28/11/2019 13:18

Scottish Information Commissioner
Kinburn Castle,
St Andrews, Fife KY16 9DS

Dear Sir

Reason for Appeal and Background details -

I am writing as instructed by Gerry Mahon, Chief Officer - Legal and Procurement, Legal Services, East Renfrewshire Council(ERC) HQ, Giffnock, G46 6UG in his email of 7 August 2019, to appeal the decision by him to withhold the recorded information requested from East Renfrewshire Council by FoI.

My Freedom of Information(FoI) request was made to East Renfrewshire Council (ERC).

FOI was for all correspondence and Documents/reports produced by Peter Brett Associates and ERC in regard to Visioning & Masterplanning of Eastwood Park.

I am making this application on behalf of myself.

My preferred method of contact is by e-mail.

Timetable of events -

29 May 2019 - FOI request to East Renfrewshire Council.
26 June 2019 - ERC responded .
9 July 2019 - Request for review to ERC.
7 August 2019 - Review response received from ERC.

I have attached copies of all the above correspondence to this email/appeal.

I request that the following regarding the withholding of the requested reports/documents etc are addressed in the appeal -


The Council made a decision based on these Documents/reports at their meeting on 26 June 2019.

The Director of Environment is denying East Renfrewshire Council Tax Payers the information to properly scrutinise the decision made by the Council.

This Council decision cannot be scrutinised as the Documents/Reports available at the time have been withheld and/or deleted.

It is now in the Public Interest that these Reports/Documents are not withheld as The Council made a decision based on these Documents/reports at their meeting on 26 June 2019.

As said, this decison cannot be scrutinised without access to the requested Documents/Reports.

The Director of Environment says -

'The Council does hold further information received within the timescale stated in your request. However, in terms of paragraph 10 (4) (d) of the Environmental Information (Scotland) Regulations 2004 I consider this information is exempt because it is in draft form, in the course of completion and is an unfinished document.
In terms of regulation 10 (1) (b) I am also satisfied that the public interest in making the information available is outweighed by the proposal to make the exemption.'

But what of the Reports/documents supplied by Peter Brett Associates?

Surely they are not 'in draft form, in the course of completion and is an unfinished document.' ?

So why are they being withheld?

Councillors had access and can read these Documents/Reports -

In regard to these Documents/Reports Councillor Stewart Miller in their email of 4 July 2019 stated 'I am sure you are well aware that Cllrs can ask to see any report they wish' -

'-------- Original message --------
Date:04/07/2019 20:47 (GMT+00:00)
From:[name]
To: "Miller, Stewart (Cllr)" < This e-mail address is being protected from spambots. You need JavaScript enabled to view it >
Subject: Re: Urgent - Eastwood Park Reports by Peter Brett Associates
Hi Stewart
Would appreciate answer to -
Have Councillors seen/read had access to any of these reports?
Thanks
[name]'

'------ Original Message ------
From: "Miller, Stewart (Cllr)" < This e-mail address is being protected from spambots. You need JavaScript enabled to view it >
To: [name]
Sent: Thursday, 4 Jul, 2019 At 23:02
Subject: Re: Urgent - Eastwood Park Reports by Peter Brett Associates
[name]
I am sure you are well aware that Cllrs can ask to see any report they wish
Regards
Stewart'


In regard to these Documents/Reports the Director of Environment in their email of 4 September 2019 to Councillor David MacDonald stated - 'Having discussed the matter further with the Chief Officer – Legal and Procurement he has advised that provided it was relevant to your remit and Council business I could let you see the document.’

Extract from Email -
'From: Cahill, Andrew
Sent: 04 September 2019 18:08
To: Macdonald, D (Cllr)
Subject: Eastwood leisure centre
Dear David………………………
‘Having discussed the matter further with the Chief Officer – Legal and Procurement he has advised that provided it was relevant to your remit and Council business I could let you see the document.’
….…………………..Regards
Andy
Andrew Cahill
Director of Environment'

The Director of Environment, Mr Cahill has stated -

'I have to say that I do not see what public interest could be served by releasing the consultant’s report to an individual before elected members have seen it through the channels I propose. The previous consultant’s reports relating to the leisure centre were handled in this manner and full public access to those reports was provided through that mechanism at the appropriate time.'

In this case there is a major difference -

At the Council meeting held on 26 June 2019 Councillors made a decision based on the current Documents/Reports/Information available to Mr Cahill.

Again, as said above, Elected Members[Councillors] can read the Documents/Reports.

Peter Brett Associates were given at least £49,000.00 of Council Tax Payers money and confirmed, to ERC, that for this £49,000.00 contract, they would produce Reports/Documents in regard to the Visioning & Masterplanning of Eastwood Park.

'28 January 2019 - Start
25 February 2019 - Visioning Report Draft
18 March 2019 - Visioning Report Final
1 April 2019 - Masterplan Draft
22 April 2019 - Masterplan Final
22 April 2019 - Action Plan / Road Map
The outputs for the project will include the following:
a. A Visioning report for the Campus – which outlines proof on concept – present & future uses, landscaping (hard & soft) and building enhancement potential.
b. Masterplan layout options for the site & presentation
c. Action plans/implementation road map/phasing with cost implications
d. Access and Transport review (including junction modelling & case for 2nd access and improved connections)
e. Community Benefits - details of how the new buildings will derive benefits for the Council and the wider community.
To enable delivery of above, PBA will utilise their multi-disciplinary team to provide planning, transport and economic inputs to the study.
This will be supplemented by Stallan Brand architects who will bring their significant architectural experience to assist in the design and visualisation of the masterplan options and the preparation of the visioning report and 3D images.'

It is now over 11 months and the Director of Environment has refused to publish any requested Documents/reports including any of the requested above received from Peter Brett Associates.

Peter Brett Associates were given at least £49,000.00 of Council Tax Payers money and confirmed, to ERC, that for this £49,000.00 contract, they would produce Reports/Documents in regard to the Visioning & Masterplanning of Eastwood Park yet Chief Officer - Legal and Procurement states -

So what have Peter Brett Associates been doing for their £49,000.00 ?

Surely they must have produced at least 1 Document/Report and/or sent at least 1 email etc?

Surely they must have requested at least 1 payment and/or at least have been paid something for their work?

It is my opinion any timescales for withholding have been exceeded including the timescale of 6 to 8 weeks given by Chief Officer - Legal and Procurement, Legal Services, East Renfrewshire Council -

'It is now envisaged that the process of review, assuming it is finalised without the need to return to the authors, will be concluded within the next 6-8 weeks.'



In regard to these Documents/Reports the Director of Environment in their email of 4 September 2019 to Councillor David MacDonald stated - 'They were not retained as documents.'

Extract from Email -
'From: Cahill, Andrew
Sent: 04 September 2019 18:08
To: Macdonald, D (Cllr)
Subject: Eastwood leisure centre
Dear David………………………
‘They were not retained as documents.
….…………………..Regards
Andy
Andrew Cahill
Director of Environment'

I am extremely concerned at the deletion of these Documents/Reports by the Director of Environment.

Why should it not be concluded that the only reason the Director of Environment is taking this course of action is to avoid Freedom of Information disclosure? -

- Receive reports/documents from company/consultants
- Claim a work in progress.
- The documents when finalized for the end report are then destroyed.
- The final report is never finished until the Director of Environment publishes it.


It would appear Mr Cahill and Mr Mahon(Chief Officer - Legal & Procurement) think they have found a way around disclosure -

- Claim a work in progress.

- The documents when finalized for the end report are then destroyed.

- The final report is never finished until he publishes it.


It is hard to believe that the Director of Environment has undertaken all this work on their own.

I would request that the following is relevant to my appeal and is considered and addressed in your appeal review -

At the Full Council meeting on 26 June 2019(Agenda Item 11) a recommendation that the Council ‘Approves Eastwood Park as the preferred site for a new Eastwood Leisure Centre and theatre;’

was approved.

It seems unbelievable that the Director of Environment would make such an important recommendation based on evidence ' in draft form, in the course of completion and is an unfinished document.'

It is imperative that East Renfrewshire Council Tax Payers have access to the evidence that the Director of Environment had when coming to their recommendation.

As the decision has been made there is now no reason to withhold any of the requested Information/Reports/Documentation.

It seems incredible that the Director of Environment can make a recommendation to Full Council but not publish the documentation/reports that their decision was based on.

As East Renfrewshire Council Tax Payers paid £49,000.00 for this work surely they should be able to read these reports to scrutinise the evidence that the Director has based their recommendation on.

It appears the information is available to Councillors.

My Councillor Stewart Miller has replied -

'----- Original Message ------
From: "Miller, Stewart (Cllr)" < This e-mail address is being protected from spambots. You need JavaScript enabled to view it >
To:[name]
Sent: Thursday, 4 Jul, 2019 At 23:02
Subject: Re: Urgent - Eastwood Park Reports by Peter Brett Associates
[name]
I am sure you are well aware that Cllrs can ask to see any report they wish
Regards
Stewart'

to my question - 'Have Councillors seen/read had access to any of these reports?'

regarding Eastwood Park Reports by Peter Brett Associates.


In regard to these Documents/Reports the Director of Environment in their email of 4 September 2019 to Councillor David MacDonald stated - 'Having discussed the matter further with the Chief Officer – Legal and Procurement he has advised that provided it was relevant to your remit and Council business I could let you see the document.’

Extract from Email -
'From: Cahill, Andrew
Sent: 04 September 2019 18:08
To: Macdonald, D (Cllr)
Subject: Eastwood leisure centre
Dear David………………………
‘Having discussed the matter further with the Chief Officer – Legal and Procurement he has advised that provided it was relevant to your remit and Council business I could let you see the document.’
….…………………..Regards
Andy
Andrew Cahill
Director of Environment'



The Director should publish all below Information/Reports/Documents from the Peter Brett Associates revised Project Plan -

28 January 2019 - Start
25 February 2019 - Visioning Report Draft
18 March 2019 - Visioning Report Final
1 April 2019 - Masterplan Draft
22 April 2019 - Masterplan Final
22 April 2019 - Action Plan / Road Map
The outputs for the project will include the following:
a. A Visioning report for the Campus – which outlines proof on concept – present & future uses, landscaping (hard & soft) and building enhancement potential.
b. Masterplan layout options for the site & presentation
c. Action plans/implementation road map/phasing with cost implications
d. Access and Transport review (including junction modelling & case for 2nd access and improved connections)
e. Community Benefits - details of how the new buildings will derive benefits for the Council and the wider community.
To enable delivery of above, PBA will utilise their multi-disciplinary team to provide planning, transport and economic inputs to the study. This will be supplemented by Stallan Brand architects who will bring their significant architectural experience to assist in the design and visualisation of the masterplan options and the preparation of the visioning report and 3D images.

Again, I can see no reason why these Documents/Reports and Information should not be published.


I have Attached Emails etc below -

Thanks

1/12/2019
Scottish Information Commissioner
Kinburn Castle,
St Andrews, Fife KY16 9DS

Dear Sir

Reason for Appeal and Background details -

I am writing as instructed by Gerry Mahon, Chief Officer - Legal and Procurement, Legal Services, East Renfrewshire Council(ERC) HQ, Giffnock, G46 6UG in his email of 6 November 2019, to appeal the decision by him to withhold the recorded information requested from East Renfrewshire Council by FoI.

My Freedom of Information(FoI) request was made to East Renfrewshire Council (ERC).

The FOI request concerned all recorded information regarding the Visioning & Masterplanning of Eastwood Park by East Renfrewshire Council and Peter Brett Associates and any others, from 1 January 2019.

ERC were asked to provide all recorded information.

I am making this application on behalf of myself.

My preferred method of contact is by e-mail.

Timetable of events -

3 September 2019 - FOI request to East Renfrewshire Council.
3 October 2019 - ERC responded .
8 October 2019 - Request for review to ERC.
6 November 2019 - Review response received from ERC.

I have attached copies of all the above correspondence to this email/appeal.

I request that the following regarding the withholding of the requested reports/documents etc are addressed in the appeal -

My FOI request was relevant and has not been answered in a previous FOI request.

East Renfrewshire Council (ERC) only keep emails for 3 months.

I don't think it unreasonable to submit FOI requests to take account of this as in these circumstances the project/work has been on-going for nearly 1 year.

FOISA Exceptions Guidance - Material which is still in the course of completion 19. This suggests that a document will have more work done on it within some reasonable timeframe.

I do not believe that ERC can use as an excuse the report is still in the course of completion, by claiming that it MAY be updated before production to the council.

FOISA Exceptions Guidance - Unfinished documents 20. This wording suggests that unfinished documents are distinct from material in the course of completion.

It appears unlikely that this category would include any document on which no further work was intended, even if the document is unfinished.

How can ERC claim that the Brett docs are unfinished?

FOISA Public Interest -

I would have to suggest that it is not an unfinished document.


The Council made a decision based on these Documents/reports at their meeting on 26 June 2019.

The Director of Environment is denying East Renfrewshire Council Tax Payers the information to properly scrutinise the decision made by the Council.

This Council decision cannot be scrutinised as the Documents/Reports available at the time have been withheld and/or deleted.

Councillors had access and can read these Documents/Reports -

In regard to these Documents/Reports Councillor Stewart Miller in their email of 4 July 2019 stated 'I am sure you are well aware that Cllrs can ask to see any report they wish' -

'-------- Original message --------
From: [name]
Date:04/07/2019 20:47 (GMT+00:00)
To: "Miller, Stewart (Cllr)" < This e-mail address is being protected from spambots. You need JavaScript enabled to view it >
Subject: Re: Urgent - Eastwood Park Reports by Peter Brett Associates
Hi Stewart
Would appreciate answer to -
Have Councillors seen/read had access to any of these reports?
Thanks
name'

'------ Original Message ------
From: "Miller, Stewart (Cllr)" < This e-mail address is being protected from spambots. You need JavaScript enabled to view it >
To: [name]
Sent: Thursday, 4 Jul, 2019 At 23:02
Subject: Re: Urgent - Eastwood Park Reports by Peter Brett Associates
[name]
I am sure you are well aware that Cllrs can ask to see any report they wish
Regards
Stewart'


In regard to these Documents/Reports the Director of Environment in their email of 4 September 2019 to Councillor David MacDonald stated - 'Having discussed the matter further with the Chief Officer – Legal and Procurement he has advised that provided it was relevant to your remit and Council business I could let you see the document.’

Extract from Email -
'From: Cahill, Andrew
Sent: 04 September 2019 18:08
To: Macdonald, D (Cllr)
Subject: Eastwood leisure centre
Dear David………………………
‘Having discussed the matter further with the Chief Officer – Legal and Procurement he has advised that provided it was relevant to your remit and Council business I could let you see the document.’
….…………………..Regards
Andy
Andrew Cahill
Director of Environment'


Peter Brett Associates were given at least £49,000.00 of Council Tax Payers money and confirmed, to ERC, that for this £49,000.00 contract, they would produce Reports/Documents in regard to the Visioning & Masterplanning of Eastwood Park.

'28 January 2019 - Start
25 February 2019 - Visioning Report Draft
18 March 2019 - Visioning Report Final
1 April 2019 - Masterplan Draft
22 April 2019 - Masterplan Final
22 April 2019 - Action Plan / Road Map
The outputs for the project will include the following:
a. A Visioning report for the Campus – which outlines proof on concept – present & future uses, landscaping (hard & soft) and building enhancement potential.
b. Masterplan layout options for the site & presentation
c. Action plans/implementation road map/phasing with cost implications
d. Access and Transport review (including junction modelling & case for 2nd access and improved connections)
e. Community Benefits - details of how the new buildings will derive benefits for the Council and the wider community.
To enable delivery of above, PBA will utilise their multi-disciplinary team to provide planning, transport and economic inputs to the study.
This will be supplemented by Stallan Brand architects who will bring their significant architectural experience to assist in the design and visualisation of the masterplan options and the preparation of the visioning report and 3D images.'

It is now over 11 months and the Director of Environment has refused to publish any requested Documents/reports including any of the requested above received from Peter Brett Associates.

Peter Brett Associates were given at least £49,000.00 of Council Tax Payers money and confirmed, to ERC, that for this £49,000.00 contract, they would produce Reports/Documents in regard to the Visioning & Masterplanning of Eastwood Park yet Chief Officer - Legal and Procurement states -

'Subsequent to these checks I am satisfied that no further documentation beyond the draft report previously discussed is held'

So what have Peter Brett Associates been doing for their £49,000.00 ?

Surely they must have produced at least 1 Document/Report and/or sent at least 1 email etc?

Surely they must have requested at least 1 payment and/or at least have been paid something for their work?

Chief Officer - Legal and Procurement, Legal Services, East Renfrewshire Council -
'I have requested further checks of records held to establish if any information beyond that already disclosed to you exists. Subsequent to these checks I am satisfied that no further documentation beyond the draft report previously discussed is held. '

The work has been going on for 12 months and only 1 draft has been produced?

The work has been going on for 12 months and ERC only hold only 1 draft document/report?

This is very hard to believe considering this project/work.

It is my opinion any timescales for withholding have been exceeded including the timescale of 6 to 8 weeks given by Chief Officer - Legal and Procurement, Legal Services, East Renfrewshire Council -

'Turning to the report referred to above, I appreciate that a previous review decision intimated an envisaged date for finalisation some 6 to 8 weeks after its issue'

I wish to register my great concern over the deletion of reports/documents and request that you investigate the reasons for the deletion of these reports/documents.

Why should it not be concluded that the only reason the Director of Environment is taking this course of action is to avoid Freedom of Information disclosure? -

- Receive reports/documents from company/consultants
- Claim a work in progress.
- The documents when finalized for the end report are then destroyed.
- The final report is never finished until the Director of Environment publishes it.

The Director of Environment has published an email giving details of a further £2100.00 spend with Robinson Low Francis LLP - NQ71-ERC-02 Cost Information for Eastwood Park Masterplan -

Are these Documents/Reports from Robinson Low Francis LLP being withheld?

There is no reason given for withholding any of these Documents/Reports.

It is hard to believe that the Director of Environment has undertaken all this work on their own.

It is hard to believe they have had no contact with anyone else (except Hub West Scotland Ltd).

Again I would request that the appeal addresses why ALL the information has not been disclosed -

'Correspondence/Emails/Letters/Contact/documents/reports etc between/to and from

East Renfrewshire Council (ERC)( Employees/Officers/Officials) and ERC( Employees/Officers/Officials)
ERC( Employees/Officers/Officials) and ERC Councillors
ERC( Employees/Officers/Officials) and Peter Brett Associates
ERC( Employees/Officers/Officials) and Others'

Again, I would request that you review why no payment details and/or invoices have been provided.


I would request that the following is relevant to my appeal and is considered and addressed in your appeal review -


My understanding of the section 30(as per the Scottish Information Commissioner briefing paper) is that ( and (C) should not be used together for the same information.

In addition the public interest test must be laid out with pros and cons, and additional material arguments due to application of that exemption.

Although the exemption will often be applied to advice or to an exchange of views, it can apply to other types of information.

What is important is whether the disclosure would have an inhibiting effect on the provision of advice or on the exchange on views.

“Likely”
20. The exemptions in section 30(b) can only be applied where disclosure would, or would be likely to, cause substantial inhibition.
There must be at least a significant probability that substantial inhibition would occur in order for the exemption to be appropriately applied. There must be a genuine link between disclosure and inhibition: it cannot simply be a remote or hypothetical possibility.

“Substantial inhibition”
21. “Inhibit” is not defined in FOISA. This is the only exemption in FOISA where this terminology is used. In the context of section 30(b), it means to restrain, decrease or suppress the freedom with which opinions or options are expressed.
The inhibition caused by disclosing the information must be of real and demonstrable significance, rather than simply marginal, before the exemption can be applied.

Factors to consider
22. When assessing whether disclosure will cause substantial inhibition, an authority should consider the content of the information and the circumstances in which it was created.

I see no reason to believe that The Director of Environment has considered these facts.

Factors to consider may include:
(i) the identity or status of the author and/or the recipient. There may be an inherent sensitivity in the fact that advice or views were passed from one person to another, depending on the relationship between those parties. Where advice or views are communicated and received as part of an individual’s day-to-day professional functions, for example, then the risk of substantial inhibition may well be diminished.
(ii) the circumstances in which the advice or views were given. The context in which the communication took place might be relevant; for instance, views might be more sensitive during policy formulation or other discussions.
(iii) the sensitivity of the advice or views. The subject matter and content of the advice and opinions, as well as the way in which the advice or opinion is expressed, are likely to be relevant when determining whether the exemption applies.
23. See Appendix 1: Resources for examples of the Commissioner’s decisions on section 30(b).

A chilling effect?
24. Some public authorities have argued that disclosing any advice or views makes it inevitable that officials will conclude that other internal communications will probably have to be disclosed, thereby inhibiting the way in which advice or views are given in the future.
This is sometimes known as “the chilling effect”.
25. The Commissioner does not accept that the disclosure of advice or views in one case will have a substantially inhibiting effect in all others.
The exemptions in section 30(b) must not be treated as “class exemptions”. (Class exemptions – such as the exemptions in section 29 – allow information to be withheld if it falls into a particular category, e.g. Ministerial communications.)
With section 30(b), authorities must consider the content of the information before deciding whether disclosure would, or would be likely to, cause substantial inhibition.
26. The Commissioner believes officials are capable of understanding that some information of a particular type may be disclosed, while other information of the same type may be withheld, depending on the circumstances. Decisions are always taken on a case-by-case basis: disclosing advice or views in one case does not imply that information in another case will also have to be disclosed.
The Commissioner’s decisions since FOISA came into force back this up.
27. The Commissioner recognises that the general right of access provided by FOISA must be balanced against the need to protect genuinely sensitive information.
However, this does not justify a blanket exemption on all internal communications for fear that officials will react negatively to the release of information.
Instead, public authorities should assess the effect Page 5 of disclosing the information in question before applying either of the exemptions in section 30(b).
28. The Court of Session agreed with this approach in the case of Scottish Ministers v Scottish Information Commissioner [2006] CSIH 8 (see Appendix 1: Resources).

In their appeal, the Ministers argued that the Commissioner had erred in law by not recognising the possibility that, although the section 30 exemptions were not class based exemptions, they might apply to a class of documents, irrespective of the actual content of the documents.

The Court disagreed, saying that individual documents had to be scrutinised to establish whether they contain information which, when read in the context of related information, would, or would be likely to, have the specified harmful effect.

Only after such scrutiny is it possible to say whether the information concerned would, or would be likely to, have such an effect.
The public interest test

29. If the exemption applies, the authority must go on to consider the public interest in relation to the information – see section 2(1)(b) of FOISA.
This means assessing whether, in all the circumstances of the case, the public interest is better served by disclosing the information or maintaining the exemption.

The authority must identify and set out the competing arguments as to why the public interest would be served not only by disclosing the information, but also by withholding it.

Having identified the public interest arguments on each side, the authority must then carry out an exercise to determine where, on balance, the public interest lies.

There is an in-built presumption in FOISA that it is in the public interest to disclose information unless a public authority can show why there is a greater public interest in withholding the information.

30. FOISA does not define the term “public interest”, but it has been described as “something which is of serious concern and benefit to the public.”

It has also been said that the public interest does not mean what is of interest to the public, but what is in the interest of the public.
The Commissioner has published guidance on the public interest test – see Appendix 1: Resources.

31. There is clearly a strong public interest in protecting the effective conduct of public affairs.

The Commissioner has generally found that this public interest outweighs the public interest in disclosure of information where the effective conduct of public affairs is, or is likely to be, substantially harmed.

However, there have been a few cases where a strong public interest in disclosure has swung the balance in favour of disclosure.

For an example of a decision where this happened, see Appendix 1: Resources. Section 30(c) – the effective conduct of public affairs
32. Information is exempt under section 30(c) of FOISA if disclosure would otherwise prejudice substantially, or be likely to prejudice substantially, the effective conduct of public affairs.
The use of “otherwise” makes it clear that the exemption can’t be used to withhold information where disclosure would harm the maintenance of collective responsibility or inhibit the free and frank exchange of advice or views.
In those cases, section 30(a)/(b) should be applied instead. (Of course, in some cases the exemptions may also apply but for different reasons.)
33. This makes it extra important, when applying the exemption, for authorities to demonstrate how and why disclosure would harm the effective conduct of public affairs.

Authorities should be able to explain which aspects of their business would be affected, and in what way, and be able to show why this outcome would result from disclosure of the information requested.


Relevant correspondence attached below and in attached documents.

Thanks

Decision Notice 154/2020
Eastwood Park Masterplan and development proposals
Public authority: East Renfrewshire Council
Case Ref: 201902186 and 201902195

Summary
The Council was asked for information about the visioning and masterplanning of Eastwood Park.

Information was disclosed during the investigation.

The Commissioner found that the Council had breached the EIRs in responding to the requests, because the information should have been disclosed at the time of asking.

Relevant statutory provisions
The Environmental Information (Scotland) Regulations 2004 (the EIRs) regulations 2(1) (paragraphs (a) and (c) of definition of “environmental information “) (Interpretation); 5(1) and (2)(b) (Duty to make environmental information available on request); 10((1), (2) and (4)(d) (Exceptions
from duty to make environmental information available)

The full text of each of the statutory provisions cited above is reproduced in Appendix 1 to this decision.

The Appendix forms part of this decision.

Background
1. The Applicant has made a series of information requests, some of which concerned decisions on how to develop Eastwood Park.

This Decision Notice concerns two applications lodged to elicit information on the visioning and masterplanning for Eastwood Park.

Request 1

2. On 29 May 2019, the Applicant made a request for information to East Renfrewshire Council (the Council).

The information requested was that contained in correspondence and
documents/reports produced by Peter Brett Associates and the Council in regard to the visioning and masterplanning of Eastwood Park.

3. The Council responded on 26 June 2019 under the EIRs, withholding the information sought under regulation 10(4)(d) on the grounds that it remained either unfinished or incomplete.

4. On 9 July 2019, the Applicant wrote to the Council, requesting a review of its decision. Given the timing of decisions in relation to the development, he did not accept that the information would still be unfinished or incomplete.

He did not accept that there was any reason for withholding it.

5. The Council notified the Applicant of the outcome of its review on 7 August 2019, upholding its decision to apply regulation 10(4)(d) with further explanations as to why the information remained unfinished or incomplete.

Request 2

6. On 3 September 2019, the Applicant emailed a further request for information which included, but was not limited to, the visioning and masterplanning information already sought in request 1.

It included contact and payment information in relation to these matters, in
addition, all from 1 January 2019.

7. The Council responded on 3 October 2019, providing some information, but also noting the respects in which it considered this request to be a repeat of request1.

The Council stated Decision Notice 154/2020 that it was withholding information for the period subsequent to request 1, under sections
30(b)(ii) and (c) of the Freedom of Information (Scotland) Act 2002 (FOISA).

8. On 8 October 2019, in two separate emails, the Applicant required the Council to review its decision on request 2, setting out why he believed that the information requested was capable of disclosure.

He did not believe the Council had answered either request 1 or
request 2 in full.

9. The Council notified the Applicant of the outcome of its review on 6 November 2019, acknowledging that the request was for environmental information and substituting a new decision under the EIRs.

It affirmed its position that it was only responding to request 2 to
the extent that it had not been answered already in relation to request 1 and confirmed that it considered it had identified all relevant information and applied regulation 10(4)(d) of the EIRs to the information previously withheld.

Applications for requests 1 and 2

10. The Applicant appealed requests 1 and 2 on 28 November 2019 and 12 February 2020 respectively. Both applications have been conjoined for the purposes of investigation and will now be considered together in this Decision Notice.

11. In both applications, the Applicant wrote to the Commissioner, applying for a decision in terms of section 47(1) of FOISA.

By virtue of regulation 17 of the EIRs, Part 4 of FOISA applies to the enforcement of the EIRs as it applies to the enforcement of FOISA, subject to
specified modifications.

12. The Applicant challenged the Council’s reasons for withholding information under regulation 10(4)(d) and questioned whether all relevant information had been identified.

He did not accept that request 1 had been answered in full, as claimed by the Council in responding to request 2.

Investigation
13. Both applications were accepted as valid.

The Commissioner confirmed that the Applicant made requests for information to a Scottish public authority and asked the authority to review its responses to those requests before applying to him for a decision.

14. On 6 and 10 December 2019 respectively, the Council was notified in writing that the Applicant had made valid applications.

The Council was asked to send the Commissioner the information it withheld from the Applicant for both. The Council provided the information and the case was allocated to an investigating officer.

15. Section 49(3)(a) of FOISA requires the Commissioner to give public authorities an opportunity to provide comments on an application.

The Council was invited to comment on this application and to answer specific questions. These related to the application of regulation 10(4)(d) to the withheld information for both applications, and also to the steps taken to identify and locate any relevant information held. The Council was also asked to comment on the extent to which it considered request 2 to be a repeat of request 1.

16. Submissions were received from both parties during the investigation. The Council also provide the Applicant with the withheld information (in the form of four versions of the draft masterplan) during the investigation: the Applicant appeared content that this was the information he sought, but continued to seek a decision from the Commissioner on the Council’s earlier handling of the request.Decision Notice 154/2020 Commissioner’s analysis and findings

17. In coming to a decision on this matter, the Commissioner considered all of the withheld information and the relevant submissions, or parts of submissions, made to him by both the Applicant and the Council.

He is satisfied that no matter of relevance has been overlooked.

Handling in terms of the EIRs
18. At review stage, the Council dealt with both requests under the EIRs, as they related to environmental information as defined in regulation 2(1) of the EIRs. Specifically, it considered the information to relate to issues pertaining to the built and natural environment, namely the proposed use of the ground forming the current Eastwood Park.

19. Having considered the requests, the information identified by the Council as covered by them and the Council’s submissions, the Commissioner issatisfied that the Council was correct in dealing with the requests as requests for environmental information, as defined in regulation 2(1) of the EIRs, particularly paragraphs (a) and (c) of that definition (see Appendix 1).

20. The Applicant has not disputed the Council’s decision to deal with the request under the EIRs and, in what follows, the Commissioner will consider this case solely in terms of the EIRs.

Information held and regulation 10(4)(d)
21. The Council provided details of the process by which it established what information was held for both requests. These included the places searched, the search terms and timeframes used and why these would be expected to capture any relevant information.

It also provided submissions on the retention of drafts. Having considered these submissions, the Commissioner is satisfied that the searches were proportionate, reasonable and capable of identifying the information described in both requests. He notes that this information was provided to the Applicant during the investigation, and that the Applicant appears content that this was the information he sought.

22. The exception in regulation 10(4)(d) of the EIRs applies to “material which is still in the course of completion, … unfinished documents or … incomplete data”.

The Aarhus Convention: An Implementation Guide1 provides guidance (at page 85) as to the type of material this exception is intended to cover. It describes the expression “in the course of completion” as relating to the process of preparation of the information or document and not to any decision-making process for the purpose of which the information or document has been prepared. It also states that the words “in the course of completion” suggest that the term refers to individual documents that are actively being worked on by the public authority, and which will have more work done on them within some reasonable timeframe.

23. In this case, the Council’s arguments appear to relate to the fact that a senior management decision on the draft report and its submission to Council was still outstanding at the time of the review.

No indication has been given as to the effect of this situation on any individual version of the draft as withheld (and subsequently disclosed), each of which appears to be complete in itself.

In the circumstances, the Commissioner cannot accept, from the
1 www.unece.org/fileadmin/DAM/env/pp/Publi...tive_eng.pdfDecision Notice 154/2020
submissions received, that the Council was correct to apply the exception to the information under consideration here.

24. By failing to make available the withheld information at the time of review (for both requests 1 and 2, insofar as falling within the scope of each of them), the Commissioner concludes that the Council breached regulation 5(1) of the EIRs.

25. Given the information has now been provided to the Applicant, the Commissioner does not require further steps to be taken in this regard, on this occasion.

Whether request 1 went “unanswered”
26. While the Commissioner notes the Applicant’s unhappiness with the outcome of request 1, it is apparent that the Council did respond to that request (certainly at review stage) with what was, on the face of it, a full and final response to the request made.

The Applicant’s remedy was to apply to the Commissioner for a decision if he was unhappy with that response (as he did, in the case under consideration here).

Clearly, request 2 did repeat request 1 to some extent and that was unnecessary – in responding to a requirement for review, the Council
had fulfilled its role in relation to request 1 and need not have been called upon to, in effect, consider it again.

Decision
The Commissioner finds that, in respect of the matters specified in the applications for requests 1 and 2, East Renfrewshire Council (the Council) failed to comply with the Environmental Information (Scotland) Regulations 2004 (the EIRs) in responding to the information requests made by the
Applicant.

The Commissioner finds that the Council failed to comply with regulation 5(1) of the EIRs by not making the withheld information available in response to the Applicant’s request or his requirement for review.

Given that the withheld information was made available to the Applicant during this investigation, the Commissioner does not require the Council to take any action in respect of this failure, in response to the Applicant’s applications.

Appeal
Should either the Applicant or the Council wish to appeal against this decision, they have the right to appeal to the Court of Session on a point of law only.

Any such appeal must be made within 42 days after the date of intimation of this decision.
Margaret Keyse
Head of Enforcement
27 November 2020
Decision Notice 154/2020

Appendix 1: Relevant statutory provisions The Environmental Information (Scotland) Regulations 2004

2 Interpretation
(1) In these Regulations –
…
"environmental information" has the same meaning as in Article 2(1) of the Directive, namely any information in written, visual, aural, electronic or any other material form on -
(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements;
…
(c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) as well as measures or activities designed to protect those elements;
…
5 Duty to make available environmental information on request
(1) Subject to paragraph (2), a Scottish public authority that holds environmental information shall make it available when requested to do so by any applicant.
(2) The duty under paragraph (1)-
…
(b) is subject to regulations 6 to 12.
…
10 Exceptions from duty to make environmental information available–
(1) A Scottish public authority may refuse a request to make environmental information available if-
(a) there is an exception to disclosure under paragraphs (4) or (5); and
(b) in all the circumstances, the public interest in making the information available is outweighed by that in maintaining the exception.
(2) In considering the application of the exceptions referred to in paragraphs (4) and (5), a Scottish public authority shall-
(a) interpret those paragraphs in a restrictive way; and
(b) apply a presumption in favour of disclosure.
…Decision Notice 154/2020
Page 6
(4) A Scottish public authority may refuse to make environmental information available to the extent that
…
(d) the request relates to material which is still in the course of completion, to unfinished documents or to incomplete data; or
…

Scottish Information Commissioner
Kinburn Castle
Doubledykes Road
St Andrews, Fife
KY16 9DS
t 01334 464610
f 01334 464611
This e-mail address is being protected from spambots. You need JavaScript enabled to view it
www.itspublicknowledge.info

RM64 wrote:


Very well done, in my opinion ERC rely on peeps not having the time or inclination to take their cases to the Commissioner, well done.

The Decision has now been published on the Scottish Information Commissioner Website.

Decision Notice 154/2020: Eastwood Park Masterplan and development proposals

You can read it here -

www.itspublicknowledge.info/Applications...02186_201902195.aspx

Summary
The Council was asked for information about the visioning and masterplanning of Eastwood Park. Information was disclosed during the investigation. The Commissioner found that the Council had breached the EIRs in responding to the requests, because the information should have been disclosed at the time of asking.


I see that the original requests were made in 2019.

It is now 2021.

ERC are fully aware that it will take time and a resiliant resident to achieve a result.