Council Turn down Freedom of Information request.

Yes, the Council have turned down our first two Freedom of Information requests, saying telling us the answers to our questions - which they admit are available - may 'cause unnecessary distraction and concern'

In other words - there is something they've been discussing they don't want us to learn.

I have appealed the decision and will further appeal to the Information Commissioner if necessary. My appeal note is outlined below the letter from the council.

Adult and Community Services

Deepa Shah

Data Protection & Information Officer

Phone: 020 8891 7554

Email: deepa.shah@richmond.gov.uk

5 November 2012

Our Ref: e13572

Dear Mr Morris,

Re: Request for information under the Environmental Information Regulations 2004

Your requests for information which were received on 5 October 2012 has been considered. Please find our response below.

Request 1

I would like to request copies of all council minutes discussing potential sale of land at

1). The Russell School, Petersham

2). Strathmore School, Petersham

I would also like to request copies of any correspondence between Richmond Council and Staff/Governors at the two schools concerning sale of land.

Request 2

A copy of any studies, reports or feasibility analysis commissioned and/or held by the council involving the sale of land at 

1). Strathmore School, Petersham

2). The Russell School, Petersham

Our response:

In accordance with recent Information Commissioner’s Office decisions, I am treating this as an environmental information request under the Environmental Information Regulations 2004 (EIRs) and this letter acts as a Public Interest Refusal Notice.

With regard to request 1, information held by the Council comprises one item of correspondence. 

With regard to request 2, information held by the Council comprises a concept study for the Russell and Strathmore Buildings.

We consider the above items to be covered by regulation 12(4)(d) within the EIR.  This exception relates to material in the course of completion, to unfinished documents or to incomplete data. This exemption is subject to the public interest test and we have considered arguments in favour of, and against disclosure below.

While the relevant documents are finished documents, they form part of material which is still in the course of completion.  This is an area where the Council is currently formulating and exploring options and the material is generated as part of an on-going process to reach a particular decision. There are a number of options being considered. These include the possibility of selling Strathmore School and the potential sale of some land within Russell School but these are dependent on the overall options appraisal. All the agreed and realistic options will be presented in full if a decision is made to go to statutory consultation. The statutory consultation will offer a range of options in terms of the provision of education currently at Strathmore School. The decision as to whether or not to go to statutory consultation is imminent once the final options and alternatives have been agreed and clarified by relevant parties.

We take into account the general public interest in the release of this information in order to give the public a fully informed picture of this decision making process, promoting transparency and accountability. 

However, there is also a public interest in protecting the safe ‘thinking’ space within the Council. This is important as it allows officers to get on with the job in hand without having to defend or comment externally on what are only preliminary proposals and may not reflect fully formulated or agreed positions of the Council.  It is important to protect the integrity of the decision making process.  Disclosure of this material at this stage would make it difficult to bring this decision-making process to a conclusion.

The upgrading, re building or re provision of Strathmore School have a number of similar but also variable consequences for Russell School and other Schools and each of the options has different funding implications and the option of aligning to other potential building projects. Careful evaluation of these is necessary before it is agreed that they are, in fact, viable and feasible options, practically, financially and most importantly in delivering high quality educational provision for children with severe learning difficulties, as well as the relevant school populations.

Making all the options available before they have been carefully evaluated would cause unnecessary distraction and concern. This is particularly the case when all viable options will be presented in detail, openly and transparently, within the statutory consultation, for comment and public scrutiny with a clear rationale.

Further public and statutory consultation will also be offered if after the statutory consultation, we proceed to a planning proposal and application, which, in turn, will be agreed by Cabinet.

Taking the above factors into account, I have therefore concluded that the public interest in maintaining the exemption outweighs the public interest in favour of disclosing the information.

In accordance with the Environmental Information Regulations 2004, this letter acts as a Refusal Notice.

You have the right of appeal against the decision.  If you wish to appeal please set out in writing your grounds of appeal and send to:  

Corporate Complaints and Access to Information Manager

Community Engagement & Accountability Team

Adult and Community Services

3rd Floor Civic Centre

44 York Street

Twickenham

TW1 3BZ

E-mail: foi@richmond.gov.uk

If you are dissatisfied with the outcome of the internal appeal you may appeal further to the information Commissioner’s Office at:

Wycliffe House 

Water Lane 

Wilmslow 

Cheshire 

SK9 5AF

fax: 01625 524 510

DX  20819

www.ico.gov.uk

My Reply

Dear Mr Shah

Thank you for your letter.

However I do not accept your refusal of my Freedom of Information request. Within your reply, you reveal that information is available, that it is complete, but that because the process is still underway you feel you can turn down the request.

In fact your letter tells us that parents have been asked to respond to consultations with access to incomplete and inaccurate information. For example in your letter you state that one of the options being looked at involves sale of land at the Russell School. In fact, the consultation document parents were asked to respond to makes no mention of sale of land at The Russell, only at Strathmore. There is a certain irony is there not, that your refusal letter of an FOI request reveals more information than the Council was willing to give parents in the first place. There is certainly no public interest defence here. Quite the opposite.

The 'thinking space' argument you make would only apply before the public are consulted. However, your letter revels that the Council now attempted to gain public support for the scheme - consultation documents paint only a positive picture of the scheme - without revealing the full plans being discussed. Hence my FOI request in the first place. The thinking space fell the moment the council launched a consultation on the proposals. If they failed to reveal the full extent of their planning, then again the public interest defence falls in favour of the FOI request, not against it.

I would also question whether the drawing you refer to in Request 2 is the only material available in relation to that request? Have there really been no other studies done  - traffic impact, environment etc - in relation to this project?

Finally - and most importantly - I refer you to the clause you are using to defend your decision in the Environmental Information Regulations 2004 - that exemptions can be made if 'the request relates to material which is still in the course of completion, to unfinished documents or to incomplete data'. The material I have requested is, as you acknowledge, complete and therefore the exemption does not apply.

Please take this note as a formal appeal against your decision to turn down my FOI request. I would appreciate it if you could confirm the timing of any decision on that appeal.Should my appeal be turned down, I will of course be referring the matter to the Information Commissioner.

With best wishes

Richard Morris