29.6.16. Standard FOI request via the WhatDoTheyKnow site for details of "Overage" agreements in last 12 years
26.7.16 Hammersmith & Fulham to NH
Information request
Our reference: 935713
Dear Mr. Harding
Thank you for your request for information received on 1 July 2016.
Your request
Please provide me with details of and the current status for all cases in the last 12 years where the Council has sold land to a private developer and included an Overage agreement under which the Council would share in any profit made by the developer.
Our response
This request is being handled under the Freedom of Information Act 2000.
From our preliminary assessment, we can confirm that compliance with your request would exceed the appropriate costs limit under section 12 of the Freedom of information Act 2000. This is currently £450.00, or 18 hours. We can confirm that the cost will be in excess of the appropriate limit and have therefore decided to refuse the request.
The Council's Asset Strategy and Portfolio Management team have estimated the time required to collate the requested information to be 40 hours. This is because the information is not held in a central manner by the Council, so would have to be put together manually. It is also the case that the Council may not have the information for historic years once they start looking.
It would first be necessary to compile a list of likely overage disposals since 2014, and then check each file on that list to confirm definite overage deals. This would take about 6 hours in total. If there were say 35 overage deals (3 a year), assuming 1 hour to summarise each file, this would take 35 hours.
If you wish to revise your request to potentially fall within the 18 hour limit, your request would need to cover a shorter and more recent time period.
If you are dissatisfied with the handling of your request for information, please contact the h&f InTouch team within 40 working days of receiving this response. They will consider the matters raised and decide whether they are referred to the Council's Information Manager for an internal review.
You can write to the h&f InTouch team at Room 229, Hammersmith Town Hall, King Street, London W6 9JU, or email: [1][email address]. If you are registered for self-service, via the Council's My Account portal, you can also do this online: [2]Click here to complete the form
You also have the right to appeal to the Information Commissioner at: The Information Commissioner’s Office (ICO), Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF. Tel: 0303 123 1113. Website: [3]www.ico.org.uk/concerns/. There is no charge for making an appeal. The ICO may ask you to contact Hammersmith and Fulham, so we can complete an internal review, before the ICO investigates the matter.
Please do not hesitate to contact me if you have any queries or concerns. Please remember to quote our reference, 935713, in any future communications.
Yours sincerely ,
James Hackett
Graduate Trainee – H&F In Touch
30.7.16 NH to Hammersmith & Fulham through WDTK
To: Hammersmith and Fulham Borough Council
Subject: Internal review of Freedom of Information request - Overage agreements for property developments in last 12 years
Dear Hammersmith and Fulham Borough Council,
Your reference: 935713
Please pass this on to the person who conducts Freedom of Information reviews.
I am writing to request an internal review of Hammersmith and Fulham Borough Council's handling of my FOI request 'Overage agreements for property developments in last 12 years'.
I refer to the above FoI request and your refusal to provide information on overage agreements on the grounds of cost.
I am convinced it is in the public interest for disclosure to be made and that such a reason for refusal is not justified where public money is involved when land owned by the public is sold. It is in the interests of Councillors and the public that such information is available – as it is with other (though not all) inner London Boroughs who have responded to similar requests.
Please therefore treat this letter as an appeal to be dealt with as a complaint through the Council’s Internal Review procedure.
A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/o...
Yours faithfully,
Nick Harding
25.10.16 from H&F to NH
Internal Review Request
Our reference: 935713
Dear Mr. Harding
We write regarding your request for an internal review received on 1 August 2016. Unfortunately, due to planned absences within the Information Management Team, we are unable to complete our internal review by the extended deadline of 25 October 2016.
We therefore need to extend the deadline by a further 20 working days to 22 November 2016. The extended deadline is 40 working days from the statutory 40 working day deadline. We apologise for any inconvenience this further delay may cause.
Should you wish to, you have the right to escalate your concerns to the ICO ahead of H&F completing the internal review.
The ICO can be contacted as follows:
The Information Commissioner’s Office (ICO), Wycliffe House, Water Lane,
Wilmslow, Cheshire SK9 5AF
Telephone: 0303 123 1113
Website: [1]www.ico.org.uk/concerns/
Your sincerely,
Anthea Ferguson
Senior Information Management Officer
Internal Review Request
Our reference: 935713
Dear Mr. Harding
I refer to our email of 25 October 2016.
Unfortunately, due to an increase in statutory workload, we have been unable to complete our internal review by the extended deadline of 22 November 2016.
We therefore need to extend the deadline by a further 20 working days to 20 December 2016. We apologise for any inconvenience this further delay may cause you. We are aware that you have been seeking this information for some time.
Should you wish to, you have the right to escalate your concerns to the ICO ahead of H&F completing the internal review.
The ICO can be contacted as follows:
The Information Commissioner’s Office (ICO), Wycliffe House, Water Lane,
Wilmslow, Cheshire SK9 5AF
Telephone: 0303 123 1113
Website: [1]www.ico.org.uk/concerns/
Yours sincerely,
Sarah Kelly
Senior Information Management Officer
Please do not edit the subject when responding to this email. Our case
management system (iCasework) will not deliver your email to the intended
recipient if the subject is amended in any way.
When you get there, please update the status to say if the response
contains any useful information.
Although all responses are automatically published, we depend on
you, the original requester, to evaluate them.
-- the WhatDoTheyKnow team
21.12.16 from WDTK re H&F to NH
You have a new response to the Freedom of Information request
'Overage agreements for property developments in last 12 years' that you made to
Hammersmith and Fulham Borough Council.
To view the response, click on the link below.
When you get there, please update the status to say if the response
contains any useful information.
Although all responses are automatically published, we depend on
you, the original requester, to evaluate them.
-- the WhatDoTheyKnow team
21.12.16 From H&F to NH
Information request
Our reference: 935713
Dear Mr. Harding
Please find attached our response to your internal review request.
I apologise for the delay of one day in sending this response to you.
Yours sincerely
Sarah Kelly
Senior Information Management Officer
Email attachment of 21.12.16 H&F to NH
Mr. Nicholas Harding
By email only: request 342582 e4cb5454@whatdotheyknow.com
21 December 2016
Dear Mr. Harding,
Re: Request for Internal Review under the Environmental Information Regulations 2004(EIR) case 935713
Thank you for your request for an internal review, received
on 1 August 2016. We have now completed our investigations.
Your original request for information (RFI)
Your RFI was received on 1 July 2016 and responded to on 29 July 2016. Please find a copy of H&F’s RFI response attached. Your RFI is set out in bold italics below:
“Please provide me with details of and the current status for all cases in the last 12 years where the Council has sold land to a private developer and included an Overage agreement under which the Council would share in any profit made by the developer.”
As part of the process of conducting our internal review, it has been necessary to consider the relevant law which applies in respect of this internal review request.
Relevant law
The Information Management Team (IMT) is responsible for investigating complaints which relate to whether H&F has complied with the Freedom of Information Act 2000 (FOIA) and the EIR. This includes investigating complaints which are made about how H&F has processed requests for information under the FOIA and EIR.
H&F’s response to your RFI withheld the requested information under section 12 of the FOIA, on the grounds that compliance with the request would exceed the appropriate costs limit.
While the RFI was initially processed under the FOIA, in the course of conducting this review, we have determined that the requests should have been processed under the EIR.
Regulation 2(1) of the EIR defines ‘environmental information’ as any information in written, visual, aural, electronic or any other material form regarding:
(a) the state of the elements of the environment, such as air and atmosphere, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements;
(b) factors such as substances, energy, noise, radiation or waste including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a);
(c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in (a) and (b) as well as measures or activities designed to protect those elements;
[...]
(f) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are or may be affected by the state of the elements of the environmental referred to in (a) or, through those elements, by any of the matters referred to in (b) and (c)
Having considered the nature of the information you have requested, we are satisfied that the information you are seeking would fall under (c) and (f).
We are therefore considering your internal review request under the EIR.
Delay in responding to internal review request
There is a statutory requirement to carry out internal reviews within 40 working days regarding complaints about RFIs processed under the EIR.
H&F received your internal review request on 1 August 2016, so the 40 working day deadline to respond to the request fell on 27 September 2016. Unfortunately, in error, the request was not assigned to IMT until after the 40 day deadline, on 29 September 2016, Due to planned absences, and an increase in statutory workload, IMT has subsequently had to extend the deadline for response by an additional 61working days. Please accept our apologies for this delay and any inconvenience this may have caused
.Your request for an internal review and our investigation
Your full request for an internal review is set out in bold italics below:
“I am writing to request an internal review of Hammersmith and Fulham Borough Council's handling of my FOI request 'Overage agreements for property developments in last 12 years'.
I refer to the above FoI request and your refusal to provide information on overage agreements on the grounds of cost.
I am convinced it is in the public interest for disclosure to be made and that such a reason for refusal is not justified where public money is involved when land owned by the public is sold. It is in the interests of Councillors and the public that such information is available –as it is with other (though not all) inner London Boroughs who have responded to similar requests.”
The RFI response set out H&F’s grounds for withholding the information requested in the RFI, from disclosure, under section 12 of the FOIA, on the grounds that complying with the request would exceed the ‘appropriate limit’.
The ‘appropriate limit’ is defined in the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 as a starting point to assess the reasonableness of FOIA requests. Under the regulations the ‘appropriate limit’ for H&F to comply with a FOIA request is £450.
In order to calculate whether the appropriate limit is exceeded, H&F is required to calculate, at a rate of £25 per person, per hour, the costs which are reasonably expected to be incurred in carrying out the following activities in complying with the request:
·determining whether the requested information is held;
·locating the information, or a document containing it;
·retrieving the information, or a document containing it; and
· extracting the information from a document containing it.
The appropriate limit will be exceeded if carrying out these activities would require more than 18 hours’ work.
The RFI response stated that obtaining the requested information would exceed the appropriate limit, as a preliminary assessment by the council's Asset Strategy and Portfolio Management team had estimated that collating the requested information would take approximately 40 hours.
Our internal review therefore focused on the following matters:
(i) assessing the time which would potentially be involved in obtaining the requested information; and
(ii) considering the request under the relevant provisions of the EIR.
In order to complete the internal review, we contacted H&F’s Legal Services department, and Corporate Property service, which are the service areas which would hold the requested information.
(i) Potential time required to obtain requested information
As part of the internal review process, H&F conducted a fresh assessment of the potential time likely to be required to respond to this request. The assessment was carried out by the director of H&F’s Building & Property Management service (the Corporate Property service is part of Building & Property Management), and a senior property solicitor from the council’s Legal Services department. They conducted a rigorous analysis of the work
which would be required to collate the requested information. The main points of their analysis are set out below:
· H&F does not classify its property disposal files on the basis of whether the disposal included an overage clause. Such a clause would simply be one of many terms of the disposal contract for the property.
· as stated in the RFI response, as a starting point for obtaining the requested information, the council would need to obtain a list of all property disposals dating back to 2004. Staff would then need to go through the list to identify property disposals consisting of private treaty sales to private developers.
· once a list of such disposals had been compiled, each disposal file would need to be reviewed, to ascertain whether this included an overage clause. This would involve looking at the heads of terms of each agreement, or reviewing the relevant contract, to gather the requested information, namely “details of and the current status for all cases”
.As a consequence of this more rigorous analysis of the work involved, the councils estimate of the potential time required to obtain the requested information has been revised. It is now estimated that it would take staff from Legal Services and Corporate Property a total of 100 hours to go through the above process, and compile the requested information.
(ii) Relevant Provisions of EIR
To decide whether H&F can disclose the requested information, it is necessary to consider Regulation s.12(4)(b) of the EIR. Regulation 12(4)(b) provides that a public authority may refuse to disclose information to the extent that the request for information is manifestly unreasonable. The exception can apply where complying with a request means a public authority would incur an unreasonable level of costs, or an unreasonable diversion of resources.
H&F has considered the cost limit set out under the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations as a starting point to assess the reasonableness of the request. Although these regulations do not apply to the EIR, ICO guidance states that these regulations give a clear indication of what Parliament considered to be a reasonable charge for staff time. As stated above, under the regulations the ‘appropriate limit’ for H&F to comply with a FOIA request will be exceeded if the following activities would require more than 18 hours’ work:
· determining whether the requested information is held;
· locating the information, or a document containing it;
· retrieving the information, or a document containing it; and
· extracting the information from a document containing it.
However, all of the circumstances of the case must be taken into account to determine whether a request can be deemed manifestly unreasonable on the grounds of cost under the EIR.
Based on the scope of the request, H&F has estimated that the resources required to provide the requested information would involve100 hours work. This work included: obtaining a list of all property disposals over a wide timeframe-12 years; going through the list to identify property disposals consisting of private treaty sales to private developers; investigating each disposal to a private developer, to see if this included an overage clause, by looking at the heads of terms, or reviewing the contract; and obtaining the details and current status of the overage agreement, from the disposal file.
Given the length of time that it would take H&F to carry out the exercise of seeking to locate, retrieve, assess for relevance, and collate the requested information, H&F considers that it would be manifestly unreasonable to comply with the request, and the exception under Regulation 12(4)(b) applies in this case.
On this basis, H&F considers that the exception under Regulation 12(4)(b) of the EIR is engaged.
Public Interest Test
In order to apply the 12(4)(b) exception, H&F is required to consider a public interest test, and whether, in all the circumstances, the public interest in maintaining the exception, outweighs the public interest in disclosing the information. Public interest arguments for and against disclosure in this case, are set out below:
Public interest arguments in favour of disclosure
· there is a legitimate public interest in being transparent with information about the environment to which the public has access.
· there is a public interest in disclosing information to ensure that public authorities are accountable for, and transparent, about their actions, and decisions they have taken.
· disclosure would help people understand how decisions are made, and this may help create greater trust in public authorities, and greater public participation in the council’s decision-making processes.
· disclosure of the withheld information could assure the public that the council is meeting its obligations in respect of its statutory functions associated with property matters.
Public interest arguments in favour of maintaining the exception
There is a strong public interest in maintaining the exception due to the unreasonable burden that compliance with the request would place on H&F.
Balance of the public interest
There is a public interest in being transparent with information about the environment. However, there is a strong public interest in not placing a manifestly unreasonable burden upon public authorities. In this case, due to the wide time frame of the request, and the number of records that would need to be searched to collate the required information, it would be manifestly unreasonable to comply. On balance, H&F considers that in this case, the public interest in favour of disclosure is outweighed by the public interest in favour of maintaining the exception.
H&F is therefore withholding this information under the exception provided by Regulation 12(4)(b),and this response therefore acts as a refusal notice for the withheld information.
Information supplied by other London boroughs
You have stated that other (though not all) inner London boroughs have responded to similar requests for information. However, we are unable to comment on this. It is possible that those organisations have been able to provide you with this information because this can be swiftly retrieved from their record management systems, and/or those boroughs enter into only a small number of property disposals with private developers, involving overage agreements.
Advice and assistance
When refusing a request for environmental information under regulation 12(4)(b),on the grounds of burden, a public authority is normally expected to provide the applicant with appropriate advice and assistance.
Although your RFI was decided under the FOIA, the RFI response included advice that you should revise your request to cover a shorter and more recent time period. As part of this internal review under the EIR, we likewise recommend that you submit an amended RFI to the InTouch team, covering a shorter and more recent time period, to ensure that compliance with the request under the EIR will be manageable.
The email contact details for the InTouch team are set out at the end of this letter.
Internal review outcome
Our investigation into your request for internal review concludes that your complaint is not upheld because H&F was correct to withhold the requested information, and the request is refused under Regulation 12(4)(b) of the EIR.
While you have stated that other inner London boroughs have responded to similar requests for information, it is possible that those councils are able to swiftly retrieve this information from record management systems, and/or only enter into a small number of property disposals involving overage agreements.
Although your RFI was decided under the FOIA, the RFI response included advice that you should revise your request to cover a shorter and more recent time period. As part of this internal review under the EIR, we likewise recommend that you submit an amended RFI to H&F’s InTouch team, covering a shorter and more recent time period, to ensure that compliance with the request under the EIR will be manageable. The email contact details for the InTouch team are set out at the end of this letter.
If you feel dissatisfied with the handling of your request for an internal review under the Environmental Information Regulations 2004, you have the right to appeal to the Information Commissioner at:
The Information Commissioner’s Office (ICO), Wycliffe House, Water Lane, Wilmslow,
Cheshire SK9 5AF
Telephone: 0303 123 1113
Website: www.ico.org.uk/concerns/
There is no charge for making an appeal.
Yours sincerely,
Sarah Kelly
Senior Information Management Officer
NOTE: Please do not edit the subject line when replying to this email.
Please contact H&FInTouch@lbhf.gov.uk with all new requests for information.