Discussion Note for Internal Review
Somerset Direct ref: 2699660 Council service ref: ENV 1218
The withholding of the information held in this case relies on use of 2 EIR exceptions, under regulation 12(4)(d) and 12(4)(e).
Evaluation of the engagement of the regulations
The regulation 12(4)(d) states: “…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”
ICO Guidance on this regulation[1] states that “material in the course of completion can include information created as part of the process of formulating and developing policy, where this process is not complete”.
The documents held relate to the Personal Travel Planning (PTP), the Travel Plan (TP) and the S106 agreement. These were in the course of completion when the documents were created. The information contained in the held documents was created as part of the process of formulating and developing these elements of the agreement.
On this basis the regulation might be seen to be engaged.
However, it can also be shown that the Information Commissioner considers that the documents themselves must be shown to be incomplete or in draft form for the regulation to be engaged.
“This regulation provides that materials that are, at the time of the request, in the course of completion, or are unfinished documents, or are incomplete, are exempt from disclosure”[2]
In the ICO decision notice FER0349127 it is noted that “it is the Commissioner’s view that the relevant consideration here is the information contained within each document itself and the purpose for which it was created not the overall project or development proposal it relates to”. In considering certain documents which the Chichester District Council had explained “related to matters which are still in the course of completion”, the Commissioner found that “there is no evidence to suggest that [the document itself (33)] is a draft report or unfinished document”. With regard to an email (document 17) he found “no evidence to suggest that this was not a completed communication”. The Commissioner therefore concluded that regulation 12(4)(d) did not apply to those documents.
In DEFRA v IC and Portmann (EA/2012/0105) the Information Tribunal did not agree with either DEFRA or the Information Commissioner that regulation 12(4)(d) had been engaged with respect to a “draft proposal”. The Tribunal found that, despite the use of the word “draft”, it was not, in fact, an unfinished document. It was a, rather, “finished document written to discuss the matters which were the subject of consultation”.
Two of the documents held in this case may be said to be, in themselves, complete. These are:
- The summary of SCC requirements and outcomes from the S106 meeting
- The email sent from the officer to the developer
Despite the fact that theserelate to draft material, it may thus be argued that they do not engage regulation 12(4)(d) because they are not themselves drafts or incomplete.
Regulation 12(4)(e) states: “…a public authority may refuse to disclose information to the extent that: (e) the request involves disclosure of internal communications”
The Council response relates this exception to the summary of SCC requirements and outcomes from the S106 meeting. This was written by the officer and not intended for communication outside the authority. The regulation could also relate to the handwritten meeting notes taken by the officer at the meeting.
ICO Guidance[3] states that an ‘internal’ communication “is a communication within one public authority”. It will include “…notes of meetings or any other documents if these are circulated or filed so that they are available to others”[4], or “a note or aid memoire created by a Council officer which is left on record for others to consult”
Since the meeting notes and summary were not communicated outside the authority the regulation is therefore engaged for this material.
Evaluation of the Public Interest Test
The Council’s response included a public interest test providing arguments for and against disclosure of the documents held in relation to the request for information.
The ICO Guidance[5] on use of regulation 12(4)(e) notes:
“Its purpose is to protect the safe space public authority’s require to formulate policy, debate ‘live’ issues and to reach conclusions without being hindered by external comment”
“Public interest arguments should be focussed on protecting the public authority’s private thinking space. Other arguments will not be relevant..”
but, also that:
“There is no automatic or inherent public interest in withholding an internal communication. Arguments should relate to the particular circumstances of the case and the content and sensitivity of the specific information in question”
Furthermore, regulation 12(2) provides that public authorities must apply a presumption in favour of disclosure when using this exception. This means that they “will have to disclose some internal communications, even though disclosure will have some negative effect on internal deliberation and decision making processes”
The first argument used in the Council’s response relates to the so-called “safe space” argument. The response lists this as “the authority’s requirement for a private thinking space to reach decisions, and finalise its position, away from public scrutiny.”
However, ICO Guidance on use of regulation 12(4)(d) notes that, in considering the weight of this argument, the timing of the request is crucial. It is, in particular, “affected by whether the process in question is complete”. “If the process is effectively complete (for example if the public authority has… published a final version of draft documents), then it is more difficult to argue that the safe space is still needed”[6].
In its decision FER0184885 the ICO was not convinced by “safe space” arguments from the DECC which had applied reg 12(4)(d) to withhold drafts versions of a report. The Commissioner found that “by the time the complainant submitted his request… the final version of the report had been published… Therefore there was no need for a safe space to be provided… to discuss drafts of the report free from intrusion.”
In DEFRA v IC and Portmann (EA/2012/0105) the Tribunal found that Defra’s “safe space” argument should be accorded little weight as the …. consultation options were not live at the time of the request.
The fact that the S106 Agreement and the Travel Plan were already finalised prior to the FOI request for information relating to former drafts of them, will therefore weigh against use of the “safe space” argument in the context of regulation 12(4)(d).
The Personal Travel Plan (PTP) has not, however, been finalised as discussions with the PTP provider are ongoing. Therefore there may be legitimate arguments for a “safe space” as concerns discussions and decision-making in this area. However, given the content of the actual material in question, and the lack of any specific harm which would likely result from its disclosure, such ‘safe space’ arguments would not outweigh the arguments for the public interest in disclosing these materials
ICO Guidance on regulation 12(4)(e) states that “the need for a safe space will be strongest when the issue is still live. Once a public authority has made a decision, a safe space for deliberation will no longer be required and the argument will carry little weight.”[7]
This was confirmed by the Information Tribunal in DBERR v Information Commissioner and Friends of the Earth (EA/2007/0072, 29 April 2008)“This public interest is strongest at the early stages of policy formation and development. The weight of this interest will diminish over time as policy becomes more certain and a decision as to policy is made public”
The ICO Guidance also notes that “this sort of safe space will only last for a short time, and once an initial announcement has been made there is also likely to be increasing public interest in scrutinising and debating the details of the decision.”[8]
The summary S106 agreement in question here, and the Travel Plan mentioned within it, had already been finalised (and the related decisions made) by the time the request for information relating to the draft form was received. Therefore our use of the safe space argument to justify applying the exception under regulation 12(4)(e) is also questionable in so far as the information relates to these.
As noted above, the draft PTP, which is mentioned in the summary document, is not yet finalised. However, the specific content pertaining to this cannot be said to significantly hinder the Council’s internal decision making process or hinder its ability to debate these proposals internally or reach a conclusion.
The Commissioner’s view is that public interest arguments for maintaining this exception which “do not relate in any way to concerns that disclosure would hinder the Council’s internal decision making process or hinder its ability to debate these proposals internally or reach a conclusion….. are not relevant to the purpose of this exception”[9].
The second argument in our response against disclosure of the documents held concerns distracting public debate. Our response states that: “Releasing details of draft material into the public domain would distract public debate away from the substantive issue. Instead debate could focus on secondary issues such as any deficiencies in the information or the difference between a draft and a final version. There is a real risk that public debate would be distracted and therefore seriously impact on the public authority’s resources”.
The ICO Guidance recognises these arguments but notes that “it should generally be possible for the authority to minimise this distraction by providing an explanation of any deficiencies or differences”.
Decision notice FER0210838 concerned the withholding of a draft report which contained information that was subsequently revised. The notice commented that the Commissioner is “generally sceptical about arguments that disclosure of information could mislead or cause confusion, since the public authority can usually put the information in context”.
The third argument used in our response against disclosure is that:
“Information on one version of draft documents, which have subsequently been amended, would not materially inform public debate on the issue”.
ICO Guidance[10] notes that “there is always an argument for presenting a full picture of how a decision was made or a policy position arrived at”; and that “even if the information would not in fact add much to public understanding, disclosing the full picture will always carry some weight as it will remove any suspicion of ‘spin’”. However, if the information in question can be shown to “shed little light on the issue itself, then “the weight of the argument for disclosure may be less than it otherwise would be”.
In ICO Decision Notice FER0221965 the Information Commissioner considers the public interest test for withholding internal communications under reg 12(4)(e). The Chiltern District Council had argued that “little weight can be attached to the public interest in providing access”[11] to the requested pre-planning information; and that the pre-planning application process “would be hindered if disclosure were routinely ordered for this type of information”. “If planning officers knew that such information would be disclosed , they would feel constrained when giving advice which would then hinder the pre-planning process…”
The Commissioner noted that “there is a strong public interest in the planning process”; and that “there is a strong public interest in knowing how decisions are reached by the Council and ensuring that all planning applications are considered in a fair, consistent and unbiased way”. He also “remained unconvinced that the disclosure of the [documents in question] would have the effect the Council describes”; and found that “the Council has not explained exactly how disclosure of this basic information would hinder the pre-planning process or the ability of planning officers to make decisions in the future. He therefore concluded that there are no compelling public interest arguments in this case in favour of maintaining the exception provided by 12(4)(e) of the EIR.”
Conclusion
This internal review finds that: Regulation 12(4)(d) is engaged in relation to one of the documents held (the handwritten meeting notes) . Regulation 12(4)(e) is engaged in relation to two of the documents held (the handwritten meeting notes, and the summary of the S106 meeting and outcomes)
The public interest arguments against disclosure of the information contained in the three documents held do not outweigh the public interest arguments in favour of their disclosure.
[1] Material in the course of completion, unfinished documents and incomplete data (regulation 12(4)(d)) 20120711.
[2] ICO Decision Notice FER0488392
[3] Internal Communications (regulation 12(4)(e)) 20130319
[4] Op cit
[5] Op cit
[6] Material in the course of completion, unfinished documents and incomplete data (regulation 12(4)(d)) 20120711
[7] Op cit
[8] Op cit
[9] ICO Decision Notice FER0349127
[10] Op cit
[11] ICO Decision Notice FER0221965