REVIEW - Broomfield Cottage

Summary

An applicant requested planning and building work records for Broomfield Cottage stream banks, leading to an internal review that overturned the original refusal and resulted in the release of some information with personal data redacted.

Key Facts

• The Department of Infrastructure conducted an internal review of FOI request IM109051I.
• The reviewer concluded the original response should be overturned and released new information.
• The applicant was warned that much of the requested data would be redacted due to personal information.
• The Department initially suspected the request was motivated by private interest rather than public interest.
• Personal data, including signatures and junior officer details, was redacted from the released documents.

Data Disclosed

• 2017-11-06
• 2017-12-11
• IM109474I
• IM109051I
• 73
• 1
• 2 years
• section 9(1)
• section 20(1)
• section 25(1)(a)
• section 25(2)(a)
• Data Protection Act 2002
• Freedom of Information Act 2015

Exemptions Cited

• Section 20(1) - Information reasonably accessible to the applicant
• Section 25(1)(a) - Personal data of the applicant
• Section 25(2)(a) - Personal data of third parties
• Commercial interests regarding copyrighted plans and drawings

Data Tables (4)

Full Response Text

Department of Infrastructure Sea Terminal Building, Douglas, Isle of Man, IM1 2RF

Freedom of Information Act 2015 (“The Act”) Request for an Internal Review IM109474I regarding FOI Reference IM109051I

I write in reference to your request dated 6th November 2017 for an internal review to be conducted of our response provided to your Freedom of Information request.

An internal review of the response has been completed by an independent officer who was not involved with the original request. They have concluded that the original response should be overturned and, as an explanation, their findings are summarised below. A new version of the original response (IM10905I) is therefore attached.

Please provide any information submitted to or recorded by Public Estates and Housing Division over the last two year relating to the following name or address in relation to planning, on going building work and planned work to one or both stream banks that run along the side of the property.

Extracts from the Reviewer’s report:

 The applicant was contacted by the FOI co-ordinator to discuss the original request. During this conversation it is noted on the file that the applicant was made aware that the information being requested would likely result in much of this being redacted due to the personal information likely to be included. It is also noted in the file that the applicant was aware that this would be the case but did not wish to either withdraw or amend the nature of the request.

 The FOI co-ordinator had concerns regarding the reasoning behind the request in that it was felt that the applicant was wishing to “build a case”. These concerns were not shared with the applicant but seemingly it did impact on the decision made that this request was motivated by a private interest and not a broader public interest.

 At the time of the original request the information was not sought. The Department concluded that this request was based on an intention to pursue a private interest rather than the

Department of Infrastructure Sea Terminal Building, Douglas, Isle of Man, IM1 2RF

FOI Reference No: IM109051I Request under The Freedom of Information Act 2015 (“The Act”)

Thank you for your request dated 2nd November 2017

Your request

Please provide any information submitted to or recorded by Public Estates and Housing Division over the last two year relating to the following name or address in relation to planning, on going building work and planned work to one or both stream banks that run along the side of the property.

Response to your request

While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested; the reasons and statutory exemption sections are shown below.

After applying exemptions and redacting information where necessary, all remaining information held by the Public Estates and Housing Division that originated during the last two years and which relates to your request has been compiled together in Appendix 1.

Much of the information is already held by you because you either initiated or were included in the correspondence. Where information is reasonably accessible to you by other means than by a request for information, under section 9(1) of the Freedom of Information Act, that information is absolutely exempt under section 20(1).

Under Section 20(1) Information is absolutely exempt information if it is reasonably accessible to the applicant, whether free of charge or on payment, other than by requesting it under section 9(1) (requests for information).

The copies of correspondence or other documentation provided in Appendix 1 have had personal data redacted as this is absolutely exempt under section 25(1)(a) and (2)(a) of the FOIA.

Applying the principles of protection of personal data (as defined by the Data Protection Act 2002) we redact all signatures, personal data identifying junior officers of Government, and personal data that could be used to identify any third party, which would also extend to include any personal information that would identify you. If you believe that personal data of your own has been redacted, that would be of value to you, you are entitled to submit a Subject Access Request. Alternatively, if this matter forms any part of legal proceedings your advocates may be able to access further information through the Disclosure process, guidance on which can be found at http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part31

Under Section 25(1)(a) Information is absolutely exempt information if it constitutes personal data of which the applicant is the data subject and 25(2)(b)(i) Information is absolutely exempt information if it constitutes personal data of which the applicant is not the data subject; and in a case where the information falls within any of paragraphs (a) to (d) of the definition of “data” in section 1(1) of the Data Protection Act 2002, the disclosure of the information to a member of the public (otherwise than under this Act) would contravene any of the data protection principles;

The Department believes that releasing into the public domain the copyrighted plans, drawings and/or surveys held by the Department but produced by would prejudice the commercial interests of both the Department of Infrastructure and the aforementioned companies. It may also prejudice the commercial interests of the consulting engineers and land surveyors industries locally.

The Department did seek the views of the contractors to the release of this information. The contractors have asked us to withhold this information on the basis of commercial sensitivity and confidentiality based on the reasons given above and laid out below. If the consulting engineers and land surveyors perceived the Department as having breached a trust by revealing this information, this would cause real harm to the Department as it would be less likely to be able to negotiate future services at a cost effective rate, thus wasting public funds. Accordingly, we have applied an exemption under section 30(2)(b) to this information.

Under Section 30(2)(b) of the Freedom of Information Act 2015, information is qualified exempt information if its disclosure would, or would be likely to, prejudice the financial interests of a person (including the public authority holding it). (Usually relating to the commercial trading activity they undertake e.g. ongoing sale or purchase of goods and services for the purposes of revenue generation, within a competitive environment).

Section 30(2)(b) of the Freedom of Information Act is a qualified exemption and therefore subject to a public interest test and a prejudice test. The outcome of the prejudice test was as follows:

 By unrestricted access to copy and use the plans, drawings etc, there is risk of loss of business to both the above specified contractors and to the consulting engineers and land surveyors industries in general.  Drawings, surveys and plans are used to give advice on works to be carried out; the contractors above would be vulnerable to litigation as their public indemnity insurance would be

invalid should these documents be used by people other than them and without the accompanying knowledge and expertise.
 The commercial interests of the Department would be impacted to an unacceptable level as the documentation is copyrighted and the Department would be perceived as untrustworthy. Ultimately, when attempting to obtain the services of these and other industries in future, this would result in the Department being less likely to be able to obtain services at a cost effective rate, thus wasting public funds. This harm would recur every time the Department (or wider government) has the need to use the services of consulting engineers or land surveyors.  The Public Estates and Housing Division have been using the services of each of these specific contractors (which provided services in this instance) several times per year. The only limit to prejudice occurring is the extent to which the specific contractors might feel that the publication of copyrighted documents against their consent is a breach of their trust and of their interests.

In assessing where the public interest lies, the following factors have been considered.

In favour of disclosure:  Likely to improve public confidence in the degree to which the Department of Infrastructure has engaged the services of professional consulting engineers and land surveyors before commencing works to its property and assets.  Likely to improve public awareness of how public money is being spent.

In favour of maintaining the exemption and withholding the information:  The need to protect the commercial interests of the consulting engineers and land surveyors industries locally and n particular.

The need to protect the commercial interests of the public sector in general and the Department of Infrastructure in particular. Release of commercially sensitive material would compromise any future negotiations with these contractors and would also restrict the Department’s ability to negotiate beneficial pricing from any future suppliers if they feel unable to trust the Department’s commitment to protecting their sensitive commercial information. It is important to recognise the role that protection of public sector commercial interests has in the wider context of the public interest.

In assessing the weights attributed to each of the factors in favour of disclosing the information and those for maintaining the exemption, the balance has fallen in favour of maintaining the exemption.
At this time the harm outweighs the public interest in disclosing the information.

Your right to request a review

If you are unhappy with this response to your Freedom of Information request, you may ask us to carry out an internal review of the response, by completing a complaint form and submitting it electronically to foi.doi@gov.im or by delivery/post to The FOI Co-ordinator, Department of Infrastructure, Sea Terminal Buildings, Douglas, IM1 2RF. An electronic version and paper version of our complaint form can be found by going to our website at www.gov.im/foireview

Your review request should explain why you are dissatisfied with this response, and should be made as soon as practicable. We will respond as soon as the review has been concluded.

If you are not satisfied with the result of the review, you then have the right to appeal to the Information Commissioner for a decision on;

1 Whether we have responded to your request for information in accordance with Part 2 of the Freedom of Information Act; or

2 Whether we are justified in refusing to give you the information requested.

In response to an application for review, the Information Commissioner may, at any time, attempt to resolve a matter by negotiation, conciliation, mediation or another form of alternative dispute resolution and will have regard to any outcome of this in making any subsequent decision. More detailed information on your rights to review is on the Information Commissioner’s website at: www.inforights.im/

Should you have any queries concerning this letter, please do not hesitate to contact me.

Further information about Freedom of Information requests can be found at https://www.gov.im/about-the-government/freedom-of-information/

Yours sincerely

Freedom of Information Response Team

APPENDIX 1 From: Reeve, Deborah To: Lacey, John Subject: Date: 05 February 2016 14:31:15 Hi John  Please look into this- is it something the Division is involved in? If so your views are welcome  Debbie Sent from my mobile device -------- Original message -------- From: "Gawne, Phil (MHK)" Phil.Gawne@gov.im Date: 05/02/2016 13:15 (GMT+00:00) To: "Reeve, Deborah" Deborah.Reeve@gov.im Subject: Fwd: Do we have any concerns about this.  See below.  I personally am trying to remain neutral.  Phil  Sent from my iPhone Begin forwarded message: From: Date: 28 January 2016 at 7:58:01 PM GMT To: phil.gawne@gov.im Subject: Dear Mr Gawne I write in connection with planning application PA 15/01135/B Broomfield Cottage Qualtrough’s Lane Ballafesson. fairy hill close – across the ‘water drainage culvert’ from the application site.     I am not clear on the following; Does your department have charge for the water drainage culverts? Does your department have charge of the Local Gov Board Properties within the area?   Although raises no direct objection to extension, I would raise the following point for clarification; ·         The proposed extension on the north elevation is to extend right to the edge of the culvert!  ·         The existing property is at least a metre from the culvert edge. o     raises no objections but we wonder if the Government as owners of the land and property has, and if not, would give some thought to the points raised above.     If I have directed this to you and your department does not have concern for these matters I would ask that as an MHK for the area you would still give it your considerations.   I can be contacted via return email and await your responses.   Kind regards From: Reeve, Deborah To: Lacey, John Subject: Date: 12 February 2016 08:11:51 Hi John Please deal with this enquiry I forwarded the original email from the Minister earlier this week or late last thanks   Deborah J. Reeve, BA (Hons), FCIH Director, Dept of Infrastructure, Isle of Man Government Housing Division Markwell House Market Street Douglas,Isle of Man IM1 2RZ tel 01624 fax 01624 E-mail: http://www.twitter.com/iominfra http://www.facebook.com/iominfrastructure

From: Sent: 11 February 2016 20:30 To: Reeve, Deborah Cc: King, Philip Subject:   Dear Miss Reeve              (fyi only – Philip King)   I do not appear to have received a response from you per Phil Gawne’s referral below.   I would add another point;          · If the building is to border on to the “drainage culvert” running between the application site – is the culvert banking; o Strong enough to take disturbance in such close proximity o Will any use of scaffolding cause any damage to the bank if it has to span over on to the public sector side.   Many thanks Regards   From: Gawne, Phil (MHK) [mailto:Phil.Gawne@gov.im] Sent: 05 February 2016 13:14 To: Subject:   Many thanks for your message and sorry for the delay in getting back to you.    My Department doesn't have responsibility for the drainage issues you raise. The Manx Utilities Authority holds responsibility for drainage.      If I have directed this to you and your department does not have concern for these matters I would ask that as a

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