Council of Minister Report re: Planning Application

Summary

A request was made for a Council of Ministers report from Independent Planning Advisor Mr. M. Ash regarding Planning Application 15/00124/B. The Cabinet Office released a redacted copy of the report, withholding specific sections under legal professional privilege.

Key Facts

• The request was received on 2 November 2018 and responded to on 12 November 2018.
• The authority handling the request was the Cabinet Office of the Isle of Man.
• A redacted copy of the report was provided to the requester.
• Information was withheld under Section 40 of the Freedom of Information Act 2015.
• The public interest test concluded that maintaining legal professional privilege outweighed the interest in disclosure.

Data Disclosed

• 644465
• 2018-11-02
• 2018-11-12
• 15/00124/B
• Section 40
• IM1 3PN
• 01624 686244

Exemptions Cited

• Section 40 of the Freedom of Information Act 2015 (Legal Professional Privilege)

Original Request

Please provide a copy of the report Council of Ministers received from Mr. M. Ash, Independent Planning Advisor to the Council, in connection with Planning Application 15/00124/B

Data Tables (1)

Full Response Text

Government Office Douglas Isle of Man IM1 3PN Telephone: (+44) 01624 686244 Website: www.gov.im/co

Our ref: 644465 12 November 2018

Dear ###

I write further to your request for information made under the Freedom of Information Act 2015 (“the Act”) which was received on 2 November 2018 and which stated:

"Please provide a copy of the report Council of Ministers received from Mr. M. Ash, Independent Planning Advisor to the Council, in connection with Planning Application 15/00124/B"

Following the consideration of your request please find enclosed a redacted copy of the information you have requested.

While our aim is to provide information whenever possible, in this instance some information is exempt from disclosure, under section 40 of the Act, as it is information in respect of which a claim to legal professional privilege could be maintained in legal proceedings. As section 40 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. The matters which were considered in applying the public interest test are as follows:

Factors in favour of disclosing the information include: • Disclosure would potentially maintain public confidence in the transparency and accountability underpinning the operation of the Island's planning process; • There is a potential public interest in understanding what information has been provided to the Council of Ministers on which they have made a decision; • It is it is noted that this may be of interest to the wider public.

Factors in favour of maintaining the exemption include: • The concept of legal professional privilege and the rationale behind the concept, i.e. ensuring frankness between lawyer and client which goes to form the basis of fair decision making with regard to planning decisions;

• Without such comprehensive advice, decision making may be compromised because it would not be fully informed; • It is important that the Council of Ministers is able to have frank discussions with the legal officers in the Attorney General's Chambers regarding statutory functions; • Where legal advice is sought, public officials, such as the Council of Ministers, must be able to make decisions in a fully formed legal context. Without the provision of comprehensive legal advice, the Council of Ministers may be compromised in decision making, as they would not be fully informed; • Legal advisers must be able to present the full picture, which will include arguments in support of their final conclusions and arguments that may be made against these. It is the nature of legal advice that it will set out the arguments for and against a particular view, weighing up relative merits and highlighting any perceived weakness in position. There is a risk that disclosure of advice, which may be misconstrued, may undermine this; • The Council of Ministers which made the planning decision based on evidence provided was that of a previous administration. In taking these factors into account the Cabinet Office has determined that the factors in favour of maintaining the exemption outweigh the factors in favour of disclosing the information.

Please quote the reference number 644465 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.

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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