordered release of (redacted?) information on relocation discussions and costings, only for EDDC to appeal this decision.

Initially, after a hearing at Exeter Magistrates Court in August 2014, we were told at that time by the judge that a judgment could be expected in late 2014 or early 2015,

It is now late April 2015 and no sign of it.

Surely our officers and (current) councillors are not dragging this out until after elections?

What could possibly be in these documents that would cause such a delay?

Information Commissioner and Woodward v East Devon District Council decision close

AFTER a seven-month wait, the outcome of a costly tribunal which examined whether East Devon District Council should publish reports regarding its controversial relocation project, is expected imminently.

So far, the council has spent £10,200 on legal costs in its appeal against the Information Commissioner’s decision that it should have disclosed certain information regarding its relocation project, as a result of a Freedom of Information request made by Sidmouth resident Jeremy Woodward.

Following the hearing at Exeter Magistrates’ Court on August 28, further written submissions were made and, at the time, a four-week wait was expected. However, the legal process instead continued for almost seven months, and due to legal sensitivities the authority has not been able to give any details as to why.

In February 2013, Mr Woodward requested all internal correspondence between council officials regarding the office relocation. This, and requested minutes from Office Relocation Working Party group meetings, were refused.

However, the commissioner ruled that reports written by an outside consultant were not covered by exemptions and should be revealed.

Deputy chief executive Richard Cohen told the First Tier Tribunal at Exeter Magistrates’ Court that the role of the author of the reports, project manager Steve Pratten, who works for Davis Langdon LLP, closely resembles that of an officer and therefore the contents of his reports should not be disclosed.

The judgement was expected last Friday, March 27, but was not forthcoming.

Criticism was heaped on the council for scheduling its full council meeting, to decide upon its office relocation, two days before the tribunal decision was due. On Wednesday, March 25, members resolved to relocate from its Sidmouth headquarters to new purpose-built offices in Honiton, and Exmouth Town Hall.

A council spokesperson, said: “The council is surprised that the target date has passed and the outcome of the tribunal’s deliberations has not yet been handed down.

“Along with all the other parties, we await the judgment and hope that the waiting will soon be over, but we are subject to the tribunal’s scheduling.”

http://www.exeterexpressandecho.co.uk/Tribunal-end-sight-East-Devon-District-Council/story-26271724-detail/story.html

New Monitoring Officer for EDDC?

Will EDDC have three Monitoring Officers in the space of a year? A specially stressful job in an authority which engenders an unusually high number of complaints, perhaps? Or simply a natural process?
Rumour has it that Henry Gordon Lennox is now poised to take over from interim MO, Ian Clarke, shared with South Somerset District Council.
If so, wonder when and where the job would have been advertised? And how many people applied?

Not what EDDC does, only what EDDC says …

If, as (current) Leader Diviani believes (as he has recently said, that the consultants reports of 2013 on relocation were “not relevant” to current meetings (and their rescheduling to end hours before the Information Commission’s decision on said disclosure) –

Why has EDZdC spent £10,000 plus on legal advisers to attempt keep them secret?

… OF FREEDOM OF INFORMATION AND MANAGED DEMOCRACY: A PERSONAL VIEW OF EAST DEVON

Jeremy Woodward, whose Freedom of Information requests led to the current court case betweem the Information Commissioner and EDDC pens his personal story:

It all started with a simple request back in November 2012. I had asked the chair of the DMC – the Development Management Committee, which is the District Council’s planning committee – for details about the secretive ‘Office Accommodation Working Parties’. (I later discovered that there are in fact several of these…). This was because I thought there might be conflicts of interest should any from one committee be sitting on another committee, as the DMC was expecting to consider the Council’s own planning application for Knowle. Moreover, I had also asked for access to the ‘Reports, Action Notes and Updates’ on relocation which had been presented to Cabinet meetings, as I felt they should be available for ‘public scrutiny’ in the context of the planning application.

Of course the answer was ‘No’ to all of these. Perhaps that was to be expected, and over the coming months and years it became clear that the East Devon District Council is really one of the most intransigent and arrogant local authorities in the area not to mention the most secretive and least transparent.

For example: if you go to the whatdotheyknow website and type in the name of a pubic authority, whilst Mid Devon has 117 Freedom of Information requests, North Devon 102, West Devon 105, Teignbridge 109, Torridge 101 and South Hams zero, East Devon has 299 to date – three times that of any other in Devon.

Of course, East Devon District Council is not alone in refusing to allow more transparency when it comes to its planning decisions. To put this into context, the Guardian’s architecture correspondent Oliver Wainwright looked into ‘the truth about property developers and how they are exploiting planning authorities’ – and he concluded after considerable research that “Across the country authorities are allowing planning policies to be continually flouted, affordable housing quotas to be waived, the interests of residents endlessly trampled.”

These same authorities will insist that they cannot divulge any pertinent information because it is ‘confidential’. However, as Wainwright noted, “confidentiality is closely guarded, in order to preserve developers’ trade secrets, but where the sale of public assets is concerned, there is increasing pressure for the books to be opened.” And the pressures are increasing – helped largely by the Freedom of Information Act.

To quote again from Wainwright on a specific but illuminating case of cosy relationships: “Without some commercially sensitive information remaining private, developers could simply refuse to work with councils, leaving boroughs without the housing and regeneration we all need,” says a spokeswoman for Southwark Council. The borough brought a legal challenge against a decision by the Information Commissioner’s Office last year ordering the council to disclose the full details of a viability report, after a freedom of information request was denied. The tribunal concluded that the information must be disclosed, stating … ‘the importance … of local people having access to information to allow them to participate in the planning process’. It sets an encouraging precedent for campaign groups battling similar situations elsewhere.”

And perhaps we can be similarly ‘encouraged’ – especially as the FOI Act in the UK seems to be working to some extent. Most famously, Heather Brooks broke the MPs’ expenses scandal story by first filing an FOI request. In other words, much of this has been achieved only through the clenched teeth of the powers that be: Tony Blair regretted the introduction of the Act and, still, government generally would like to see the FOI Act ‘neutered’ and is not “embracing the spirit of openness but [prefers] finding ways of avoiding compliance while staying within the letter of the law.”

Disappointingly, in the USA, which trail-blazed the whole notion of freedom of information, the FOI system does not seem to be working – to such an extent, that in the wake of Edward Snowden’s revelations about how the National Security Agency abuses access to information, people now believe that transparency can only be gained through whistleblowing: “[the NSA] don’t release anything through normal means. The only way the public really learns about them is through leaks.” Ironically, Snowden is now in exile in Russia, where lies and secrecy are the norm, where there is absolutely no tradition of a civil society and where the arrogance of power is all pervading.

Which brings me to the question of: How is it possible for them to get away with it? After all, whilst the UK is not Russia, nevertheless, it does seem that those in power will generally prefer to deal with others in power and seek to limit the amount of information the common man should have access to.

On the one hand, we have ‘managed democracy’ – and the example of Russia is pertinent, as ‘Putin’s puppet-master’ Vladislav Surkov and other ‘political technologists’ seem to have done very well in creating a society of ‘pure spectacle’. And yet in the West, we have many more years’ practice: it was Edward Bernays, father of the modern PR industry (and nephew of Sigmund Freud) who said: “The conscious and intelligent manipulation of the organized habits and opinions of the masses is an important element in democratic society… It is the intelligent minorities which need to make use of propaganda continuously and systematically.”

And so we have the churning out of press releases from the East Devon District Council reassuring us that everything’s alright and that we can sleep well in our beds – whether it’s the surreal nonsense of ‘Another happy year for Cranbrook’, which contrasts somewhat with several other perspectives, or the production of clever pictograms to sell the notion of energy savings by relocating from Knowle, or the announcement that Skypark is no longer the centre of the known universe.

Meanwhile, the situation around the Knowle relocation project gets progressively more Kafkaesque , with “misleading figures, loaded and biased consultations and the heavy handed (and expensive) use of lawyers to force a decision through…” – all of which contrasts with a set of hopelessly out-of-date ‘Moving and Improving’ pages which provide plenty of questions but very few answers.

On the other hand we have what politicians complain of as the ‘democratic deficit’ – ie, that nobody can be bothered because we can’t make a difference anyway. Of course, we are ‘too busy changing nappies to change the world’ – although we manage to enjoy our regular dose of ‘bread and circuses’. Besides, as the stand-up comedian George Carlin said about the American Dream , we are expected to be “just smart enough to run the machines and do the paperwork. And just dumb enough to passively accept all” the other stuff.

Meanwhile back in East Devon, we have a Scrutiny Committee which does not scrutinise and a system which prefers patronage and cronyism to serving constituents.

In May 2011, the new District Council administration announced “a fresh outlook on serving East Devon for the next term, with a promise of greater transparency.” And yet it was Anna Minton’s excoriating analysis of ‘the local mafia’ in East Devon which captured the sense that ‘there have been a large number of concerns about the operation of the council subverting the democracy process… and that this culture won’t change.’ In the meantime, there are still serious, unanswered questions about lobbying and transparency – and particularly about the ex-Councillor Graham Brown saga and the influence of the East Devon Business Forum, especially with regard to development – all of which the District Council has been determined to both ignore and quash.

And so it is left to those ‘outside’ to ask the difficult questions and to try to bring to account those who manage our democracy. The Freedom of Information system might be flawed and terribly slow, but it is one of the few mechanisms we have to challenge the arrogance and insulation of power.

Jeremy Woodward
28th Feb 2015

Claire Wright urges postponement of Knowle decision till after judgment on Information Commissioner v EDDC court case

The court case, about whether consultants reports on relocation should be disclosed to the public is due 2 days after the rushed decision is to be taken. Claire Wright urges the council to consider its reputation:

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

Information Commissioner v EDDC: decision two days after rushed Knowle meetings!

Ah, now we understand! Clever Mr Cohen!

… After months of wrangling it appears that the issue will come to a head next month, with a judgement set to be handed down on Friday 27 March.

BUT conveniently, EDDC has set its extraordinary meeting on the office relocation for Wednesday 25 March – just TWO DAYS before the judgement is set to be published.

So, members of the public are set to be kept in the dark about these reports until after the decision has been made – which one might think, was the aim of these EDDC induced delays all the way along. They have managed to limp it along until two days after the decision is made.

http://www.claire-wright.org/index.php/post/eddc_legal_fees_spent_on_fighting_information_commissioner_now_over_10000

That smell … it’s getting stronger and stronger …

Council forced to un-redact redacted information on housing viability assessment

No, not EDDC, though no doubt if we had any numbers available they would automatically want to redact them! But if any figures WERE redacted from developers affordable housing changes (Tesco, Seaton?) this probably means that they must now be revealed and may have major implications for all other “commercial confidentiality” excuses made by EDDC – past, present and future:

“The First-tier Tribunal has ordered a London council to disclose redacted information in a viability assessment that led to the authority allowing a developer to vary the amount of affordable housing on a major site.

The background to the case of Royal Borough of Greenwich v IC and Shane Brownie EA/2014/0122 was a deed of planning obligation dated 23 February 2004 concerning the development of the Greenwich Peninsula.

The commitments entered into by the developers included one that 38% of the more than 10,000 homes to be built would be ‘affordable’.

Following the 2008 financial crisis work on the development stalled. In 2012 there was a risk of a £50m housing grant being lost.

The developers approached the Royal Borough of Greenwich asking to be released from some of their promises to build affordable homes. The revised proposal – affecting 11 plots – moved some of the affordable homes from the more attractive areas of the site which have river views; the number of affordable homes was also reduced by about 500.
One of the developers, Quintain (whose interest has since been bought out by Knight Dragon), commissioned an ‘economic viability report’ from BNP Paribas.

Dated 23 January 2013, it stated on the cover “FOIA exemption Sections 41 and 43(2) Private and Confidential”. Paragraph 1.4 of the report said the report was being provided to the council on a confidential basis. It also requested that the report not be disclosed to third parties under FOIA.

The FTT noted that companies could ask for exemptions or exceptions to be considered, but they were not decision makers in relation to freedom of information. “That task falls to the public authority, the ICO and, sometimes, the Tribunal,” it said.

Greenwich asked another firm, Christopher Marsh & Co, to review the BNP Paribas report. Then, on 28 February 2013 the council’s planning board approved the proposed variation to the deed of planning obligation.

Two months later Knight Dragon approached the council again for the variation itself to be varied. This was approved by the planning board on 25 June 2013.

On 12 June a local resident, Shane Brownie, submitted an FOI request to obtain a copy of the financial viability report.
The council disclosed both the BNP Paribas report and a letter from Christopher Marsh & Co. However, both documents were subject to redactions under regulation 12(5)(e) governing confidential commercial information.

It was these redactions that were at the heart of the dispute. The Information Commissioner overturned the council’s decision to redact the documents. Greenwich appealed to the First-Tier Tribunal.

The FTT conducted a public interest balancing exercise as the exception under regulation 12(5)(e) only applies if in all the circumstances of the case, the public interest in maintaining it outweighs the public interest in disclosing the information. The presumption is in favour of disclosure.
The Tribunal said two factors told particularly in favour of disclosure:

The number of affordable homes to be provided on what was an enormous development, as well as their location, was an important local issue on which reasonable views were held strongly on both sides;

This was a case where a company, robust enough to take on the development of a huge site over a period of 20 years, acquiring its interest in 2012 and increasing its share in 2013, immediately asked to be relieved of a planning obligation freely negotiated by its predecessor. “It justifies this change on the basis of a downturn in house prices it knew about at the time of purchase, using a valuation model that looks at current values only and does not allow for change in the many factors that may affect a valuation over time. It seems to us that in those circumstances the public interest in openness about the figures is very strong.”

The Tribunal said: “Having weighed all the evidence and arguments, in our judgement the admittedly important public interests in maintaining the regulation 12(5)(e) exception in this case do not outweigh the public interest in disclosing the information.”

The residents were represented by Michael Armitage, having also been advised during the proceedings by Julianne Kerr Morrison (both on a pro bono basis). Gerry Facenna acted for the Information Commissioner. All three are barristers at Monckton Chambers.

http://localgovernmentlawyer.co.uk/index.php?option=com_content&view=article&id=21663:tribunal-tells-council-to-disclose-redactions-from-housing-viability-assessment&catid=60&Itemid=28

The missing 6,000 plus voters: Freedom of Information request uncovers worrying developments

It would appear that, far from carrying out telephone enquiries in preference to door-to-door canvassing, the East Devon Electoral Returning Officer (Mark Williams, also CEO of East Devon District Council) did no canvassing at all for several years. Also that the Electoral Commission was aware if this. Indeed, we have no idea what canvassing was done before 2011 because EROs reported on their own performance with no checks or balances at all until then!

What on earth is going on? Will we ever know – as the ERO himself is exempt from answering Freedom of Information requests and, when asked by the Parliamentary Committee who his boss was he said “No-one”. Only the fact that the Electoral Commission IS expected to comply with the Freedom of Information Act revealed the true situation.

https://www.whatdotheyknow.com/request/electoral_registration_is_teleph

It would also seem clear that laws may have been broken but, if that is the case, that there will be no sanction as (thanks to EDA and Mr Freeman) at least 28 people are now out in the community correcting a situation that could have affected the outcome of recent European elections when the missing voters might have changed the result.

It should be noted that Mr Williams has refused to answer questions put to him by local residents on this matter because he says he is “too busy” dealing with the current situation.

It seems that, as canvassing is now being done , the Electoral Commission is happy to sweep the past under an already very dusty carpet.