Wirral Council U-turn on refusal of request for information after complaint to the Information Commissioner's Office

Wirral Council U-turn on refusal of request for information after complaint to the Information Commissioner’s Office

Wirral Council U-turn on refusal of request for information after complaint to the Information Commissioner’s Office

                                               

Last year, during the 2013/14 audit I requested various information on various payments Wirral Council has made to legal firms. One of these was an invoice for £700 for conveyancing done by DLA Piper UK LLP (a copy of which is below).

Wirral Council invoice DLA Piper UK LLP conveyance £700 7th August 2013
Wirral Council invoice DLA Piper UK LLP conveyance £700 7th August 2013

As you can see above it’s for a BACS payment (although the payments over £500 list this as a CHAPS payment) for £700, split into £200 for a contribution towards sewers (although the rest of what the £200 is for can’t be made out due to bad handwriting) and £500 to do with the purchase of the freehold title.

If you look at the image above you’ll find the address of the property is blacked out. Section 15 of the Audit Commission Act 1998 allow Wirral Council to redact information if it relates to a member of their staff (or payments or other benefits made to their staff connected with their employment) or to withhold personal information if the external auditor agrees to it.

However their auditor has confirmed that there were no such requests. Wirral Council also rely on the decision in Veolia ES Nottinghamshire Ltd v Nottinghamshire County Council & Ors [2010] EWCA Civ 1214 in blacking out information that falls into the meaning of “commercial confidentiality”.

So going back to the PR1 form above I wanted to know what the address that this £700 for conveyancing spent by Wirral Council was, so back on the 26th January 2015 I asked using the Freedom of Information Act for the address.

By the 24th February 2015, having received no reply to my request of the 26th January 2015 within the 20 days Wirral Council have to respond to FOI requests, I requested an internal review because of the lack of response.

On the 23rd March 2015, a Rosemary Lyon who is a solicitor working at Wirral Council replied to my request for an internal review. She regarded the request as one that fell within the Environmental Information Regulations 2004, so considered it as a representation under regulation 11.

She then went on to refuse the request using an exception in Regulation 12(5)(e) which states:

“the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest;”

The reasons she gave for refusing the request were:                                    

“in that a public authority may refuse to disclose information to the extent that its disclosure would adversely affect the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest. I have had regard to the guidance issued by the Information Commissioner’s Office, “Confidentiality of commercial or industrial information (regulation 12 (5) (e) Version 1.2. I consider that the following applies to the requested information in the context of the other information included in the payment requisition fund:-

  • The information is commercial or industrial in nature
  • Confidentiality is provided by law
  • The confidentiality is protecting a legitimate economic interest
  • The confidentiality would be adversely affected by disclosure.

I consider that the information relates to the commercial activity of a third party. I also consider that confidentiality is provided by law in that it is imposed on the Council as a public authority by the common law of confidence and contractual obligation. I consider that the confidentiality is protecting a legitimate economic interest. The First Tier Tribunal (Information Rights) confirmed in Elmbridge Borough Council v. Information Commissioner and Gladedale Group Ltd (EA/2010/0106, 4 January 2011) that to satisfy this element of the test, disclosure of the confidential information would have to adversely affect a legitimate economic interest of the person the confidentiality is designed to protect. I consider that disclosure of the requested information would adversely affect the legitimate economic interest of the third party and also that of the Council.

This exception is subject to the public interest test.

Public interest factors in favour of disclosure

  • Promotion of transparency and accountability of public authorities

Public interest factors in maintaining the exception

  • Disclosure would adversely affect the legitimate economic interest of a third party and interfere with commercial bargaining in the context of existing or future negotiations
  • Disclosure of the requested information would also affect the bargaining position of the Council with third parties.

I consider that in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information. I am therefore refusing your request for information on the basis that the exception contained in Regulation 12 (5) (e) of the EIR applies.”

On the 25th March 2015 I appealed Wirral Council’s refusal to the Information Commissioner’s Office.

Today Wirral Council reversed their position and stated:

“Following your complaint to the Information Commissioner’s Office, the Council has decided to reverse its position, having previously relied on the exception contained in Regulation 12 (5) (e) of the Environmental Information Regulations 2004. I do not consider that releasing the information would now adversely affect the legitimate economic interest of a third party. The address of the property, which you have requested is 13 Thorneycroft Street, Birkenhead. I have copied this response to the Information Commissioner’s Office.”

Now I know the address is 13 Thorneycroft Street, Birkenhead, I know what this payment for conveyancing is for. The properties in this road as far as I remember had been demolished by the date that this payment to DLA Piper UK LLP for conveyancing happened in August 2013.

In August 2013, Keepmoat were granted planning permission for 125 new houses here and have since built them and sold them on. In fact 13 Thorneycroft Street, Birkenhead doesn’t exist any more, it’s either part of the public open space at the back of the Laird Street Baptist Church or an off-street car parking space for one of the new properties.

So what was the “legitimate interest of a third party” that Wirral Council claimed it was protecting by not supplying the address? How on earth does giving this address interfere with Wirral Council’s “commercial bargaining in the context of existing or future negotiations”?

Unlike the Freedom of Information legislation, regulation 12(2) of the Environmental Information Regulations 2004 state:

A public authority shall apply a presumption in favour of disclosure.
Wirral Council invoice DLA Piper UK LLP conveyance 7th August 2013 address added
Wirral Council invoice DLA Piper UK LLP conveyance 7th August 2013 address added

If you click on any of the buttons below, you’ll be doing me a favour by sharing this article with other people.

Planning Committee (Wirral Council) 22nd August 2013 Planning Applications affecting Bidston and St. James ward

A report on recent planning applications decided affecting Bidston and St. James ward and upcoming decisions on planning applications by Wirral Council’s Planning Committee affecting Bidston and St. James ward | 330B St Anne Street | Verosa, 122 Eleanor Road | Rosemead Residential Home 49-51 School Lane | Keepmoat | Cosy Cats Cattery Limited, 2 Lymm Road

cat Firstly a brief update on planning applications decided by Wirral Council officers affecting Bidston & St. James ward from 1st July 2013 to 11th August 2013.

The first is an application type I haven’t seen before called “Planning Pre-Application Enquiry”. Rather confusingly the decision is down as “pre-application reply” (and as it’s not classed as a planning application searching on Wirral Council’s website doesn’t bring up a decision either), but I presume if the applicant gets a positive response indicating that a planning application would be accepted then they’ll then go on to submit a planning application.

Application No.: PRE/13/00078/ENQ Application Type: Planning Pre-Application Enquiry
Decision Level: Delegated
Ward: Bidston and St James
Decision Date: 16/07/2013 Decision: Pre-Application Reply
Case Officer: Mrs S Day
Applicant: Mr Carl Haskalyne Agent:
Location: 330B ST ANNE STREET, BIRKENHEAD, CH41 4FQ
Proposal: Change of use from vacant offices to 2 flats (self contained)

The second (approved) is for a conservatory in Eleanor Road. As usual you can click on the planning application number for further details on Wirral Council’s website.

Application No.: APP/13/00510 Application Type: Full Planning Permission
Decision Level: Delegated
Ward: Bidston and St James
Decision Date: 16/07/2013 Decision: Approve
Case Officer: Mr S Williamson
Applicant: Mr R Connolly Agent: Mr Colin Medlicott
Location: Verosa, 122 ELEANOR ROAD, BIDSTON, CH43 7QS
Proposal: Conservatory to the side of the building

The third (also approved) is to change Rosemead Residential Home in School Lane back to its former use as residential properties. Again for further details you can click on the planning application number.

Application No.: APP/13/00772 Application Type: Full Planning Permission
Decision Level: Delegated
Ward: Bidston and St James
Decision Date: 02/08/2013 Decision: Approve
Case Officer: Mr N Williams
Applicant: Agent:
Location: Rosemead Residential Home, 49-51 SCHOOL LANE, BIDSTON, CH43 7RE
Proposal: Change of use from closed nursing home back to two residential semi-detached dwellings (without internal or external building works)

Unusually there are three planning applications affecting Bidston and St. James ward to be decided by the Planning Committee on Thursday (assuming that the Planning Committee doesn’t decide to go on site visits to them).

The first is Keepmoat’s plan to build 125 houses in the Milner Street/Carrington Street/Rundle Street/Laird Street area. A 20mph zone and traffic calming scheme is included as one of the conditions. Merseyside Police’s architectural liaison officer has concerns that the open nature of the scheme may increase opportunities for crime and makes some recommendations.

The area of this planning application has had houses partly demolished for some time. As tenants living in the area have been moved out and owner occupiers subject to compulsory purchase orders, it’s part of the reason why many of the nearby Laird Street have closed down. I notice also there’s a recommendation for a s.106 agreement with the developer for a very small area of public open space, although with Birkenhead Park, a play area and a games court nearby that’s why it’s smaller than the size of open space you’d expect for 125 houses. A condition (probably as a result of the police’s concerns about crime) also requires security lighting for the open space and the “proposed link to existing footpath”. Hopefully it’ll get approved (as is recommended by officers) and houses will replace the current eyesore of a site that is currently mud and half demolished houses.

The other two planning applications to be decided by the Planning Committee affecting Bidston and St. James ward are related and are both submitted by the alliteratively named Cosy Cats Cattery Limited. They are planning application APP/13/00688 for a cattery comprising of an outbuilding of fifteen small units to house a maximum of twenty cats and an isolation unit and planning application ADV/13/00689 which is for advertisement consent for a fascia sign and hanging sign (for the cattery which is planning application APP/13/00689).

Such minor planning applications would normally be decided by planning officers rather than the Planning Committee, but Cllr Jim Crabtree has removed the application from delegation following one objection to each planning application by the resident of number 2 Eleanor Road.

On the planning application for the signs, the resident objects on the basis of illumination of the signs and confusion as to where the signs will be located. However the report states the signs won’t be illuminated. The report also details where (if approved) the signs will be, one hanging from a post 1.8m high and one on the fence adjacent to the driveway facing east towards the cul-de-sac.

However the main objections from the resident of number two Eleanor Road are in relation to the proposed cattery (eleven separate objections are listed in the report). The report written by planning officers is of the opinion that the objections raised aren’t enough to refuse the application (the officers also dispute the factual accuracy of some of the objections). It’s therefore recommended it for approval, subject to conditions limiting the number of cats to twenty and the hours of operation to between 8 am and 9 pm.