06 March 2023
Your request
I would be most grateful if you could please provide the various consultee comments, in particular that of the Council’s Conservation Officer and Historic England, for the above application (22/02489/FUL - Redevelopment of 99-101 Waterloo Road) as they do not appear to be available on the Council’s website.
Our response
We consider that the EIR is the correct legislation for this response.
We note that Section 2(EIR) defines Environmental Information as follows:-
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.
b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a);
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 (a) and (b) as well as measures or activities designed to protect those elements.
(d) reports on the implementation of environmental legislation.
(e) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in (c); and
(f) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are or may be affected by the state of the elements of the environment referred to in (a) or, through those elements, by any of the matters referred to in (b) and (c).
With regards to statutory consultees please find attached redacted comments. Please note personal data has been redacted as we consider disclosure of this information would breach the Data Protection Act 2018 and therefore engage Section 40(2): Personal Data.
The definition of personal data is set out in provision 3 of the Data Protection Act 2018 as follows:-
(2)“Personal data” means any information relating to an identified or identifiable living individual
(3)“Identifiable living individual” means a living individual who can be identified, directly or indirectly, in particular by reference to—
(a)an identifier such as a name, an identification number, location data or an online identifier, or
(b)one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of the individual.
We note this document contains information which would allow an individual(s) to be identified which has therefore been redacted.
I have considered whether it would be fair to disclose the information including whether disclosure would cause any unnecessary or unjustified damage or distress to the individuals concerned; the individuals' reasonable expectations of what would happen to their information; and balancing the rights and freedoms of the data subject with legitimate interests.
In this case, I can confirm that it would not be fair to the individuals to disclose information about their contact details as it could cause distress to the individuals.
I do not consider that the individuals would expect the Council to disclose any information which may allow them to be identified. Although I acknowledge the legitimate interest in disclosing general information relating to this request, I do not consider the legitimate interest overrides the rights and freedoms of the individual on this occasion.
In accordance with Section 17 FOIA this letter represents a Refusal Notice for this request.
Please also note that with regards to this request, we confirm that we consider the information relating to internal comments should be withheld as it relates to the disclosure of unfinished documents and internal communications.
Regulation 12(4)(E): Unfinished Documents
12.(4) ) For the purposes of paragraph (1)(a), a public authority may refuse to disclose information 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
Regulation 12 (4)(e): Internal Communications
12.(4) For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that —
(e) The request involves the disclosure of internal communications.
As your request relates to internal comments in respect of this application (ref:22/02489/FUL) which currently provide incomplete assessment and discussion and are still currently in the process of reviewing, discussing and deliberating the relevant documentation. We consider it could be harmful to disclose information as to do so may undermine ongoing discussions and prevent the Council from being able to make a decision in a safe space.
Public Interest in Disclosure
We note Regulation 12(2) EIR has a presumption of disclosure.
We also consider that disclosure would increase the public’s understanding of this issue and we note the general benefit in transparency where possible.
Public Interest in maintaining the exception
There is a public interest in protecting the safe space for public authorities. It is important for Council officers to have a free space in order to discuss, deliberate and formulate its response to various parties in a full and frank way away from the public’s view; disclosure would inhibit our officers’ ability to debate issues if contributors felt that their input would be disclosed to a wider audience. The Council considers that this could have an adverse impact on our ability to consider all advice properly and fully include opinions without limitations.
It is in the public interest that the Council can make effective decisions and we consider that disclosure may undermine our ability to do so in this instance.
This response therefore acts as a refusal notice under regulation 14 of the Environmental Information Regulations.