FOI Request Review of Elgin Transport Strategy
Review of Elgin Transport Strategy FOI 101001425928
The request was made under the Regulations. The response advised that the matter was dealt with under the 2002 Act. The response did not claim an exemption under section 39(2)(a) of the 2002 Act.
The response provided no information requested under questions 1 and 2 on the basis that the information was comercially sensitive, and exempt from disclosure under section 33(1)(b) of the 2002 Act. The cost of software required to operate the model has also been relied upon as justification for witholding the requested information.
In relation to questions 5 and 6, the response advised that no documents relating to the decisions to which those questions refer exist beyond the 'Elgin Transport Strategy' report by Jacobs dated 4 October 2016.
We are dissatisfied with the response for the following reasons:
1. There is a presumption, both under the 2002 Act and the Environmental Information (Scotland) Regulations 2004, of disclosure of information. The exemption relied upon in this case can only be applied where the public interest in disclosure is outweighed by the benefit of the public of not disclosing information. The information the Council has refused to disclose is technical in nature. There has been no attempt in the refusal to apply the public interest test. The exemption has for this reason alone not been properly applied. Moreover, the witholding of information in response to questions 1 and 2 is a misapplication of the exemption contained in section 33(1)(b). Guidance from the SIC is clear that whether information is 'commercially sensitive' depends on the comercial value of the content of the information, not that there was a cost in obtaining the information.
2. The disclosed 'Brief for Preparation of Transport Strategy for Elgin (2017-2030)' makes reference to the production of technical notes, apprisals and cost estimates, and makes provision for meetings for which the Council will no doubt have minutes. The response in relation to questions 5 and 6 that there are no further documents beyond the Jacobs report does not appear accurate. These documents should have been provided under the terms of the original request and should now be provided.
3. As the request sought disclosure of environmental information, any response under the 2002 Act is required to either claim an exemption under section 39(2)(a) and provide a seperate response under the regulations, or to provide a response which considers the request fully both under the 2002 Act and the Regulations. As the response did not claim an exemption under Section 39(2)(a) , the response should have considered the request under the regulations, and advised the exception under which the information was withheld. This was not done. If the withheld information does not fall under an exception then the information should be disclosed.
Following your request for a review of our response to the FOI you submitted, 101001425928, a review meeting was held at the council offices on April 10th 2017. In attendance were the Records and Heritage Manager, Senior Solicitor, Transport Manager and Information coordinator.
In Point 1 of your review request you outline that the information withheld is technical in nature and for this reason it is not commercially sensitive. This was discussed and it was agreed to release the raw data behind the modelling results as requested; please find attached HERE.
The information is numerical (technical as you state), however, as previously outlined without a VISUM license, a person with the requisite skills to model effectively and the Moray Council’s modeling file, which is proprietary to Moray Council, the information is essentially a list of numbers. Therefore this was previously withheld. Please note that there are interpreted results published in the Jacobs report Appendix 1A.
Further information and access to the model remain exempt under Section 33 (1)(b) of the Freedom of Information (Scotland) Act 2002 and exception 10 (5)(e) Commercial Confidentiality of the Environmental Information (Scotland) Regulations 2004. The release of this information is also not in the public interest as, should the model become publically available through this process, it could then be utilised by private business at significant cost to the council and ultimately the tax payer, as well as potentially be open to misinterpretation and misunderstandings.
Point 2 of your review request refutes the disclosure that there is no further information to provide in response to questions 5 and 6 of the original response, other than those contained within the Jacobs report (as answered). No meeting minutes were produced by the council, therefore these would be exempt under Section 17 of the 2002 Act; Information not held. The decision to discount the options outlined in questions 5 and 6 did not involve the utilisation of any documents, notes, etc. These decisions were made during discussions between qualified professionals utilising their knowledge and understanding of the modelled results, background knowledge of the area and the objectives to be achieved. Therefore this information remains exempt under Section 17 of the 2002 Act and exception 10(4)(a) Information Not Held of the 2004 Regulations.
Point 3, this information request was initially wholly dealt with under the Freedom of Information (Scotland) Act 2002 and as such you are correct in that an exception should have been claimed under Section 39(2)(a) of the Regulations, which was a clerical error, for which we apologise. The request has now been dealt with under both the Freedom of Information (Scotland) Act 2002 and the Environmental Information (Scotland) Regulations 2004.