EA/2012/0254 IN THE MATTER OF AN APPEAL TO THE (FIRST-TIER) TRIBUNAL GENERAL REGULATORY CHAMBER (INFORMATION RIGHTS) BETWEEN: XXXX XXXXXX

Appellant -andTHE INFORMATION COMMISSIONER Respondent

INFORMATION COMMISSIONERS RESPONSE AND APPLICATION TO STRIKE OUT APPEAL

Introduction 1. This is an appeal under section 57 of the Freedom of Information Act 2000 (FOIA) against a Decision Notice FS50443807 issued by the Commissioner on 22 November 2012. The Commissioner serves this response to the appeal in accordance with rule 23 of the Tribunal Procedure (First-tier) (General Regulatory Chamber) Rules 2009 (the Rules).

2.

For the reasons given below, the Commissioner opposes the appeal.

Application to strike out 3. The Commissioner invites the Tribunal to strike out the appeal under rule 8(3)(c) of the Rules on the grounds that it has no reasonable prospect of success.

Factual background 4. This appeal concerns a request made by the Appellant to North East Lincolnshire Council (the Council) on 8 January 2012. For the purposes of the Decision Notice, and thus this appeal, the relevant information requested was as follows

Between financial years 2006 and 2011; Please supply the number of North East Lincolnshire residents who have incurred the Header H fee, as a result of the council or its agents levying a council tax debt, where goods had not been physically removed? Please categorise the number into; a) The number of residents incurring the fee, and b) The number of residents who paid the fee.

5.

The Council replied on 10 January 2012 informing the Appellant that it did not hold the information requested. The Appellant requested an internal review, insisting that the Council did hold the requested information. The Council responded on 12 January 2012 confirming that it did not hold the information requested although suggested that it may be held by its bailiffs, Rossendales.

6.

On 12 January 2012 the Appellant wrote to the Council stating that it was wholly responsible for its enforcement agents Rossendales and should have a record of all activity relating to them. The Council wrote to the Appellant on 19 January 2012 restating its views that it did not hold the information requested. therefore complained to the Commissioner. The Appellant

7.

In the course of the Commissioners investigation, the Council advised his office that having reconsidered the matter it accepted that it did in fact hold information

requested. The Council wrote to the Appellant on 14 August 2012 confirming this. However, it estimated that the costs of compliance with the request would exceed the appropriate limit under section 12 FOIA.

8.

On 14 August 2012 the Appellant wrote to the Council requesting an internal review of its decision to rely on section 12 FOIA. The Council replied on 7 September 2012. Whilst apologising for its initial mistake in claiming that the requested information was not held, the internal review upheld the decision that compliance would exceed the appropriate cost limit.

Relevant law

9.

Under section 1(1) FOIA a person who has made a request to a public authority for information is, subject to other provisions of FOIA: (a) entitled to be informed in writing whether it holds the information requested, and (b) if it does, to have that information communicated to him. This is subject to, among other provisions, the exemptions in Part II of FOIA.

10.

Section 12 FOIA provides a cost-ceiling for compliance with a request for information. When the estimated cost of compliance rises above the ceiling the public authoritys obligations under section 1 to comply with a request for information are dis-applied. Section 12 provides as follows:

12 Exemption where cost of compliance exceeds appropriate limit (1) Section 1(1) does not oblige a public authority to comply with a request for information if the authority estimates that the cost of complying with the request would exceed the appropriate limit. (2) Subsection (1) does not exempt the public authority from its obligation to comply with paragraph (a) of section 1(1) unless the estimated cost of complying with that paragraph alone would exceed the appropriate limit. (3) In subsections (1) and (2) the appropriate limit means such amount as may be prescribed, and different amounts may be prescribed in relation to different cases.

(5) The Secretary of State may by regulations make provision for the purposes of this section as to the costs to be estimated and as to the manner in which they are to be estimated. 11. The regulations referred to in section 12(5) are the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004. They prescribe the appropriate limit for the purposes of section 12 as 450 for a public authority such as the Council (regulation 3). Applying the nominal hourly rate in regulation 4(4) means that 450 represents 18 hours of the Councils time. 12. Regulation 4(3) provides an exhaustive list of the matters which a public authority may take into account in reaching its cost estimate. It provides as follows: (3) In a case in which this regulation has effect, a public authority may, for the purpose of its estimate, take account only of the costs it reasonably expects to incur in relation to the request in (a) determining whether it holds the information, (b) locating the information, or a document which may contain the information, (c) retrieving the information, or a document which may contain the information, and (d) extracting the information from a document containing it. 13. The estimate made by the public authority must be a reasonable one [which] may only be based on the activities covered by Regulation 4(3) (Roberts v Information Commissioner EA/2008/0050 at 9). What is reasonable is something for the Commissioner and the Tribunal to determine on a case-by-case basis (ibid). It does not require a precise calculation, but it must be sensible, realistic, and supported by cogent evidence (Randall v Information Commissioner EA/2007/0004). The Decision Notice 14. In his Decision Notice the Commissioner upheld the Councils refusal of the Appellants request under section 12 FOIA. His reasons for reaching this decision are set out in detail at 12-24 of the Decision Notice and are not repeated here. In addition, a copy of the explanation provided by the Council on which the Commissioner based his decision is provided to the Tribunal and Appellant with this Response. 15. In brief the Council explained that 31,823 accounts would need to be checked in order to locate and retrieve the information requested. Having carried out a sampling

exercise based on the quickest method identified of retrieving the information, the Council estimated that it would take approximately 3 minutes to check each account. This amounted to 1591 hours (or 39,775 at 25 per hour). substantially above the appropriate limit. 16. The appropriate limit would be exceeded by a considerable margin even if the exercise were to be carried out in relation to a single year. In relation to 2011/12, which was the year with the fewest accounts, 4583 accounts would still need to be checked. This would amount to 229 hours (or 5725 at 25 per hour). This is clearly

The grounds of appeal 17. The Appellant contends that Rossendales would hold the information he has requested and he relies on information he referred to the ICOs case officer prior to the Decision Notice being issued namely; what appears to be an extract from the Councils Contract Procedure Rules; section 3 FOIA, section 5 FOIA, and paragraph 54 of the Government Response to the Justice Committees Report: Post-legislative scrutiny of the Freedom of Information Act 2000. 18. However, all of the above matters referred to by the Appellant relate to the issue of whether information is held by a public authority or on behalf of a public authority for the purposes of FOIA. Whilst the Council initially refused the Appellants request on the grounds that it did not hold the information, by the time of the Decision Notice that was no longer the case: the Council accepted that it held the information but claimed that compliance with the request would exceed the appropriate costs limit under section 12 FOIA. The matters relied on by the Appellant are simply of no relevance at all to the question of whether compliance with his request would exceed the appropriate cost limit under section 12 FOIA. 19. The Appellant says that there wasnt anything on the [Decision] notice explaining why the authority maintained for seven months that it did not hold the information when it in fact did. It is submitted that there is no requirement for a Decision Notice to require any such explanation. In any event, as is explained in the Decision Notice, the Council reviewed its position on being contacted by the Commissioner about the Appellants complaint. The Council accepted that it was mistaken in originally
5

claiming that it did not hold the information requested and informed the Appellant accordingly. The Commissioner noted in the Decision Notice that the Council had changed its position and that the Appellant had emphasised his dissatisfaction at this situation (see 15 DN). 12 FOIA applied. 20. It is submitted that the Councils estimate of the cost of compliance with the Appellants request is sensible, realistic, and supported by cogent evidence. That estimate massively exceeds the appropriate limit of 450 or 18 hours. Nothing in the Appellants grounds of appeal addresses, far less undermines, the Commissioners finding that section 12 FOIA applies in this case. Conclusion 21. It is submitted that the Appellant has not provided any grounds of appeal which are capable of disturbing the Commissioners conclusion that section 12 FOIA had been applied appropriately in this particular case. Accordingly, the Tribunal is invited to strike out the appeal under rule 8(3)(c) of the Rules on the grounds it has no prospects of succeeding. However, the question then to be determined by the Commissioner in his Decision Notice (and now by this Tribunal) was whether section

25 January 2013