Maldon District Council

The complainant has requested emails which mention her in relation to planning matters, emails which mention her which may have been written from or to specific councillors, and emails relating to the clearance of trees under the power cables on land south west of Nipsells Chase. The Commissioner’s decision is that Maldon District Council has incorrectly applied the exemptions at sections 36(2)(b)(i) (inhibition to the free and frank provision of advice), 36(2)(b)(ii) (inhibition to the free and frank exchange of views), and 36(2)(c) (prejudice the effective conduct of public affairs) of the FOIA. The Commissioner has decided that the council has correctly applied the exemption for personal data at section 40(2) of the FOIA and regulation 13(1) of the EIR. She has also decided that Maldon District Council has incorrectly applied that exemption where disclosure would prejudice commercial interests at section 43(2) of the FOIA and the exception at regulation 12(5)(e) of the EIR where disclosure would have an adverse effect upon the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest. In addition, the Commissioner has decided that the council correctly applied the exception at regulation 12(4)(e), where the request involves the disclosure of internal communications, but that in all the circumstances of the case the public interest in maintaining the exception is outweighed by the public interest in favour of disclosure. In relation to the information to which Maldon District Council applied the exemption for investigations and proceedings conducted by public authorities at section 30(1) of the FOIA and the exemption for legal professional privilege at section 42 of the FOIA, the Commissioner’s decision is that the information is environmental and therefore should have been dealt with under the EIR. He has decided that the exception at regulation 12(5)(b) does not apply to the information to which council applied the exemption for legal professional privilege at section 42 of the FOIA but it does apply to the information to which the council applied the exemption for investigations and proceedings conducted by public authorities at section 30(1) of the FOIA and that in all the circumstances of the case the public interest favours maintaining the exception. The Commissioner has also decided that it is feasible that information is held by individual councillors on their own private email systems which could amount to council business falling within the scope of the request under section 3(2)(b) of the FOIA. To ensure compliance with the legislation, the Commissioner requires the public authority to disclose document numbers 24, 25 and 26, the attachment to document 29 (i.e. the minutes of 4 February 2015 of the Essex Youth Service Maldon Youth Strategy Group), the attachments to documents 109 & 114 (i.e. the minutes of the Mayland Parish Council meetings of 11 November 2014 and 14 October 2014), documents  138 (2 emails only dated and timed at 22 July 2O14 15:56 and 15:49) and 166, the email dated and timed at 27 January 2015 15:35 within document 87, and to ask the named councillors to search their private email accounts for information falling within the scope of the request and if any is held, the council should issue a fresh response in relation to that information under the applicable legislation. Information Tribunal appeal EA/2017/0064 allowed.