Mr Williams
/ Date: 11 April 2012
Our reference: KJE/304/2/70/12
Your reference: FOI

Dear Mr Williams

Complaint – internal review in respect of Brentwood Borough Council’s handling of your Freedom of Information Act 2000 (FOIA) request received 6 February 2012 and given our reference FOI 3125

I have been investigating your request for an internal review of the handling of your request. Thank you for the detail you have provided in your request for review, which has enabled me to investigate this matter. I trust that this response will answer your complaint and that it will deal with this matter in full. Should you feel that it has not answered your enquiries however, you are of course able to make a full complaint to the Information Commissioner, thedetails for which I have placed at the end of this response.

By way of background information and for the purposes of answering your complaint, I shall refer to a number of known facts in the first instance.

Your request for information was one made under the Freedom of Information Act 2000. It would appear that it was sent on 3 February 2012 (out of normal business hours) and effectively the first day acknowledged as receipt of your request is Monday 6 February 2012. The request was received from an email address quoted as and listed six requests for information, request three having been listed as request “2” in error. Internally, the administrator for Freedom of Information requests did not send this to a department to answer your request until Monday 20 February 2012, when she sent the content to Steve Boyle (Head of Legal and Governance & Monitoring Officer) and Laurie Gibbins (Legal Officer & Land Charges Manager). I believe that your request should have been responded to you on or before 5 March 2012. The first response I can see from either Mr Boyle or Mrs Gibbins is from Mrs Gibbins to an email address of on Friday 2 March 2012. This email acknowledged yours of 6 February 2012; said that she was unable to respond fully to your request; requested identification as to which parcel of land you were referring to in your request and asked for a scaled plan. This is a further email from Laurie Gibbins to the confirming that her email of that date had been returned and asking for your “correct” email address. Ben Harris of “WhatDoTheyKnow.com” responded that day to confirm that your correct address was that referred to above and as per your original email address. Mr Harris’ email was received at 17:33 hrs. On Monday 5 March 2012, Laurie Gibbins emailed you, forwarding on her previous email and stating that the earlier email had been returned as undeliverable.

You emailed on Monday 12 March 2012 requesting an internal review of the handling of your request as you stated that the time for responding to your request was long overdue. This was received at 13:43hrs and passed onto Laurie Gibbins and carbon copied to Steve Boyle on the same day at 14:14 hrs. The next email is from you of the same day objecting to a request for a plan and referring to Bell Mead as discussed in “press statements and meetings...without any confusion. If you believe that the council owns multiple sites with that name, please provide the details for all of them.”

Your email of 12 March 2012 was referred to Laurie Gibbins the next day at 08:54 hrs. Ms Gibbins contacted our Assets & Technical Manager, Adrian Tidbury, who agreed the content of her draft, but for confirmation that we no longer held information relating to some of your request and that there “might well be agreements with the Doctors surgery in terms of access, as well as one or two other private accesses”. No information could be located validating this assertion. Mrs Gibbins amended her draft and sent this to Mr Boylefor final approval. The final document was emailed to you on the same day.

For ease of reference, I shall quote your requests for information below and shall place the Council’s answer to it in red next to the relevant request;

  1. How Brentwood Borough Council came into ownership of the land on which Bell Mead sits. By way of a transfer deed dated 17 January 1989 between Bass Holdings Limited (1) and Brentwood District Council (2).
  2. What proportion of the site is in use as Bell Mead. The Land proposed for disposal is unoccupied and fenced off. This land is at the end of the Bell Mead roadway. The road, Bell Mead, is separate to the land.
  3. How much Brentwood Borough Council paid for the site. £175,000.00.
  4. If the site was obtained in 1974 from the predecessor local authority, Chelmsford District Council, how much they originally paid for the site. The site was not obtained from Chelmsford Rural DC.
  5. Whether Brentwood Borough Council paid for the construction of the roadway and layby, and if so for what cost. It is believed that the Council constructed the carriageway and parking areas in the early 1990s and no longer has records of the contracts that were accepted as part of the tender exercise leading to the construction of the carriageway and parking areas.
  6. Any covenants or agreements with third parties relating to the site, or the provision of the roadway and layby. In relation to the information requested under the FOIA, this Authority has the right to refuse an applicant information, if an exemption applies. The Authority considers that an absolute exemption applies to your request under Section 21 of the FOIA, which states that “information requested may be exempt if it [sic] reasonably accessible to the applicant by other means”. The Council’s registered title number is EX399006. As this information you requested is available from the HM Land Registry, I am of the opinion that this absolute exemption applies to your request for this information. You can contact the Land Registry, Peterborough Office at Touthill Close, City Road, PeterboroughPE1 1XN; Tel: 08448921111;
  1. You are unhappy with the Council’s response in that you were initially asked to supply a plan identifying the land in which you were interested and you refer to the difficulties that one might have in providing the council with a plan.
  1. You state that Bell Mead is a roadway/car park which is widely discussed internally and externally by the Council.
  1. You state that the wording in your request was quite clear in that you requested information relating to the “land on which Bell Mead sits” and that this should be obvious to the Council which parcels are relevant.
  1. You request an explanation as to why the Council was confused as to which parcel of land you were referring to.
  1. You are concerned that the Council has restricted information to the missing contractual information when answering point 5 and you request information relating to financial records or any other records showing the overall cost of the project.
  1. You asked for details of covenants relating to the site and you claim that reference to title EX399006 is inaccurate and that title EX767457 should be included and is in the Council’s ownership.
  1. You also claim that one third of the 24 car parking spaces at located in title EX506273 and are concerned with the Council’s ability to issue penalty charge notices to cars in respect of these spaces without an agreement with the land’s owner.
  1. You claim that there is a pattern of half-answers, inaccurate information and extensive delays.

I trust that this is an accurate reflection of your request for review. I shall deal with the points raised above and will try to do so in the order that you have raised them, again for ease of reference.

A major concern in respect of your request for information has been identifying which land you are interested in and which parcel of land is therefore relevant to your request. Requests are often ambiguous, with many potential interpretations. There is more than one parcel of land in the Council’s ownership in respect of Bell Mead and therefore Mrs Gibbins asked you to supply a plan of the land that you were interested in. This Authority does not have to deal with a request until we are in receipt of further clarification, and in this case the area in question is fundamental to answering a large part of your request. A plan indentifying the land you are interested in would have been the most accurate way of indentifying this for your request. A plan can be obtained from the local library or even from the Land Registry and it would appear that you have access to other titles relating to the area, which you may have chosen to use to indentify the land in question.

Section 16(1) of the FOIA relates to the duty of an Authority to provide advice and assistance. It states:

It shall be the duty of a public authority to provide advice and assistance, so far as it would be reasonable to expect the authority to do so, to persons who propose to make, or have made, requests for information to it.

As a member of the public, I find that the Council could have directed you to a number of places where you could have obtained a plan and more detail as to what size plan would have been acceptable to the Council and how it should identify the land in question. It could have supplied you with a draft plan and asked you to complete the same for the same purpose and I am sorry that this fell short of our responsibilities and duties under the FOIA.

In your email of 12 March 2012, you refer to the site in question as having been in press statements and meetings. The only parcel of land at Bell Mead, which has been subject to this scrutiny, is that relating to EX399006 and so Mrs Gibbins limited her response to you to this parcel of land. However, further in the same email from you, you confirmed that if the Council owns multiple sites then you wanted the “details for all of them”. There are two other parcels of land in the Council’s ownership in or around that site and they are titles EX508830 and EX370687. As your request was interpreted as limited to the land that had been discussed in the press and meetings, there was some confusion as to which parcels you were interested in. Again, your further confirmation that you were interested in all parcels relating to Bell Mead circumvented this and it should have been dealt with as such notwithstanding the exemption that the Council relied upon to withhold the information in any event as “available elsewhere”.

Section 1(1) provides that –

“Any person making a request for information to a public authority is entitled –

(a) to be informed in writing by the public authority whether it holds information

of the description specified in the request, and

(b) if that is the case, to have that information communicated to him.”

Section 2(2) provides that –

“In respect of any information which is exempt information by virtue of any provision

of Part II, section 1(1)(b) does not apply to it if or to the extent that –

(a) the information is exempt information by virtue of a conferring

absolute exemption…

The Council, in its reply to you, replied on the exemption at Section 21 FOIA.

Section 21(1) states that

“Information which is reasonably accessible to the applicant otherwise than under section 1 is exempt information.”

This means that where a complainant is reasonably able to obtain the information from another source then the information is exempt from disclosure under the FOI Act.

Section 21(2)(a) states:

“information may be reasonably accessible to the applicant even though it is accessible only on payment,”

This means that even where the complainant would be required to pay a fee to obtain the information from the other source the exemption will still be applicable.

I find that the Council was incorrect to have relied on this exemption only in so far as the information was readily at hand and could have been easily provided to you and when taking into account our duties and responsibilities in accordance with Section 16(1) above. However, (and technically), the exemption was one that the Council could have and did rely upon in this instance.

Notwithstanding this, I have scanned all three Land Certificates relating to the Council’s ownership of titles EX399006; EX370687 and EX508830 and have attached these to my reply. I have also included titles EX506273 and EX767457.

In respect of your request in request 5 (4 in your email), I do not believe that all relevant departments have been asked to locate information relevant to this request. I will therefore email these departments with a request for information held in order to try to answer this element of your request. I shall do so today 11 April or tomorrow (latest) 12 April 2012. I shall ask for all responses to be expedited and I shall include you into this request. I am however satisfied that the answer you were given relating to contracts was entirely accurate with the additional difficulty that any minutes would have been before the digitization of the committee minutes and so cannot easily be checked I shall ask Adrian Tidbury (above) to take on this responsibility and reply to you as soon as possible.

You will note that in respect of titles supplied, you will note the covenants revealed on the land in question. These are the only covenants. I can confirm that title EX767457 is not in the Council’s ownership. It is owned by Remonix Properties Limited and is described on the register as being land adjoining 57 High Street, Ingatestone. I have provided the other titles which are within the Council’s ownership.

EX506273 is as you say privately owned. You will notice reference to it in EX399006. The area shaded blue is a right of way granted by the Council. There are no parking spaces located in this title and all rights to issue penalty charge notices follow from the Council’s ownership of spaces on our land and not on that title.

In respect of your final point, I am aware that the Council attempted to communicate with you at an incorrect email address and that this email was attempted towards the end of the statutory period, whereas any clarification should have been requested in the way I have described as soon as possible upon receipt of your request. I can only offer my apologies but also confirm that this department, like many others, is under a great burden in terms of workload and ask that you take this into account when considering this internal review. I am not aware of any extensive delays in respect of this request once Mrs Gibbins sought to respond in respect of the parcel of land she thought you were requesting information upon, though I accept the Council failed to clarify or assist as far as it could have done in this instance.

I trust that the production of the titles relating to Bell Mead and the clarification above is sufficient by way of a review of the way in which your request has been handled.

If you are not content with the outcome of the internal review, you have the right to apply directly to the Information Commissioner for a decision. The Information Commissioner can be contacted at: Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF.

Yours sincerely

Kevin Ebbs

Complaints Coordinator

Telephone: 01277 312705

Email:

Brentwood Borough Council, Town Hall, Ingrave Road, Brentwood, Essex CM15 8AY

tel 01277 312 500 fax 01277 312 743 minicom 01277 312 809