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Environmental Information Regulation Act and Internal Review

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Re: Environmental Information Regulation Act and Internal Re

Postby atticus » Sat Nov 12, 2016 12:40 pm

Exactly. The OP's track record here is hardly encouraging.

Does hairy seriously think that the people he mentions were complaining about their neighbour's windows and all the other petty grievances southy keeps bombarding his council with?
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Re: Environmental Information Regulation Act and Internal Re

Postby south1 » Sat Nov 12, 2016 12:44 pm

I have already reported this issue of smell to the Environmental Health and my FOI request concerns the information that I received from the Environmental Health following my complaint.

The council has not refused my request for Internal Review of the handling of my FOI request because my request was vexatious but because it is out of time. And the purpose of this thread is to discuss the law about this issue of out of time. I do not ask for legal advice because you do not my name and you do not know the address of my council library and you do not know the kind of smell involves
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Re: Environmental Information Regulation Act and Internal Re

Postby Hairyloon » Sat Nov 12, 2016 12:45 pm

No, but you proposed a rule, and I was highlighting a flaw in the proposal.
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Re: Environmental Information Regulation Act and Internal Re

Postby atticus » Sat Nov 12, 2016 12:48 pm

I did not. The rule exists.
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Re: Environmental Information Regulation Act and Internal Re

Postby b1969 » Sat Nov 12, 2016 1:22 pm

The OP should complain to the Information Commissioner. The council is entitled to invoke the 40 day limit for internal review but this does not remove the right of complaint to the commissioner.

Here

By the by, there are procedural requirements for classing a request as "manifestly unreasonable" (the regulations' equivalent of "vexatious" under the FOI Act). An authority cannot simply refuse to correspond.
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Re: Environmental Information Regulation Act and Internal Re

Postby south1 » Sat Nov 12, 2016 2:58 pm

Yes I can complain to the Information Commissioner but it would better that I try to do my best to get first a reply from the council to my request for Internal Review of the handling of my FOI request because this will give me an additional chance to have complaint upheld.
There are strict conditions to be met to classify a FOI request as vexatious. However there are also strict conditions which should be met to allow the council to use the 40 working days deadline which applies to the Environmental Information Regulations Act 2004 but not the Freedom of Information Act 2000 and I would like to know if according to what I say in my lengthy first post these conditions have been met?
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Re: Environmental Information Regulation Act and Internal Re

Postby b1969 » Sat Nov 12, 2016 6:11 pm

Whether the EIR apply or not is a matter of fact. If the information requested is environmental avoiding to the definition in the EIR (and the Directive to which they give effect) then it is exempt from disclosure under FOIA and must be dealt with under EIR. What the council tells or told you is effectively irrelevant.

It's important to note that if the ICO think you should have had an internal review they will tell the council to give you one. It seems to me to be pointless to try to argue the case with the council when you have the right of appeal to ICO.
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Re: Environmental Information Regulation Act and Internal Re

Postby south1 » Sat Nov 12, 2016 11:17 pm

The information concerned in my complaint to the Environment Health was environmental but I am sure that the information concerned by my FOI request that I made following the reply to this complaint was environmental

The issue is that the council did not inform me since the outset in its acknowledgement email that it has the intention to consider my FOI request under the Environmental Information Regulations Act 2004. Therefore I was not aware of this 40 working days deadline.

Moreover it seems to me that the council has not complied with Regulation 14 of the Environmental Information Regulations Act 2004 because it has refused my Freedom of Information request without informing me that I had the right to complain against this refusal within 40 working days under Regulation 11

Regulation 14 of EIR states:

"14.—(1) If a request for environmental information is refused by a public authority under regulations 12(1) or 13(1), the refusal shall be made in writing and comply with the following provisions of this regulation
(5) The refusal shall inform the applicant—
(a)that he may make representations to the public authority under regulation 11; and
(b)of the enforcement and appeal provisions of the Act applied by regulation 18.
"

Regulation 11 of EIR states:

"11.—(1) Subject to paragraph (2), an applicant may make representations to a public authority in relation to the applicant’s request for environmental information if it appears to the applicant that the authority has failed to comply with a requirement of these Regulations in relation to the request.
(2) Representations under paragraph (1) shall be made in writing to the public authority no later than 40 working days after the date on which the applicant believes that the public authority has failed to comply with the requirement."


I do not know if the information I requested was environmental or not but I think that the fact that the council in its acknowledgement email did not tell me that it considers my request under the Environmental Information Regulations Act 2004 means that it did not consider my request under this Act and that it has changed its mind to use the 40 working days deadline as an excuse not to accept my request for Internal Review because it is embarrassing.

If I complain directly to the Information Commissioner he can refuse my request. However if I convince the council it can accept specially that my request for Internal Review has been refused by the same data protection officer who dealt with my initial FOI request and I can still ask his opinion to the Chief solicitor of the council who is the officer who should decide or not to accept my application for Internal Review.

It costs me nothing to make first a request to the Chief solicitor of the council because if he refuses my request I can still complain to the Information Commissioner. It will simply give two chances instead of only one to have my request for Internal Review accepted

Whether or not the Environmental Information Regulations Act 2004 applies is a different matter of whether or not the council uses its discretion not to apply the 40 working days deadline. Therefore it is in my interest to prepare the better possible what I will tell to the Chief solicitor of the council to convince him not to apply the 40 working days deadline and to accept my request for Internal Review because the council has not complied with Regulation 14 of the EIR and has not informed me in this acknowledgement email that it intend to consider my FOI request under this act
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Re: Environmental Information Regulation Act and Internal Re

Postby south1 » Sun Nov 13, 2016 1:50 pm

I have read the Environment Information Regulations Act 2004 and I found out that according to Regulation 14 of this Act in case the council refuses to provide the information requested under the FOI request the council has a duty to inform the claimant that he has the right to complain against this refusal within 40 working days under Regulation 11 of this Act.

However I have not found in this Act that it is stated that in case the council accepts to provide the information request but the claimant is not satisfied with the information provided or with the handling of his FOI request the council has also the duty to inform him that he has the right to complain within 40 working days under Regulation 11 of this Act.

I have not found also in this act that it is stated that when the council decides to consider a FOI request under the Environment Information Regulations Act 2004 it has a duty to inform the claimant

I have maybe not properly read the Environment Information Regulations Act 2004. Therefore I would like to know if some of you know where it is made reference to these two important requirements in this Act or in another piece of legislation. I think that somewhere it should made reference to these two requirements because for example it would be unfair to deal with a FOI request under the Environment Information Regulations Act 2004 without the claimant being aware of this fact and without being aware that if he wants to make a request for an Internal Review he should do this without 40 working days.

I need this information to convince the council to accept my request for Internal Review without the need to make a complaint to the Information Commissioner
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Re: Environmental Information Regulation Act and Internal Re

Postby b1969 » Sun Nov 13, 2016 5:11 pm

Complain to ICO. Say that the council didn't explain your rights and didn't tell you (if this is correct) that you had to request an internal review within forty days. Explain also why it was you in fact waited fifty days (I presume there's a good reason and not just that you didn't get round to it). Pound to a pinch of snuff they will tell the council to offer you the internal review.

Trying to prove your point by arguing about the regulations with the council's solicitor is unlikely to get you anywhere.

And if this is all only about a nasty smell which you've already referred to environmental health, you might want to consider whether it's actually worth anyone's time.
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