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Environmental Information Regulation Act and Internal Review

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Re: Environmental Information Regulation Act and Internal Re

Postby south1 » Sun Nov 13, 2016 7:27 pm

I have already made a complaint to the Information Commissioner some years ago about another case and he rejected my complaint even though I had very strong documentary evidence. Therefore I think that if I do what you suggest it will be equivalent to put all my eggs in the same basket. It is why I think that it will be good that someone reply to my questions. Moreover these replies could be useful to me also if my attempt the convince the Chief solicitor of council to accept my request for Internal Review fails and I want to make a complaint also to the Information Commissioner
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Re: Environmental Information Regulation Act and Internal Re

Postby b1969 » Sun Nov 13, 2016 7:52 pm

Insofar as I understand your questions:

The council were not obliged in law when they received your request to say whether they would deal with it under FOIA or EIR: there is no requirement to send an acknowledgement or announce to a requester that a specific access regime will apply.

They were obliged to consider whether the request was for environmental information, and, if it was, to deal with it under the EIRs.

When they sent their substantive response they were obliged, to the extent that they were refusing to disclose requested information, to explain which exemption (or "exception") applied.

They were also obliged when sending their substantive response to explain your right to make representations in line with regulation 11. If they failed to do that they were in breach of regulation 14.

But so what? They can continue to refuse you an internal review. They might arguably be in continuing breach of the EIR in doing so, but your remedy is the right of complaint to the ICO. You can lead a council solicitor to water, but you can't make him drink. But the ICO can.
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Re: Environmental Information Regulation Act and Internal Re

Postby south1 » Sun Nov 13, 2016 10:36 pm

It seems to me that the council should acknowledge receipt of a Freedom of Information Request because it should provide the applicant with the reference number of this FOI request. The question is what the council has to put in its acknowledgement email?

It seems to me that the Freedom of Information Act 2000 and the Environmental Information Regulation Act 2004 are two different Acts so the fact that the council is not maybe obliged to tell me under which Act it intends to consider my request does not mean that the council has the right to mislead me by telling me in its acknowledgment email that it will consider my request under the Freedom of Information Act 2000 if in reality it intends to consider it under the Environmental Information Regulations Act 2004

Even if the council is not obliged to say in is acknowledgment email that it will consider my request under the Environment Information Regulations Act 2004 it seems strange to me that it does not have to make reference to the Environment Information Regulation Act 2004 at least in its response to my request
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Re: Environmental Information Regulation Act and Internal Re

Postby b1969 » Sun Nov 13, 2016 11:06 pm

Thanks for not reading anything I've said.

Good luck.
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Re: Environmental Information Regulation Act and Internal Re

Postby south1 » Sun Nov 13, 2016 11:10 pm

Yes I have read anything you have said but it is in my nature I want always to know more and more....
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Re: Environmental Information Regulation Act and Internal Re

Postby south1 » Sat Jan 07, 2017 9:56 pm

Finally the council has accepted to consider my request for Internal Review. However the council refuses to upheld my request for Internal Review and carries on refusing to provide me with the information that I request because it says that it has noted my arguments as to why I consider that the disclosure of the information would be fair and lawful processing but it does not agree that there is a duty on the public to contact the Council or intervene concerning the bad smell

There is not a ‘legal duty’ for members of the public to complain to the council if they suspect a bad smell which is prejudicial to the health of the people. Members of the public cannot be prosecuted if they fail to do so. However I think that members of the public have nevertheless a ‘moral duty’ to complain to the council in such a circumstance. And this is evidenced by the fact that councils accept complaints from the members of the public who are worried about bad smell and let them to go through the three steps of their complaint procedure even though the members of the public who complain are not directly concerned because they do not live near of the bad smell.
By accepting these complaints from the members of the public the council recognizes somehow that members of the public have some kind of ‘moral duty’ to complain to it if they suspect that a bad smell is bad for the health of the people.
It is what has happened with my complaint about the bad smell because the council has accepted to process my complaint and has replied to it and let me go through the three steps of its complaint procedure. Otherwise the council would have refused to reply to my complaint telling me that this is none of my concerns because I do not live near of the bad smell

I have myself also the right not to feel anymore worried about the health of the people living near of this bad smell.

I would like to know if I have enough grounds to make a complaint to the Information Commissioner
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Re: Environmental Information Regulation Act and Internal Re

Postby atticus » Sat Jan 07, 2017 10:46 pm

Make your complaint and see if he accepts it. That has to be the easiest way, southy.
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Re: Environmental Information Regulation Act and Internal Re

Postby b1969 » Sun Jan 08, 2017 10:26 am

south1 wrote:I would like to know if I have enough grounds to make a complaint to the Information Commissioner


You don't need to aver grounds to make a complaint to the ICO - you simply ask them to determine whether your request was handled in accordance with the FOI Act (or in this case, the EIRs).

However, your reference to "fair and lawful processing" is of note - that's a term deriving from the Data Protection Act 1998 - were you asking for information relating to third parties?
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Re: Environmental Information Regulation Act and Internal Re

Postby south1 » Sun Jan 08, 2017 10:39 am

It is not a question of over grounding my complaint but to know if you can provide me further evidence that I can add to my complaint because the Information Commissioner upheld a complaint only if there is strong evidence

Yes I was asking information about third parties because I was asking information about some people living nearby which could be responsible for the bad smell
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Re: Environmental Information Regulation Act and Internal Re

Postby atticus » Sun Jan 08, 2017 10:45 am

Buy those people deodorant.
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