FOI Request - Review of Hopeman Residential Development

Request 101001374416

Thank you for your response in relation to my request  number 101001351162.
I note that you have redacted some of the materials and have not produced a copy of the notes from the meeting that took place on 1 September 2016, citing section 33(1)(b) of the Freedom of Information Act.
As you know, Information may only be withheld under section 33(1)(b) if disclosure would (or would be likely to) prejudice substantially the commercial interests of any person or organisation.  

Furthermore, all exemptions under section 33 are subject to the public interest test.  This means that, even if the exemption applies, the information must be disclosed unless the public interest in withholding it outweighs the public interest in disclosing the information.

It seems unlikely that disclosure of the entire content of the notes from the meeting on 1 September 2016 would prejudice substantially the commercial interests of any person or organisation.  If there is some content of the meeting notes that would be likely to substantially prejudice such interests, then I would have expected that content alone to be redacted and the rest of the meeting notes should be disclosed.  In the event that you maintain the position that the entire content of these meeting notes falls within the cited exemption, this essentially amounts to a full redaction of the document.  

In respect of the redacted documents held by Transportation, and in respect of the  (fully redacted) notes from the meeting on 1 September 2016, I would therefore be grateful if you could confirm:

1.    Whose commercial interests are likely to be prejudiced by the disclosure of the redacted information?;
2.    The particular nature of those commercial interests;
3.    What substantial prejudice would occur or be likely to occur to those commercial interests?;
4.    Why you consider there is at least a significant probability that this substantial prejudice would occur to those interests?;
5.    When applying the public interest test, what factors have you taken into account in determining
(i) as to why the public interest would be served by disclosing the information, and
(ii) why it would be served by withholding it.

Please also confirm the rational for your conclusion reached on where, on balance, the public interest lies in withholding this information.  In other words, why is there a greater public interest in withholding the information?

Response 23-12-2016

Following your request for a review of our response to the FOI you submitted, 101001351162, a review meeting was held at the council offices on December 13th 2016. In attendance were the Records and Heritage Manager, Senior Solicitor, Housing Strategy and Development Manager and Information Co-ordinator.

It was agreed that the Council’s original decision is upheld. All the information held in relation to your request concerning planning application 16/01663/APP was provided.

The relevant section of the notes from the meeting dated 1 September 2016 were paraphrased in the response, providing context and explanation that was not recorded in the original copy of the notes. No details related to your request that were recorded on this document were withheld, but please find attached here a copy for your reference.

The only information redacted from the response is not relevant to your request, which is why it was not provided to you. Furthermore it contained references to subjects other than planning application 16/01663/APP that are considered commercially sensitive, which was the reason for citing exemption 33(1)(b) of the Freedom of Information (Scotland) Act 2002 in relation to the redactions. It is not considered in the public interest to disclose this information as it would be likely to substantially prejudice the commercial interests of property developers and the Moray Council.

The Council seeks to act as transparently as possible and as such we have provided the original documents requested and redacted only the information not related to your request. However, the Council and developers must be able to undertake negotiations without being at a disadvantage and revealing the details of potential sites where land purchase has not been completed would jeopardize this. Considering that the information in question has been recorded in the past few months and relates to negotiations that are incomplete, it is not considered that sufficient passage of time has occurred to deem it no longer sensitive. This information is not yet in the public domain, and if it were to be revealed it would likely have an adverse effect on the negotiating power of the parties involved as the value of the land would be altered if landowners and other developers were aware of potential commercial interest in the properties involved. For the Council in particular, higher purchase costs would have a direct impact on public finance in an already difficult time.

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