asbestos retained in Old Nurses Home project

Summary

A request was made for reports and risk assessments regarding asbestos removal and retention in the Old Nurses Home project, to which the Department of Environment, Food and Agriculture disclosed the timeline of awareness but withheld specific risk assessment documents citing commercial sensitivity.

Key Facts

• The Department was first made aware of asbestos in the building via a Ferncroft survey conducted between October and December 2021.
• The Department was first made aware of the specific removal of asbestos by the MDC on 29 April 2022.
• The asbestos report was submitted as part of a demolition application to Planning and Building Control.
• The requestor complained that retaining asbestos in a future residential building was reckless and should not be withheld under commercial sensitivity.
• The final outcome of the complaint was a Decision Notice stating the complaint was not upheld.

Data Disclosed

• 29 April 2022
• October and December 2021
• 7 May 2024
• 4 June 2024
• 11 June 2024
• 2026-02-16
• 100m
• S25(b)(i)&(ii)

Exemptions Cited

• S25(b)(i)&(ii) - Commercial sensitivity

Original Request

Please provide all reports, email correspondence, memos etc additional to: a) when was the department first made aware of the removal of asbestos in the Old Nurses Home Project being carried out by the MDC. b) please provide the risk assessment for the removal of the asbestos at all floor levels c) please provide the risk assessment for the retention of asbestos at several floor levels d) please provide all reports following site visits. e) please provide any certification of the removal of asbestos f) please provide copies of certification of the containment of asbestos in the building. NOTE: the MDC Lloyds 100m "GREEN LOAN" must comply with specific standards.

Data Tables (1)

Full Response Text

From: whkennaugh@manx.net To: defa@foi.gov.im Sent: Tue Jun 11 2024 10:16:33 BST Subject: RE: Information request (ref: 3841713)

Dear Hannah

Please instigate a review of my FOI response.

Clearly, I cannot see any risk assessment or methodology for the retention of asbestos across several floors.

Where a building is going to be for residential occupation it seems reckless that the retention of asbestos could simply be demoted to such a low hurdle as commercial sensitivity when the completed project, be it indirectly, will be owned by the taxpayer?

Kind regards Henry Kennaugh

From: Department of Environment Food and Agriculture defa@foi.gov.im
Sent: 04 June 2024 11:12 To: whkennaugh@manx.net Subject: Information request (ref: 3841713)

Information request Our reference: 3841713

Dear Mr Kennaugh

Thank you for your request for information received on 7 May 2024.

Please find attached our response to your request.

Kind Regards

Hannah Moore Freedom of Information Coordinator Corporate Services 685854 hannah.moore@gov.im

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Freedom of Information Co-ordinator Corporate Services Directorate Thie Slieau Whallian, Foxdale Road, St John’s, Isle of Man, IM4 3AS Tel no (01624) 685854 Fax no (01624 685851 Email: defa@gov.im www.gov.im

Our ref: 3841713 4 June 2024

Dear ###

We write further to your request, received 7 May 2024, which states:

“Please provide all reports, email correspondence, memos etc. additional to:

a) When was the department first made aware of the removal of asbestos in the Old Nurses Home Project being carried out by the MDC?

b) Please provide the risk assessment for the removal of the asbestos at all floor levels.

c) Please provide the risk assessment for the retention of asbestos at several floor levels.

d) Please provide all reports following site visits.

e) Please provide any certification of the removal of asbestos.

f) Please provide copies of certification of the containment of asbestos in the building.

NOTE: the MDC Lloyds 100m "GREEN LOAN" must comply with specific standards.

Our response to your request is as follows:

a) When was the department first made aware of the removal of asbestos in the Old Nurses Home Project being carried out by the MDC?

The Department were first made aware of the removal of asbestos in the Old Nurses Home Project being carried out by the MDC on 29 April 2022. The Department were first made aware of asbestos in the building on receipt of a survey conducted by Ferncroft which was undertaken between October and December 2021.

To offer advice and assistance, the asbestos report was part of a demolition application submitted to Planning and Building Control. A ‘guide to demolitions’ can be found here: https://www.gov.im/categories/planning-and-building-control/building- control/demolitions/

b) Please provide the risk assessment for the removal of the asbestos at all floor levels.

Please find attached the information being released to you.

S25(b)(i)&(ii)

While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because it is absolutely exempt under section 25 of the Act (absolutely exempt personal information). The reasons why that exemption applies are that: • The Department of Environment Food and Agriculture is satisfied that the information amounts to personal data of which you are not the data subject; and • The Department of Environment Food and Agriculture is satisfied that disclosure of the information would contravene one of the data protection principles as set out at Article 5 of the General Data Protection Regulation as it applies in the Isle of Man pursuant to the Data Protection (Application of GDPR) Order 2018, namely that the Department of Environment Food and Agriculture can only disclose the information where it would be fair, lawful and meet one of the conditions for lawful processing in Article 6 and in this case, none of those conditions have been met.

S30(1)(c)&(2)(b)

While our aim is to provide information whenever possible, in this instance the information is exempt from disclosure under section 30 of the Act as disclosure would be likely to prejudice the ability of the Government to manage the national economy and the commercial interests of person.

As section 30 is a qualified exemption, it is subject to a public interest test. The public interest must be something that is of serious concern and benefit to the public at large.

Factors in favour of disclosure • Open and transparent use of public funds; • Release of some information could promote public understanding and informed debate;
• Protection of the public from unsafe products/practices

Factors in favour of withholding • It is not in the public interest to disclose information that would likely result in increasing Government expenditure;
• There is limited general public interest in the information; • Disclosure of the information would likely affect a person's ability to participate competitively in a commercial activity; • Disclosure of the information would likely cause a weakening of a person's position in a competitive environment by revealing market sensitive information;

• Disclosure of the information would likely cause a weakening of a person's position in a competitive environment by revealing information of potential usefulness to competitors; • The need to protect the commercial interests of the private sector, which plays an important role in the general health of the economy.

In taking these factors into account the Department of Environment, Food and Agriculture determined that the factors in favour of maintaining the exemption outweigh the factors in favour of disclosing the information.

c) Please provide the risk assessment for the retention of asbestos at several floor levels.

While our aim is to provide information whenever possible, in this instance the public authority does not hold or cannot, after taking reasonable steps to do so, find some of the information that you have requested. This is because the Department does not hold the information you have requested.

To offer advice and assistance, the Planning and Building Control Department received a Notification of Intention to Demolish a Building in September 2022. A risk assessment for the retention of asbestos is not required for a demolition application.

d) Please provide all reports following site visits.

While our aim is to provide information whenever possible, in this instance the information is exempt from disclosure under section 30 of the Act as disclosure would be likely to prejudice the ability of the Government to manage the national economy and the commercial interests of person.

S30(1)(c)&(2)(b)

As section 30 is a qualified exemption, it is subject to a public interest test. The public interest must be something that is of serious concern and benefit to the public at large.

Factors in favour of disclosure • Open and transparent use of public funds; • Release of some information could promote public understanding and informed debate;
• Protection of the public from unsafe products/practices

Factors in favour of withholding • It is not in the public interest to disclose information that would likely result in increasing Government expenditure;
• There is limited general public interest in the information; • Disclosure of the information would likely affect a person's ability to participate competitively in a commercial activity; • Disclosure of the information would likely cause a weakening of a person's position in a competitive environment by revealing market sensitive information;

• Disclosure of the information would likely cause a weakening of a person's position in a competitive environment by revealing information of potential usefulness to competitors; • The need to protect the commercial interests of the private sector, which plays an important role in the general health of the economy.

In taking these factors into account the Department of Environment, Food and Agriculture determined that the factors in favour of maintaining the exemption outweigh the factors in favour of disclosing the information.

e) Please provide any certification of the removal of asbestos; and f) Please provide copies of certification of the containment of asbestos in the building.

While our aim is to provide information whenever possible, in this instance the public authority does not hold or cannot, after taking reasonable steps to do so, find some of the information that you have requested. This is because the Department does not hold the information you have requested.

To offer advice and assistance, the Environmental Protection Unit have been informed of the removal of asbestos by Ferncroft, who are licensed to undertake the work.

Please quote the reference number 3841713 in any future communications.

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 or by delivery/post.

An electronic version of our complaint form can be found by going to our website at https://services.gov.im/freedom-of-information/Review . If you would like a paper version of our complaint form to be sent to you by post, please contact me and I will be happy to arrange for this. 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 2015; 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 right to a review can be found 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 www.gov.im/foi. I will now close your request as of this date.

Yours sincerely