Yarne

Ockham Lane
Martyrs Green
Cobham
Surrey
KT11 1LX
Tel: 0771 814 9247
10 June, 2016

The Chief Monitoring Officer

The Chairman of the Standards Committee,
Guildford Borough Council,
Millmead House,
Millmead,
Guildford,
GU2 4BB

Dear Sirs
Mr Neil Taylor, Interim Director of Development, Guildford Borough Council
Factual inaccuracies and misrepresentations in his letter to the Surrey Advertiser published 3 June,
2016

Complaint
Last week, on 3 June, 2016, the Surrey Advertiser published a letter sent by Mr Neil Taylor, Interim
Director of Development, Guildford Borough Council.
I write to complain about a number of fundamental factual inaccuracies in that letter and the
consequential misrepresentation of the Freedom of Information request which I submitted to
Guildford Borough Council in July, 2014 and my subsequent appeals in connection with that request
to the Information Commissioner and then to the First Tier Tribunal.
I also complain that it is inappropriate and contrary to the Nolan Principles for a paid public
employee to be seen publicly to be advocating a policy using false information and for a purpose
which is plainly political. In so doing Mr Taylor has departed from the usual rule that civil servants
are supposed to be impartial and only to advise on policy rather than to promote it.
The tenor of Mr Taylors letter is that he seeks to correct the record. However his letter misstates
the facts and presents a false and misleading picture of the true facts.

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I attach a copy of Mr Taylors letter. In the letter Mr Taylor makes a number of statements in relation
to the West Surrey SHMA. Those comments are preceded and followed by statements that the
Council was entirely reasonable in not supplying the information which I requested in my Freedom
of Information request. It goes on to state that I appealed to the Information Commissioner and to
the First Tier Tribunal in order to ask those bodies to obtain the information from Guildford Borough
Council.
The way Mr Taylors letter is structured is intended to give the public the impressions that the
Council had acted reasonably and had been vindicated by the Information Commissioner and the
First Tier Tribunal. In order to create this impression Mr Taylor uses several factual inaccuracies.
These create a false and misleading impression.
1. Factual inaccuracy no 1: my FOI request in July, 2014 related to the Guildford SHMA NOT to the
West Surrey SHMA
Mr Taylor writes his letter on the basis that the Freedom of Information (FOI) request which was the
subject of my appeal to the Information Commissioner and to the First Tier Tribunal related to the
West Surrey SHMA. That is factually false.
The FOI request which I submitted in July, 2014 related solely to the Guildford SHMA ie the SHMA
prepared exclusively in relation to the borough of Guildford. My request did NOT relate, as Mr Taylor
falsely implies, to the West Surrey SHMA. Nor could it have because at that time the West Surrey
SHMA had not been written. The three councils involved in the West Surrey SHMA only agreed to
cooperate in March, 2014 and the West Surrey SHMA was not completed until September, 2015
over a year later. The cooperation agreement was signed by Carol Humphrey the since departed
Head of Planning.
2. Factual inaccuracy no 2: the Information Commissioner did not use the words attributed to it by
Mr Taylor or any similar words.
Mr Taylor writes that the Information Commissioner found that the Council was entirely reasonable
in not supplying the information he requested
The reason that I appealed to the Information Commissioner was that I received this response from
the Council:
From: Martyn Brake [mailto:Martyn.Brake@guildford.gov.uk]
Sent: 02 October 2014 17:24
To: 'ben'
Subject: RE:EIR response - ID 1864 [UNC]

Dear Mr Paton
Further to my email of 26 September, I have now been able to consider your complaint
regarding the Councils response to your request under the Environmental Information
Regulations (EIR) for a copy of the GL Hearn housing projection model.
As you are aware, the model was produced for Guildford Borough Council by a third party
and is not held by the Council. The model is the intellectual property of that third party and is
commercially sensitive. They do not want to make the model publicly available. On that
basis, the information is exempt under the EIR and I am therefore upholding the decision to
only provide the information that was originally supplied in the Councils response of 12
September.

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You have the right to ask the Information Commissioner to decide whether your request has
been dealt with in line with the requirements of the Regulations. His address is: The
Information Commissioner, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF.
Yours sincerely
Martyn Brake
Martyn Brake
Executive Head of Organisational Development"

In fact the Information Commissioner did not use the word reasonable in relation to the Councils
conduct ANYWHERE in his finding. Nor, as Mr Taylors letter implies, did he find that the Council was
blameless. In FACT it found that
i)

The Council had not complied with the FOI regulations by failing to respond within the statutory
period
ii) The Councils given reason for non-disclosure (that the information was considered to be
commercially sensitive to the Councils sub-subcontractor) was not valid under the FOI
regulations.
This is what the Information Commissioner actually wrote:
Para 2:The Commissioners decision is that Guildford Borough Council
correctly confirmed that the requested information is not held and that it
complied with regulation 5 of the EIR and; failed to issue a refusal notice within
20 working days and breached regulation 14 of the EIR.
Para 10: In this case, during the Commissioners investigation, the council
confirmed that the information it had previously referred to (in its internal review)
as being the intellectual property of a third party and being commercially
sensitive, is not actually held. The council acknowledged that the position it
took at the time of the internal review was, therefore, incorrect.
Para 12: The council has explicitly stated to the Commissioner that there is no
business need for the council to hold the formulae in question and that the
information is not held by the consultant on the councils behalf.
Para 14: The Commissioner has, therefore, determined that the council
disclosed all the relevant information it holds which falls within the scope of the
request and that it complied with regulation 5 of the EIR.
The ruling dated November, 2014 can be read here: https://ico.org.uk/media/action-wevetaken/decision-notices/2014/1042657/fer_0558599.pdf
It is important to be clear what the Information Commissioners powers allow it to do and what it in
fact said. The Information Commissioner only has the power to require a public authority to disclose
information which it holds. It is a sufficient defence for the authority to state that it does not hold
the information and therefore cannot disclose it. The Information Commissioner has no powers to
compel an authority to obtain information which the public might reasonably think it should hold.
The Information Commissioner did not say that the Council was reasonable or unreasonable in not
having the information. That question was outside its remit. It merely accepted the Councils
statements that it did not hold the information.

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I considered it absurd that a public authority seeking to calculate a housing need projection should
be unable to disclose the calculations because the party to which the work was sub-subcontracted
claims intellectual property and that it was commercially sensitive. The Information Commissioner
held that that was NOT a basis for withholding the information. On that point the Information
Commissioner agreed with me.
By putting words into the mouth of the Information Commissioner, in particular by using the word
reasonable which does not appear anywhere in the Information Commissioners findings (which
can be found on its website under the reference: FER0558599) Mr Taylor presents a wholly
misleading impression.
In fact the Information Commissioner found that the Council did not have to disclose the
information requested solely and exclusively on the narrow ground that it held that the Council did
not possess the information.
I disagreed that the Council did not possess the information on the basis that the concept of
possession is not limited to physical possession but includes ownership and control. I consider that
the Council owns and controls the information and that the sub-subcontractor held the information
on behalf of the Council. On that basis I appealed to the First Tier Tribunal.
The First Tier Tribunal held a paper hearing at which I was not represented. The Tribunal upheld the
Information Commissioners finding that on the basis of the Councils representations it did not
hold the information. It concluded:
For the reasons above we find that on the balance of probabilities the Council
do not hold the requested information. [my emphasis]
3. Factual inaccuracy No3: I did NOT request the software algorithms that make the modelling
tool work
Mr Taylor states that the Council does not have the software algorithms which make the modelling
tool work. That is entirely beside the point. I never requested the software algorithms which make
the modelling tool work. Nor did I request the modelling tool. Nor did I request the software
algorithms which make the modelling tool work.
My Freedom of Information request (FOI10004126) was made in July, 2014.
It stated:
Please supply a copy of the GL HEARN housing projections model. This model has
been prepared as part of the evidence base for the new Local Plan and forms part
of GLH's SHMA document. The model is a maintained, I expect in spreadsheet
format. Please supply an electronic copy of hte model in a conventional
spreadsheet format ie Excel or similar. Please ensure that all assumptions are
explicitly stated. Please ensure that any linked data is also supplied or supplied in
hard copy form.

In response the Council sent me

an Excel spreadsheet containing the housing projections model. It

could not have done that if it had not held a copy of the model. Why then did I complain? I
complained because the model had been carefully copied in such a way as to include only the
numbers and to exclude ALL the formulae and the assumptions in the formulae. I therefore
requested a copy of the model including the formulae and assumptions. It was the formulae that

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had been omitted from the cells in the Excel spreadsheet which I asked for NOT the algorithms
which made Microsoft Excel or some other modelling tool work. There is a profound difference.
4. Mr Taylors letter seeks to make political points and as such is inappropriate
conduct for a civil servant.
Mr Taylors letter makes some overtly political comments. For example he wrote:
Some opponents of the Local Plan appear to confuse and blur the edges of the two figures [ie the
Objectively Assessed Housing Need and the Housing Target mentioned in the previous paragraph.]
This is a direct attack on opponents of the local plan. As a civil servant Mr Taylor should not
express highly partial opinions and exclusively attack those on one side of the debate. His
comments are blatantly political. As a matter of fact it is not the opponents of the local plan who
blur the edges of the two figures it is the organisation for which Mr Taylor works, the Council,
which blurs the edges. For example, it is remarkable that the local plan just sent out for

consultation nowhere sets out an explanation of the relation of the Housing Target to the OAN nor
supplies a figure for the Housing Target, nor sets out any reconciliation of the Housing Target to the
OAN.
5. Mr Taylor fundamentally misrepresents my position
Mr Taylor deliberately confuses the facts to create a wholly unreliable impression. He writes on the
basis that my FOI request related to the West Surrey SHMA it did not. He implies that the
Information Commissioner used words which it in fact never used. He implies that I asked for
something which in fact I did not ask for.
My point is not the narrow legalistic point as to whether the Council is obliged to disclose this
information under the FOI regulations on the ground that it does not hold the information. My
point is the more important and fundamental point that the Council SHOULD have obtained this
information in the first place.
Mr Taylors obfuscation of my point appears intended to conceal the fact that the Council has a
duty to inform the public about the evidence supporting its local plan and that it has failed to
provide critical information in relation to that evidence. It is not a misconception that the Council
is being unreasonable in withholding information.
The facts are that
1) The Council has the power to obtain and publish the arithmetic used to calculate the
housing projections and all the relevant assumptions
2) The Council has chosen not to do so.
Instead it has delegated the matter to a sub-subcontractor. Despite the subcontractors website
stating

the Council has not obtained a copy of the model, tested different scenarios or updated the model
as new information become available [sic]. Nor has the Council disclosed all the assumptions in the
model
Interestingly, that sentence has been removed from the sub-subcontractors website in just the last
few weeks.
The reason the Council has not disclosed all the assumptions is that it claims never to have received
a copy of the model. That at least is what it has told both the Information Commissioner and the
First Tier Tribunal. All this despite it being apparent that the Council had the freedom, in fact the
duty, to contract with GL Hearn on terms such that the assumptions would be publicly disclosed and
despite the fact that the Justin Gardner website made it quite clear that the Council would have
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access to the assumptions if it wished. It is quite clear that the Council COULD disclose the models
formulae and assumptions IF it wanted to.
If the Council is not obliged to disclose some information pursuant to the Freedom of Information
regulations because it does not hold the information is, in the greater scheme, completely beside
the point. The whole point is that this is a public consultation. The purpose of the SHMA is to arrive
at an OBJECTIVELY Assessed Housing Need. If the figures cannot be tested they cannot by definition
be objective. For the public to be properly consulted it must be properly informed. That means
setting out all the relevant information in a manner that the public can use. The Housing Projections
go to the heart of the local plan. They are therefore extremely relevant. The Local Plan Expert Group
(set up by Parliament) says that the model should apply demographic assumptions to generate
results that are replicable by others [my emphasis]. The Council has not done this. Given that there
are known shortcomings in the Guildford SHMA the forerunner of the West Surrey SHMA) this is
particularly remiss. To take just one of a number of possible examples, the raw data (from Office for
National Statistics (ONS)) states that the existing population of the borough of Guildford is expected
to fall over the plan period. Despite this the local plan proposes to build some 16,000 or so new
houses. Factors such as these deserve proper scrutiny and should not be delegated to a subsubcontractor. It makes one wonder what the Councils motives are. Theres an interesting concept
called plausible deniability which is described on Wikipedia. Delegation to a third party or a subsubcontractor is one way that large organisations seek to delegate responsibility for difficult
decisions.
For Mr Taylor to argue that the Council is not hiding the base data used to produce the SHMA is a
non-sequitur. The base data at the ONS and elsewhere does not belong to the Council. Although it
cannot hide the original sources it can make it extremely opaque as to where the information can be
found and how it has used and manipulated it.
Mr Taylors letter expresses the hope that his explanation helps everyone understand the correct
situation and our proper preparation of this aspect of the [housing number]. His explanation does
not present the correct situation. He blatantly misrepresents the facts regarding my July, 2014 FOI
request. He reports the Information Commissioners finding in a misleading fashion. He attacks those
who consider that the Housing Target has not been explicitly reconciled back to the OAN in the local
plan. His explanation is in fact profoundly misleading. It makes extenuating arguments for a
political decision to create and disclose the evidence base for the local plan in a very particular and
partial fashion. It is one thing for politicians to pull the wool over the publics eyes and to manipulate
the facts. It is entirely another when the civil service aids and abets the ruling political party.

Yours faithfully,

G B Paton
Cc Guildford Dragon, Surrey Advertiser.

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