Gasworks development : BHCC Failures Chapter 3 – Failure to respond to multiple Freedom of Information requests.
The following document sets out the history of the Brighton Society’s Freedom of Information requests to Brighton & Hove City Council over an eighteen month period between February 2021 and August 2022, and a subsequent attempt to obtain answers to our FOI requests on 10 March 2023.
The Council’s consistent failures to respond to our requests or provide the information we requested, resulted in SEVEN separate interventions from the Office of the Information Commissioner (ICO) including THREE Decision Notices requiring the Council to provide its responses to our FOI requests and to our requests for Internal Reviews of the unsatisfactory way in which our FOI requests had been handled.
In spite of all our efforts as detailed below, the FOI process has utterly failed.
The following record is set out in 3 parts:
Part 1 represents the main thread of our efforts to find information about pre-application discussions between Berkeley St William and the Council.
Part 2 describes a further FOI request to see the minutes of three meetings between Berkeley St William and the Council listed in the Planning application at which affordable housing and viability topics were discussed.
Part 3 describes a separate FOI request to see the minutes of 24 meetings between Berkeley St William and the Council which were also listed in the Planning application.
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PART 1
On 8 February 2021 we lodged our first FOI Request . We asked to see copies of all correspondence on planning matters between the Berkeley/St William Group and the Council.
This is the text of the FOI request:
“We request to see copies of all correspondence on planning matters between the Berkeley/St William Group and the Council after January 2019 up to the date of the FOI request on Feb 8th” [2021].
On 8 March 2021 – a month after making the request – we received an email from the Council saying it was unable to respond until 6 April.
A month after that we received another email saying it would be 30 April.
Another month later a further email informed us it would now be 30 June.
So we lodged a complaint with the ICO (Information Commissioner’s Office).
On 7 May the ICO wrote to the Council instructing it to respond to our request within 10 working days – ie by 21 May. But we heard nothing from the Council.
On 25 May we wrote to the Council requesting a response by 2 June otherwise we would have no option but to lodge a second complaint with the ICO. Again we received no response.
On 4 June we complained to the Information Commissioner for a second time.
On 9 June the ICO issued a Decision Notice to the City Council instructing the Council to provide the information we requested within 35 calendar days. If it failed to do so, it confirmed that the ICO will consider referring the case to the Commissioner’s enforcement solicitors.
The 35 days expired on July 15th.
On July 16 at 5.15pm we received a reply from the Council rejecting our request on the grounds it would exceed the Council’s cost limit for FOI requests, though it was established that there are 862 emails on file.
At no time prior to that did the Council give us the slightest indication that a cost limit could apply. Nor did we receive any indication about the number of correspondence items there were. And of course there was no way of knowing.
It took over 23 weeks to get absolutely nowhere.
On 20 July following the advice of the Information Commissioner we then asked for an Internal Review.
That set out a Summary of our concerns:
- Brighton & Hove City Council’s failure to provide the information we requested after 23 weeks of trying.
- The unhelpful, not to say obstructive tactics of three times deferring the date by which we were led to expect a response from firstly March 8, then to 6 April, then to 30 April, then to 30 June.
- The failure to respond to our request within the 10 day timeframe set out in the ICO’s letter to the Council dated 7 May.
- The failure to respond to our reminder dated 25 May about the ICO’s letter and deadline.
- The failure to respond to our request within the 35 day period following the ICO’s Decision Notice dated 9 June. A response was only received at 17.15 on Friday July 16 – the day after the 35 day deadline expired.
- The totally unhelpful attitude to indicating what timescale might best relate to the information we have requested in the suggestion that we narrow the timescale applicable to our request. How can we know, without access to the information, what are the relevant or most appropriate timescales?
- All these failures aggregated together indicate a deliberate attempt to withhold information which should be open to scrutiny in the public domain, and are intentionally obstructive to the principle of Freedom of Information.
[As a postscript to this, we finally received a response from the Council to our request for an internal Review. It arrived on March 1st 2022 – 8 months after we had requested it. It claimed that staff problems were to blame for the delays in responding. A response should have been made within 40 days].
By this time (mid-July 2021), we were seriously wondering whether the Council had something to hide. Was there something in the correspondence with Berkeley that it was determined not to divulge? Or was it just incompetence, lack of staff or some other reason?
It had taken over five months of correspondence to get absolutely nowhere.
Next steps
We then discussed with the fifteen Gasworks Coalition community groups what we might do to resolve the problem. We decided to split up the the 862 items into twelve separate FOI requests, each dealing with a two month period of the 24 months of our original request, and each one sent by a separate member of the Gasworks Coalition. They were sent within a day or two of each other between 18 – 21 July 2021.
But that didn’t work either.
On 16 August 2021 he Council rejected all our FOI requests. The reason given was that if the Council considers that two or more requests by different persons appear to the Council to be acting in concert or pursuance of a campaign, then the costs of complying with those requests will be aggregated. So back to square one. Too costly again. And it was now 27 weeks after lodging our original request. And still we’d got nowhere.
So we discussed another solution. That was to reduce the original 24 month period which the 862 items of correspondence had covered. So we asked to see a vastly reduced number of correspondence items within a much more restricted time frame – just 300 items of correspondence between Berkeley/St William and the Council in the period immediately prior to May 31 2020 – which was the period just before the Berkeley Group introduced its first high rise proposals, and probably also when the draft UDF to allow tall buildings on the Gasworks site was being prepared. But of course we were still flying in the dark.
On 18 August 2021 we lodged a formal complaint to the Council detailing its failures in providing the information we had requested. We received an acknowledgement promising a response within two days. It finally arrived – over seven months later – on March 28 2022.
On 20 August 2021 we lodged the FOI request to see the 300 emails.
On 13 September 2021 the Council rejected our FOI request for a third time. The reason this time? Well, we had submitted our request within 60 days of our previous request. That isn’t allowed and so yet again it had been aggregated with our previous requests and so was again too costly.
We thought long and hard and had further discussions with the other Gasworks Coalition members and decided to write to the ICO again.
One of our Gasworks Coalition members commented,
“I think what you suggest doing is really the only way to progress, as this has now become preposterous. As a local community deeply and legitimately concerned about the democratic aspects of the planning procedure which will affect all our lives, why shouldn’t we act together to try and get the answers we so earnestly require to protect ourselves against any planning proposals that are not in our interests as local people?”
Another member drew attention to the wording in the Freedom of Information Act,
“The main principle behind freedom of information legislation is that people have a right to know about the activities of public authorities, unless there is a good reason for them not to. This is sometimes described as a presumption or assumption in favour of disclosure. The Act is also sometimes described as purpose and applicant blind.
This means that:
- everybody has a right to access official information. Disclosure of information should be the default – in other words, information should be kept private only when there is a good reason and it is permitted by the Act;
- an applicant (requester) does not need to give you a reason for wanting the information. On the contrary, you must justify refusing them information;
- you [ie, the Council] must treat all requests for information equally, except under some circumstances relating to vexatious requests and personal data (see When can we refuse a request? for details on these). The information someone can get under the Act should not be affected by who they are. You should treat all requesters equally, whether they are journalists, local residents, public authority employees, or foreign researchers; and
- because you should treat all requesters equally, you should only disclose information under the Act if you would disclose it to anyone else who asked. In other words, you should consider any information you release under the Act as if it were being released to the world at large.”
On September 27 2021 we wrote to the ICO including the following documents:
– A full history of all our FOI requests including dates and content of all correspondence with the Council;
– A letter arguing that the Council was wrong in refusing a request from the same requester just because it is for information on a related topic. The FOI Act says that it can only do that where there is a complete or substantial overlap between the two sets of information. In our case it was substantially different because it related to a completely different and substantially reduced timescale.
– The refusal decisions received from the Council.
On 13 October 2021 we received an email from the ICO confirming that “our complaint has been accepted as eligible for further consideration”.
Having heard nothing for a few weeks we wrote on November 22 asking for an update on progress. We received a reply from the ICO apologising for the delay in responding, citing “the ongoing burden of the pandemic is causing delays….“
The 60 working days between FOI requests referred to above expired in mid-November.
On 30 November 2021 we then lodged yet another FOI request identical to the previous one – for 300 items of correspondence in the period prior to May 31 2020.
On 31 December 2021 we received an email from the Council saying they needed more time, and were planning to respond by 31 January 2022.
The Gasworks planning application had been lodged by then and it appeared that we were running out of time to get the information we had requested before the public consultation period expired in late January 2022.
On 4 January 2022 we wrote yet again to the ICO enclosing the Council’s request for a further delay. Our email included the following statement:
“It really is unacceptable that virtually 11 months since we first made our FOI request we have failed utterly to elicit any information whatsoever from Brighton & Hove City Council. And it looks very much as though it is using exactly the same delaying strategy as it used following our first FOI request back in February last year.
There is a presumption under the Freedom of Information Act in favour of information being made public. We have seen no indication of that whatsoever over the past eleven months. Please intervene.”
On 15 January 2022 we received a reply from the ICO enclosing a letter it had written to the Council giving the Council 10 working days to respond to our FOI request – ie by 28 January.
On 3 Feb 2022 having again received no response from the Council by 28 January, we wrote again to the ICO to confirm that we had received no response.
On 8 February 2022 we received a copy of a Decision Notice issued by the ICO to the Council giving it 20 working days to comply with the Notice.
On 1 March 2022 we finally received a response to our request for an Internal Review which had been lodged on 20 July 2021 – over seven months after we lodged our request. Although the response partly upheld our request, the reasons given for the unacceptable delay seemed to be primarily because of staff shortages and lack of resources, The excessive cost previously noted was also mentioned, though quite why this contributed to the seven month delay in responding was not explained.
On 8 March 2022 the 20 working day period allowed by the ICO expired.
On 17 March 2022 we wrote to the ICO again, notifying them that yet again no response had been received from the Council and requesting that the ICO take legal action.
On 23 March 2022 we received an email from the ICO informing us that they had written to the Council informing it that it must comply within the Decision Notice within 7 days or it would refer the matter to the ICO’s solicitors.
An hour and a half later we received a response from the Council to our FOI request dated 30 November. It did not refer to the correspondence from the ICO but confirmed that the information we had requested was indeed held by the Planning Dept but was exempt from disclosure because of the likely cost, even though, based on the information we had been given by the Council, we had calculated that the cost would be substantially below the £450 which the Council had previously informed us was the maximum sum permitted. It went on to say that even if the cost had beern reasonable, our request would be exempt from disclosure under Regs 12(4)d and 12(4)e of the Act. We were informed that our request was thereby closed.
On 27 March 2022 we wrote again to the ICO requesting the ICO’s view as to whether it considered that the Council was fulfilling its obligations under the FOI Act.
On 28 March 2022 we received a response (from the Council) to our complaint to the Council dated 21 August 2021. It upheld our complaint “that the Information Governance Team did not respond to our FOI Request in a timely and professional manner with numerous deadlines being missed or a lack of timely communication on our [the Council’s]part.
On 29 March 2022 the ICO asked for further information about our previous FOI requests made on 20 July 2021 and August 2020 which the council had replied to on 16 August 2021 and 13 September 2021. Both had been refused under regulation 12(4)(b) of the Environmental Information Regulations (the EIR).
We replied the same day saying that events had now superseded those requests and up-dating the ICO on the latest situation.
On 30 March 2022 we received two emails from the ICO, the first advising us that our “next step should be to either seek an internal review of the way the Council dealt with your request or to submit a refined request.”
The ICO officer then went on to say “However, I am a little concerned that the Council is insisting that you indicate your serious purpose when making a fresh request – this appears contrary to one of the basic principles of the EIR: that each request should usually be treated as motive-blind. I intend to write to the Council to point this out – although this should not affect your decision to submit a fresh request or a request for an internal review.”
The second email (from a different ICO officer), confirmed that a public authority “should respond to any EIR requests in accordance with the Regulations – essentially providing you with the information or issue a valid refusal notice and not look to rely on section 17(6) of the FOIA to not respond at all… under the FOIA, if a request is found to be vexatious a public authority may look to rely on section 17(6) of the FOIA to not respond to further requests on the matter – which it appears to be referring to above (which is still appealable to the Commissioner).
In other words that that the reason for the refusal of our FOI requests in the opinion of the ICO was invalid.
That same day we replied to the ICO requesting its advice on how best to proceed, particularly as at that time, it appeared that the planning application might soon be presented to the Council’s Planning Committee.
On 6 April 2022 following the ICO’s advice set out above, we lodged a request with the Council for an Internal Review of the way our FOI requests had been dealt with. The document ran to over 10 pages long and set out the details relating to the four FOI requests made over a period of fifteen months from February 2021 to April 2022.
We informed the ICO and sent them a copy, noting that the 40-day period in which the council had to reply would expire on June 9.
On 14 April 2022 we received a reply from the Council confirming it would aim to provide a response by 9 May. No response was received by then.
No response was received by June 9 either which was the deadline the ICO had given the Council.
On 15 June 2022 we wrote the ICO to inform them that the Council had failed yet again to respond to our request for an Internal Review within the statutory 40 day period.
On 16 June 2022 the ICO wrote to the Council as follows:
Our Reference: IC-176036-J6V0
Dear Sir/Madam,
Your ref: 9713957
I write in respect of the above complaint. Please note that we previously dealt with this matter under case reference IC-148704-L9R0. We have assigned a new reference number to take this matter forward.
Mr Mustoe has contacted us to state that he has yet to receive the outcome of the Council’s internal review – which he requested on 6 April 2022.
As you may be aware, Regulation 11 of the EIR imposes a statutory deadline of 40 working days in which to complete a reconsideration (internal review) from the date that the review is sought.
Despite having taken an inordinate amount of time to respond to the original request, the Council now appears to have failed to complete its internal review by the statutory deadline.
Please ensure that you complete your internal review and inform Mr Mustoe of the outcome by Thursday 23 June 2022. If you fail to do so, the Commissioner may issue a further decision notice, finding that the Council has breached Regulation 11 of the EIR and ordering you to complete an internal review. I trust that this will not be necessary.
If you are in anyway unsure as to what is expected of you, please contact me at the earliest opportunity.
Yours sincerely,
Roger Cawthorne
Information Commissioner’s Office
0303 123 1113 Ext. 0330 414 6455
On 23 June 2022 and in spite of the ICO’s demand to the Council set out above, we received an email from the Council requesting a further delay – this time until 8 July 2022.
That same day we again wrote to the ICO to inform them that the Council had contacted us to request yet a further delay until July 8 2022 – over 4 weeks beyond the 40 day deadline.
On 24 June 2022 the ICO replied saying that,
“[the ICO]can issue another decision notice but the law requires that the compliance deadline cannot be sooner than the deadline by which the Council would be entitled to appeal the decision. That would mean that the Council would be entitled to take 35 calendar days from the date the decision notice was issued.
The Council has indicated to me that it is considering disclosing some of the information so, in the circumstances, it may be that you get a quicker response by waiting.”
The same day we replied: “Thank you for your prompt reply which appears to paint a frankly depressing picture of an increasingly impenetrable web of yet more time-consuming periods of legal notices and 35 day deadlines.
In view of that, we feel we have no option but to agree with your suggestion that we should wait for the City Council’s response due on July 8th.”
On 8 July 2022 (the delayed deadline for a response), we received an email from the Council at the very last minute requesting yet another delay – for another two weeks – until 22 July.
That same day we wrote again to the ICO saying that unless the ICO is prepared to issue another Decision Notice, there appears to be no other way of getting the Council to fulfil its obligations under the FOI Act.
On 11 July 2022 the ICO issued a Decision Notice against the Council notifying the Council that,
“The Council must take these steps within 35 days of the date of the Decision Notice [15 August]. Failure to comply may result in the Commissioner making written certification of this fact to the High Court pursuant to section 54 of the Freedom of Information Act and may be dealt with as a contempt of court”.
It went on to confirm that the Council had breached Regulation 11 of the EIR and stated that, “the Commissioner is is particularly disappointed that this is the second decision notice he has had to issue to require the Council to comply with its EIR obligations in respect of this request”.
On 4 August 2022 we received a response from the Council to our request for an Internal Review into the way the Council handled our FOI requests.
Predictably it contained absolutely no information about the matters we requested in our FOI request – the 300 pre-application emails.
It concentrated almost wholly on making a long list of arguments as to why the Council considers that the information should not be released. The whole thing reads almost as though it was written to protect the interests of the Berkeley St William Group rather than the citizens of Brighton & Hove. It was clear that Berkeley had had a significant input.
The Council’s email attached four PDF files – the first was the Council’s response; the second was our request for an Internal Review; the third and fourth were previous cases (quoted in the Council’s response) which it claims set comparable precedents. Without doing a lot more work, we have no idea whether this is correct or not.
And that’s where the situation still stands. Continual obstruction and obfuscation seems to have won the day. What a travesty!
PART 2
In addition to the requests to see email correspondence between Berkeley/St William and the Council, we noticed in the planning application documentation reference was made to 24 meetings between the Council and the Berkeley Group.
At that time we had become very concerned about the failure of the Council to insist on either a 40% affordable housing or a Financial Viability Assessment (FVA) before validating the Planning Application.
There were three meetings referred to in the Planning Statement which discussed affordable housing design and and viability topics.
So on 12 January 2022 we made a further FOI request to see the minutes of those three meetings.
On February 9 2022, four weeks later, we received an email from the Council saying,
“We are considering your request of 12 January 2022 under the Freedom of Information Act 2000.
Under FOI we can extend the 20 working day statutory response deadline for another 20 working days. We are able to do this in your case to consider the public interest test in relation to s.43 (Commercial Interests).
We now plan to respond to you by 9 March 2022. We thank you for your patience and apologise for any inconvenience this extension causes you.”
This failure to respond to FOI requests is completely consistent with the Council’s previous failures.
On March 9th 2022 we received yet another request for a further delay until 6 April.
On March 11 2022 we wrote yet again to the ICO requesting that the ICO urgently insists that the Council fulfils its obligations under the FOI Act in relation to this further FOI request.
On 14 March 2022 the ICO wrote to the Council instructing it to provide the information within 10 working days.
On 23 March 2022 we received from the Council a copy of an email enclosing a copy of only two very short and redacted notes of meetings held in October 2021 to discuss potential funding for affordable housing. There were apparently no minutes of the three meetings we had requested details of.
It seems incredible to us that meetings which were important enough to be listed in a major planning application were not minuted, as the Council claims. We noted that Council Standing Orders require minutes to be kept of all important meetings. These meetings are specifically referred to as ‘meetings’ in the Planning Statement submitted by the applicant.
On 30 March 2022 we replied to the ICO confirming that view and stating we were not satisfied with the Council’s response. That’s where that FOI request ended – with virtually no information – like all the others.
PART 3
It should also be noted that on 14 February 2022 a separate FOI request was made by Charles Harrison on behalf of the Gasworks Coalition to see the minutes of the 24 meetings between Berkeley/St William and the Council referred to in the Planning Application (as also mentioned in Part 2 above).
That FOI request too fell on stony ground. No information was released. On April 21 2022 an Internal Review was then requested. The Council responded on 7 June. Only then did the Council acknowledge that some of the information requested should have been provided. Notes (not minutes) of five of the twenty four meetings were released. Some of the content of three of these had been redacted.
There are two issues here.
1) The Applicant stated in its planning application that 24 pre-application meetings took place between themselves and the Planning Officers, but BHCC were unable to provide any records at all of 19 of these 24 meetings;
2) The Planning Officers apparently did not take minutes of any of these 24 pre-application meetings. If this is true, besides not complying with Council Standing Orders as already noted above, this practice would put the LPA in a vulnerable position if a subsequent dispute over a Planning Application needed to be escalated.”
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The Council were evidently determined not to release any of the information we had requested.
Six months later we saw that Councillor Leo Littman, (at that time Chair of the Planning Committee), when asked at a full Council meeting on 2 February 2023 about the Council’s failure to respond to FOI requests, had stated that,
“I can’t answer that question in as much as I am unaware of there being Freedom of Information requests, where these Freedom of Information requests lie at present, so I’m sorry I can’t answer that question.”
So, on 10 March 2023 we wrote to Councillor Leo Littman enclosing the full account of our FOI requests exactly as set out above.
He replied, “…in this case I can see that there are significant issues relating to the Information Governance Team. I’m afraid I don’t know who’s portfolio this falls under, but will ask my colleagues and then direct your concerns to the appropriate person.”
Since then – entirely predictably – there has been a deafening silence.
This diary of FOI requests and matters arising from them over a period over well over two years, raises many questions that the Council needs to answer about its consistent delays, its obstructive tactics and its failures to comply with not only with the letter but also the spirit of the Freedom of Information Act.
