Tag: section 21 FOIA

Information “reasonably accessible” despite hefty charge

Posted on | by Charles Bourne

In Davis v ICO and Health and Social Care Information Centre (case no. EA/2012/0175, judgment 24 January 2013) the First-Tier Tribunal applied the absolute exemption under section 21 of FOIA 2000 for information which is reasonably accessible to an applicant other than under section 1. The requested information consisted of health statistics which the public authority was willing to provide to the appellant under its publication scheme for a charge of £1,550. The appellant argued that the charge meant the information could not be considered to be reasonably accessible to a person of ordinary means.

 Section 19 of FOIA requires public authorities to adopt publication schemes, subject to approval by the Information Commissioner, for the dissemination of information with or without charge. Section 20 provides for the ICO to approve model publication schemes which public authorities may adopt without further approval.

 The critical provision in this case was section 21(3) which provides that information is “not to be regarded as reasonably accessible to the applicant merely because it is available from the public authority on request, unless the information is made available in accordance with the authority’s publication scheme and any payment required is specified in, or determined in accordance with, the scheme”.

 The Tribunal interpreted this provision as meaning that if a scheme has the ICO’s approval and if the charge is specified in the scheme or ascertainable from it, the ICO and the Tribunal are required – rather than merely empowered – to regard the information as reasonably accessible.

 There was therefore no scope for the ICO or the Tribunal to judge the accessibility of the information by reference to the charge or any other factor. The ICO’s approval of the model scheme was conclusive. The Tribunal was persuaded that the ICO is indeed the appropriate authority to determine whether access is reasonable, and that it was hard to see why Parliament should enact a detailed system for approval of publication schemes and notification of charges “if compliance simply made the authority`s published information eligible for an assessment as to whether it was reasonably accessible”.

 It seems that the only remedy for an applicant who is deterred by charges is to draw the matter to the ICO’s attention. The ICO is empowered to revoke his approval on notice and, as the Tribunal noted, might take such a step if there was evidence of charges deterring information requests.

 Charles Bourne

FOUR NEW LOCAL AUTHORITY DECISIONS BY THE FIRST-TIER TRIBUNAL

Posted on | by Robin Hopkins

The bulk of the First-Tier Tribunal’s most recent decisions under both FOIA and the EIR have concerned local authorities. Adequate searches, deleted emails and hard drives and listed building consent feature prominently. Here are some notable points from four of the decisions.

Deleted email account: Tribunal finds against Council

Councillor Jeremy Clyne v IC and London Borough of Lambeth (EA/2011/0190) merits close attention from local authority information officers. Southern Rail carried out work at its Streatham cleaning depot without planning permission. The Council considered taking enforcement action, and instructed a consultancy to report on this option. The requester asked for all reports and communications about the consultant’s draft report. The Council provided some information, but the requester was dissatisfied. He maintained, as requesters often do, that it was ‘incredible’ that further information did not exist. The Council insisted that it had not deleted any relevant information. This was enough to satisfy the Commissioner – but not the Tribunal.

One issue went in the Council’s favour: the Tribunal agreed that information held by its external solicitors was not held on its behalf in the circumstances. Otherwise, the key issues went against the Council.

First, the Tribunal disapproved of the Council’s approach to the wide request for information:

“Lambeth argued that in light of the broad scope of the request it had been reasonable to limit its searches to the planning department which was most likely to hold information. The Tribunal disagrees.  It is not for the public authority unilaterally to redraw the ambit of the request; if the scope is too wide to enable a proper search to be carried out, efforts should be made to refine the request.”

The Council further argued that “the breadth of the request meant that it was too difficult to ensure that every loose end was tied up. They argued that Mr Clyne should resubmit targeted individual requests to follow up these loose ends”. Again, the Tribunal disagreed.

Secondly, as to the adequacy of search and whether, on the balance of probabilities further information was held, the Tribunal applied the established approach from Bromley v IC and Environment Agency (EA/2006/0072) [2011] 1 Info LR 1273. A number of further documents were discovered only after the Commissioner’s decision; the Council had used incorrect or inadequate search terms; important communications about the consultant’s report appear to have gone unanswered (which seemed unlikely) and there was no paper trail accounting for the substantial changes between the draft and final versions of the report. The Tribunal noted that:

“Such a fundamental change as happened between the October 2007 and February 2008 versions of the report in [the requester’s] experience could only happen upon instruction and

not spontaneously. Consequently there ought therefore to be a paper trail.  Planning and legal departments are in different buildings, therefore more likely to communicate by email rather than “pop their head around the corner”. The practice of the Council and their preferred method of communication is by email… The Tribunal has not received an explanation that satisfies it that no recorded information was generated, nor an adequate explanation as to why if generated it has not been retained.”

This led to the third important feature of the decision: following Keiller, the Tribunal ordered the Council to restore the email account of the planning officer who was the focus of the requested information (his account had been expunged some time after the complaint to the Commissioner), to search that account and then to provide the requested information or issue a refusal notice.

Deleted hard drive: Tribunal finds for Council

The requester in Gilbert v IC and Northumberland County Council (EA/2012/0274) was a public transport campaigner seeking records about the 681 bus service (and the Council’s alleged ‘decimation’ of bus services). The Council provided some information, and again the Commissioner was satisfied.

As with Clyne, there were some difficulties with the Council’s case before the Tribunal. The Appellant provided four items he possessed which fell within the scope of his request, including correspondence between the Council and his MP. He argued that: “the Council has withheld or destroyed correspondence which confirms the depth of opposition to its highly unpopular bus cuts.” Further, the Council’s former Head of Transport, to whom the MP had written, had left the Council in March 2011 and his hard drive was wiped on his departure (which was after the handling of the request). The Tribunal observed that:

“the Council’s systems for locating information appear not to have functioned well in this case, as illustrated by the initial failure to identify relevant correspondence with an MP. Wiping the hard disc of a departed senior member of staff, without first checking that it did not contain information which might not be available elsewhere is a practice which might merit review.”

However – again by application of Bromley – the Tribunal was satisfied that on balance the Council had done enough and that no further information was likely to be held. This was largely down to the quality of the searches carried out by the relevant officer in response to the request:

“He circulated a communication to all members of the integrated transport unit  ‘who are either known to be involved in the discussions relating to service 681 or may have been party to documents or other forms of relevant evidence during this period’.  Further he made a search of the Council’s CRM using a range of search terms relating to the bus, the

operator and the route.”

In the Tribunal’s view, that was an adequate search, and the appeal was dismissed.

Statutory nuisance and listed buildings are not ‘private’ interests

In Kuschnir v IC and Shropshire Council (EA/2011/0273), the requester’s (listed) property suffered from damp attributable to a problem at the (listed) bicycle shop next door, Hawk Cycles. The Council deemed this a statutory nuisance and ordered Hawk Cycles to undertake remedial works. Hawk Cycles provided the Council was a schedule of works. The requester sought a copy of that schedule. His request was refused, based on regulation 12(5)(f) EIR (adverse effect on the interests of the person providing the information).

The Tribunal found that the exception was not engaged. It did find there to be sufficient adverse interest to engage the exception, although it saw “no evidence that the disclosure of the information would have made litigation against Hawk Cycles more likely, and if any claim was started by Mr Kuschnir, it is abundantly clear that he would have been entitled to disclosure of the information in the context of the litigation.  In our view the potential litigation context therefore adds little to the debate.”

Another requirement for the engagement of regulation 12(5)(f) is, however, that the provider of the information “was not under, and could not have been put under, any legal obligation to supply it to that or any other public authority”. This was the stumbling block for the Council: the Tribunal construed section 80(1) of the Environmental Protection Act 1990 – which empowers councils to take “such other steps as may be necessary” for requiring the abatement of a statutory nuisance – as meaning that the Council could have compelled Hawk Cycles to provide it with the schedule of remedial works.

The Tribunal went on to find that even if the exception was engaged, the Commissioner and the Council had got the public interest balance wrong. The public interest in disclosure was not great, but the Commissioner had been wrong to find it to be of a private nature. This was in part because the case involved statutory nuisance. The Tribunal added that “it is also relevant we think that Mr Kuschnir’s property was a listed building and one that the Council itself features on guided walks of Shrewsbury.”

The Commissioner had also wrongly characterised the public interest in maintaining the exception. It could not be said that disclosure would undermine the voluntary provision of information to the Council in circumstances Hawk Cycles “where were clearly under threat of an abatement notice requiring them to execute works to prevent a recurrence of the nuisance if they did not co-operate with the Council”.

The requester was therefore entitled to a copy of the schedule.

PDF sufficient

The requester in Forster v IC and Westminster City Council (EA/2011/0235) wanted to park his motorbike in Westminster. He asked for “a list of motorcycle parking bays (the addresses where they are located) so that I can plan trips into town.” The Council refused the request, relying on section 21 FOIA (information accessible by other means). It provided a link to the website which contained about 100 pages of images of a list – in a pdf file – of the names of all the streets in the City of Westminster on which motorcycle bays are located. The requester complained that the information was not “accessible” because it did not allow him to search, re-order or edit the data in the list for his own purposes without having to type the data into another file. He argued that the Commissioner has confused accessibility to a document which contains information, with accessibility to the information contained in a document. The Tribunal found, however, that those arguments were premised on the assumption that the Council held the list in the form that he wanted – but it did not; it had outsourced its IT, and the pdf was all it held. It could therefore rely on section 21.

Robin Hopkins

UPDATE ON RECENT TRIBUNAL DECISIONS

Posted on | by Rachel Kamm

The First Tier Tribunal (Information Rights) has had a busy start to 2012, with 7 decisions on its website already.

The first judgment out was Herbert v ICO and West Dorset District Council, EA/2011/0157. The appellant sought correspondence concerning the transfer to the Council of property previously owned by Lyme Regis Borough Council. The Council refused the request on ground that it was vexatious. The history of this case related to incidents and disputes regarding a different matter, between the appellant and the Council dating back to 1992, which culminated in 1996 when the Council revoked a license held by the appellant. The ICO agreed that the request was vexatious. The appellant submitted that he had a genuine interest in the history of Lyme Regis and that he believed that some historical documents were missing from the National Archives and that they had been retained by the Council because they related to illegally acquired property. The Council had previously allowed him to research their archives on another matter and he wished to be able to do so again to look for these missing documents. He said that he had expected the ICO to contact him so that he could put forward further arguments. The FTT agreed with the ICO and the Council that the request had been made under FOIA (and not the EIRs). The FTT set out the key principles that have been applied by Tribunals in considering whether requests were vexatious under s14 FOIA. The FTT considered the background and found that the appellant’s request was obsessive. Further, the request had the effect of harassing the Council (even though the language was not hostile), as allegations of illegality and impropriety were made at the same time as the requests and there was a context of a high volume of correspondence. The Council had made extraordinary efforts to accommodate the appellant’s requests over a considerable period of time and valuable resources of time and effort have been used which could otherwise have been used more productively. In the view of the FTT, to accommodate this request would constitute a further and significant burden on the Council. The FTT concluded that the request was vexatious.

The next decision to be promulgated was King v ICO, EA/2010/0126. The appellant sought from the ICO records of complaints where Crawley Borough Council had failed to comply with FOIA/EIRs and the ICO never served a ‘decision notice’. The ICO refused the request on ground that the information  consisted of ‘third party information’ that was exempt from the requirements of disclosure. It did not identify the exemption relied on for refusing to disclose the information. However, it did provide the appellant with a summary of the information requested. Further information was provided by the ICO in response to the appellant’s request for a review of the decision. The appellant then asked for the information with just the personal details of individuals removed. The ICO refused, citing s.44 FOIA, as exempting information that is prohibited from disclosure under another Act, namely s.59 DPA (which prevents disclosure of information collected in the course of an investigation where there is no lawful authority to do so). The appellant requested  review of this decision. In subsequent correspondence, the ICO  relied on s.40 FOIA (the data protection exemption). The appellant then asked the ICO to make a decision under s.50 FOIA as to whether it had complied with the Act. Having previously been acting in its capacity as a body which was itself subject to FOIA, the ICO then changed back to its normal hat. The ICO said that it was reversing its decision and it provided the appellant with the  letters which had been sent to the Council in the cases alleging non-compliance with FOIA, with personal data redacted. The appellant disputed that this resolved his request; he also wanted the documents from the individuals making complaints and from the Council. The ICO denied that these had been within the scope of his original request. The ICO subsequently issued a decision notice stating that it had provided the appellant with the information requested, but that it had breached FOIA (including by not holding an internal review at the right stage, by not providing the information at the outcome of the internal review and by not acting within the time-scales in the Act). The appellant appealed, arguing that the ICO had not provided all information which fell within the scope of his request, had misinterpreted his request and had breached the duty to provide advice and assistance. In relation to the scope of the request, the FTT criticised the ICO for not having properly analysed the request but found that in fact it had provided all information that fell within the scope of the request. The appeal therefore failed. The FTT also found that the ICO was not in breach of the duty to provide advice and assistance; the appellant argued that the ICO should have asked him to clarify his request, but the FTT found that this was not necessary because the request was in any event clear and adequately specified the information sought. This case very much turned on its facts, but it is interesting to see the application of FOIA to the ICO as a public authority and it is also a useful reminder to carefully read the request from the outset.

The third decision out in 2012 was Newcastle Upon Tyne Hospital NHS Foundation Trust v ICO, EA/2011/0236. This appeal was struck out because the judge considered that there was no reasonable prospect of it succeeding. The disputed information was statistics about the number of people dismissed over a three year period. The Trust refused to provide the information, on ground that it was reasonably accessible (s.21 FOIA) by way of an application in the employment tribunal litigation. The Trust subsequently provided the information voluntarily. The ICO found that the Trust had misapplied s.21 FOIA. The Trust appealed, arguing that “The point at issue is one of prioritising the correct forum by which information is provided. The Trust point is that once proceedings are issued, the correct forum lies within the proceedings that have been issued, in this case the Employment Tribunal“. Not surprisingly, the judge found that this argument had no reasonable prospect of success. FOIA rights are not put on hold if there is litigation between the parties. Further, information obtained under FOIA can be used for any purpose whereas information obtained in litigation can only be used for that purpose and so litigation disclosure is not an answer.

Cross v ICO, EA/2011/025 is also a strike out decision. The appellant sought from Havant Borough Council a building control decision notice, plans and inspection records relating to a loft conversion to his home carried out in 1987. The Council refused the request under the EIRs, on ground that it was not held at the time of receipt of the request. The appellant believed that he had seen these documents on a visit to the Council and that, whilst it was possible that they had subsequently disappeared, his appeal should not be struck out. However, the Council had conducted a six day trawl for the information and the judge found that it was obviously willing to provide the information if it could be found. The appeal was therefore struck out as having no reasonable prospect of success.

Finally, in Martyres v ICO and NHS Cambridgeshire, EA/2011/020, the FTT dismissed an appeal by an appellant who sought all information held by NHS Cambridgeshire (and its relevant community services provider), in respect of her deceased mother who had died on 29 August 2009 including information about the care received by her mother at a care home she was staying at prior to her death. The appellant argued that she was the next of kin, proposed executor and trustee of one of the Wills and had a valid claim against her mother’s estate under the intestacy  rules. In relation to s.41 (FOIA), the FTT found that the information was obtained from another person (social care professionals), it possessed the necessary quality of confidence and disclosure would constitute such an actionable breach of confidence. The FTT further concluded that s.21 FOIA did not apply, in that the appellant would not have been able to obtain the disputed information under the Access to Health Record Act 1980 (as the appellant claimed); whilst she was the nearest relative, she was not the personal representative. The FTT also dismissed the appellant’s arguments under the Human Rights Act 1998.

Rachel Kamm