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IN THE MATTER OF AN APPEAL TO THE FIRST-TIER TRIBUNAL

(INFORMATION RIGHTS) UNDER SECTION 57 OF THE FREEDOM OF

INFORMATION ACT 2000

Appeal No. EA/2013/0285

BETWEEN:

Xxxx Yyyyy

Appellant

-and-

THE INFORMATION COMMISSIONER

Respondent

RESPONSE TO NOTICE OF APPEAL

ON BEHALF OF THE RESPONDENT

I. INTRODUCTION

1. This Response is served pursuant to rule 23 of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009.

2. The Respondent (the Commissioner) respectfully submits that the Appellants Notice of Appeal dated 30 December 2013 should be dismissed for the reasons given in the Commissioners Decision Notice dated 16 December 2013 (reference FS50505226) and further elaborated in this Response.

3. The Commissioner agrees with the Appellant that this appeal is suitable for determination on the papers.

II. BACKGROUND

4. This appeal relates to a FOIA request made by the appellant to North East Lincolnshire Council (NELC) on 2 May 2013 in relation to the costs of issuing a summons in respect of council tax.

5. The Appellants request was in the following terms:

With reference to regulation 34(5) of SI 1992/613

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In circumstances where payment is made in accordance with (5)(a) and (b) on the day of issue,

What cost the council have incurred in respect of the issue of that summons.

Either;

in actual pounds and pence

-or-

as percentage of overall costs incurred in respect of an application where the liability order is obtained

Note: The authority will have accepted payment and the application halted, therefore no costs can be included in respect of agreeing or setting-up payment arrangements, monitoring payment arrangements, telephone communications or correspondence entered into outside those already triggered.

6. On 14 May 2013, NELC responded to the Appellant, stating that it did not hold the requested information. At the same time NELC informed the Appellant that the costs applied for the issue of a Council tax summons is 70.00.

7. On 15 May 2013, the Appellant requested an internal review of NELC's handling of his FOIA request, referring to a business need and a legal obligation for the council to hold a breakdown of costs as the person having to pay them should be afforded a right to know how they were determined.

8. On 13 June 2013, NELC informed the Appellant of the outcome of the internal review which had been requested. NELC confirmed that it did not hold the requested information.

9. Following certain further exchanges between the Appellant and NELC in relation to the Appellant's FOIA request, the Appellant submitted a complaint to the Commissioner on 26 June 2013. The Commissioner subsequently communicated with both the Appellant and NELC prior to issuing the DN. In particular, on 18 October 2013, the Commissioner asked a number of questions of NELC in relation to its

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handling of the Appellant's FOIA request. On 12 November 2013, NELC answered each of those questions.

10. On 16 December 2013, the Commissioner issued a Decision Notice (the DN) in relation to the Appellants complaint. In the DN, the Commissioner found that on the balance of probabilities, the requested information was not held by NELC (as had been NELC's position throughout) and that, accordingly, there had been no breach of section 1 of FOIA in NELC's treatment of the Appellants request.

11. For the avoidance of doubt, this Response adopts the findings in the DN in their entirety. The detailed findings in the DN are reiterated below to the extent necessary to respond to the Appellants grounds of appeal.

III. THE NOTICE OF APPEAL

12. The defendant appealed against the DN in a Notice of Appeal (the "NoA") dated 30 December 2013. The Defendant understands the grounds of appeal to be (in summary) as follows:

(1) The Appellant contends that there is a business/legal requirement for NELC to hold the requested information (NoA, paras. 6(i) and 7 21);

(2) Irrespective of any such requirement, the Appellant contends that NELC does, in fact, hold certain expenditure data as well as data relating to the number of summons which are actually issued. It appears to be the Appellant's case that, on this basis, NELC did hold of relevant data necessary to facilitate disclosure of the requested information (NoA, paras. 6(ii) and 22 26);

(3) The Commissioner is also alleged to have failed to take into account certain amended government guidance in his consideration of the Appellant's complaint (NoA, paras. 6(iii) and 27 32); and

(4) Finally, the Appellant takes issue with NELCs claim that it was unaware of certain government guidance at the time of responding to the Appellants request (NoA, paras. 6(iv) and 33).

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IV. LEGAL FRAMEWORK

13. So far as is material, section 1 FOIA provides (emphasis added):

"1(1) Any person making a request for information to a public authority is entitled

(a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and

(b) if that is the case, to have that information communicated to him. ...

(4) The information

(a) in respect of which the applicant is to be informed under subsection (1)(a), or

(b) which is to be communicated under subsection (1)(b),

is the information in question held at the time when the request is received, except that account may be taken of any amendment or deletion made between that time and the time when the information is to be communicated under subsection (1)(b), being an amendment or deletion that would have been made regardless of the receipt of the request.

14. Accordingly, public authorities are obliged under section 1(1)(a) FOIA to confirm or deny whether they hold information that is the subject of a request. If they do not hold the information in question, then no duty to communicate that information to the party requesting it arises under section 1(1)(b) FOIA.

15. Where a requesting party complains to the Commissioner on the basis that a public authority has wrongly denied that it holds requested information, the Commissioner's task is to determine whether the public authority does, in fact, hold that information.

16. Then nature of that task and the standard of proof to be applied by the Commissioner are set out by the Tribunal in the well-known decision in Bromley & Others v IC & the Environment Agency (EA/2006/0072) [2011] 1 Info LR 1273, at [13]:

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There can seldom be absolute certainty that information relevant to a request does not remain undiscovered somewhere within a public authority's records. This is particularly the case with a large national organisation like the Environment Agency, whose records are inevitably spread across a number of departments in different locations. The Environment Agency properly conceded that it could not be certain that it holds no more information. However, it argued (and was supported in the argument by the Information Commissioner) that the test to be applied was not certainty but the balance of probabilities. This is the normal standard of proof and clearly applies to Appeals before this Tribunal in which the Information Commissioner's findings of fact are reviewed. We think that its application requires us to consider a number of factors including the quality of the public authority's initial analysis of the request, the scope of the search that it decided to make on the basis of that analysis and the rigour and efficiency with which the search was then conducted. Other matters may affect our assessment at each stage, including, for example, the discovery of materials elsewhere whose existence or content point to the existence of further information within the public authority which had not been brought to light. Our task is to decide, on the basis of our review of all of these factors, whether the public authority is likely to be holding relevant information beyond that which has already been disclosed. (emphasis added)

17. Bromley has been followed in a number of other cases (see e.g. paragraph 35 of Reed v Information Commissioner and FCO (EA/2008/0095)).

18. Accordingly, the Commissioner's task in relation to the Appellants underlining complaint was to determine, on the balance of probabilities, whether NELC held the requested information.

19. Importantly, this is not a case in which the Appellant complained about the scope, rigour or efficiency of NELC's search for the requested information. Indeed, NELC did not carry out any search at all, because it apprehended (without the need for any search) that it simply did not hold the requested information. Accordingly, the only matter with which the Tribunal need concern itself is with the Commissioner's

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determination that NELC did not, on the balance of probabilities, hold the requested information.

V. THE COMMISSIONERS SUBMISSIONS ON THE APPEAL

20. In short, the Commissioner remains satisfied that, on the balance of probabilities, the requested information by the Appellant was not held by NELC. As recorded in the DN, the Commissioner carefully scrutinised NELC's claim that it did not hold the requested information, including by reference to whether there was any legal requirement or business need for NELC to hold it. The NoA provides no basis at all for the Tribunal to question the Commissioner's conclusion on this point.

21. The Commissioner responds below to the individual grounds of appeal raised by the appellant.

The first ground of appeal

22. The first ground of appeal is characterised (NoA, para. 6(i)) by reference to an alleged business/legal requirement for NELC to hold the requested information.

23. It is apparent (from NoA, paras. 7 21) that the essence of the first ground of appeal is an alleged legal obligation on NELC to hold the requested information which is said to arise from the provisions of the Council Tax (Administration and Enforcement) Regulations 1992, as elaborated by certain guidance from the Department of Communities and Local Government ("DCLG").

24. This ground of appeal is misconceived.

25. Crucially, this ground of appeal is wholly directed at establishing that NELC had a legal requirement to hold the requested information. However, the existence or otherwise of such a requirement is not determinative of the issue which the Commissioner had to decide in the DN, namely whether NELC did, on the balance of probabilities, in fact hold the requested information. The mere existence of some form of obligation to hold specific information does not mean that that information is actually held. The first ground of appeal appears to elide these two logically separate issues.

26. It is true that existence of a business need or legal requirement to hold particular information may be evidentially relevant to the Commissioner's determination of

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whether, on the balance of probabilities, that information was held. Thus, if there are statutory duties or practical reasons to hold the information the Commissioner will need more evidence to convince him that it is not held. 1 In that regard, when investigating the complaint, the Commissioner quite properly enquired whether there was any legal requirement or business need on the part of NELC to hold the requested information (see DN, para. 15). On the basis of NELC's explanations, the Commissioner was nonetheless satisfied, on the balance of probabilities, that the requested information was not held by NELC (DN, para. 20).

27. In that regard, the Commissioner had regard to NELCs explanations that:

(1) The DCLG guidance referred to by the Appellant (NoA, para. 18), which states that local authorities should be able to provide a breakdown of the costs of court summons on request, was only published on 17 June 2013 (i.e. after the initial response to the Appellants request and after the internal review procedure) and, in any event, that documentation is merely guidance and does not entail a legal obligation to hold the information requested (DN, para. 16);

(2) The legislative provisions referred to by the Appellant, specifically regulation 34(5) of the Council Tax (Administration and Enforcement) Regulations 1992 (the Regulations), provide that public authorities shall not proceed with summonses for unpaid council tax if there is paid/tendered to the authority both the outstanding sum and a sum equal to the costs reasonably incurred by the authority in connection with the application up to the time of the payment or tender [of the outstanding council tax payment]. However, neither this provision, nor any other statutory provisions, provides any obligation on local councils to hold information enabling them to provide a breakdown of those reasonable costs (DN, paras. 17, 19).

28. Importantly, the Commissioner accepted NELC's explanation that the actual costs incurred in connection with council tax summons would vary in each individual case, but that NELC does not have the necessary resources to calculate costs on a case by case basis, but rather sets a prescribed cost which is applied to all cases (DN, para. 18). The appellant does not even attempt, in the NoA, to call this explanation into question.

1 See the ICO publication Determining whether information is held (Ref: 201330515, Version 2.0), para.59.

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29. The Appellant does refer, extensively, to an apparent discrepancy arising from the fact that NELC applies a charge of 70 in respect of the costs of pursuing unpaid council tax by way of a summons, with the same charge being applied irrespective of whether the liability is settled prior to or after instigation of court proceedings (NoA, paras. 17, 20 21). The problem, on the Appellant's view, is that it does not make sense for NELC to apply the same costs to the former situation, in circumstances where the latter situation involves the additional costs of prosecuting the summons in court. However, even assuming there is some discrepancy, the Appellant does not explain why any such discrepancy must mean that NELC held the requested information. Rather, at most, this is a complaint that NELC has failed to limit the sum charged in respect of the cost of pursuing unpaid council tax by way of a summons to the costs reasonably incurred in doing so. That is patently not an issue which is relevant under FOIA, and not an issue which the Tribunal is competent to determine in the present appeal.

30. The Tribunal is also invited to consider the fact that the Appellant has previously made a similar information request of NELC which was the subject of a decision of the Commissioner of 13 February 2012 (reference FS50400874), in which the Commissioner similarly accepted NELC's explanation as to why it did not hold the requested information. In striking out the Appellant's appeal against this earlier decision, the Tribunal considered that:

the Tribunals powers are limited to determining, in relation to this appeal, whether the requested information is held and whether it should be provided. It has no standing to determine what the council 'should' hold and how it should act. (That is unless that is evidence to support an argument that on the balance of probabilities the Council did in fact hold the information which the Appellant has not argued, and it is difficult to see how he could argue in this case).2

31. In the Commissioners respectful observation, the precise problem identified here by the Tribunal in relation to the Appellants earlier appeal is fatal to his first ground of appeal in the present case. Again, the Appellant has merely referred to statutory

2 See paragraph 15 of the Appendix to the Order of Judge Taylor dated 27 April 2012 striking out the

Appellants appeal in case EA/2012/0050.

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provisions and government guidance which he considers oblige NELC to hold the relevant information, but has offered no argument to demonstrate that it did, in fact, hold it. Accordingly, the Commissioner does not consider that the first ground of appeal provides any reason to depart from his conclusions in the DN.

The second ground of appeal

32. Unlike the first ground of appeal, the second ground of appeal does specifically contend that NELC held certain information, namely expenditure data relating to magistrates court fees and data on the total number of council tax summonses issued. The Appellant appears to contend that this data would be sufficient for NELC to calculate the costs referred to in his request and then communicate them to the Appellant, the implication presumably being (although it is not expressly stated) that NELCs failure to do so was a breach of its obligations under section 1 FOIA.

33. This ground of appeal is, again, misconceived.

34. First, and fundamentally, the information referred to in this ground of appeal is not what the Appellant actually requested. As set out at paragraph 5 above, the Appellant requested the costs incurred in the issue of a summons in circumstances where the relevant outstanding council tax payment is made on the day of issue of the summons question, and made no reference to the specific data referred to in the second ground of appeal. If the Appellant wished to see the data referred to in the second ground of appeal, he was perfectly entitled to ask for it, and that request would then have had to be considered by NELC under FOIA in the ordinary manner. He did not do so.

35. Second, this ground of appeal ignores NELCs description (recorded at para.17 of the DN) of the nature of the costs incurred in seeking recovery of unpaid council tax by issue of a summons. The cost items referred to go beyond the cost of the magistrates' court fees which the Appellant appears to consider to be the only relevant expenditure on NELC's part in relation to issuing summonses (NoA, para. 25). Moreover, again, the second ground of appeal offers no reason to doubt NELC's explanation that it does not have the resources to calculate the cost of pursuing unpaid council tax on a case-by-case basis, but rather sets a standard charge in respect of costs in all such cases. Again, if the Appellant is aggrieved by the level of the standard charge imposed

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in this respect, an appeal under FOIA is simply the wrong forum in which to air that grievance.

The third ground of appeal

36. The third ground of appeal appears to derive from a perceived failure, on the Commissioners part, to take into account the complete version of paragraph 3.4 of the updated DCLG guidance referred to at paragraph 11 of the DN. On the Appellant's case, his original complaint to the Commissioner on 26 June 2013 quoted a version of paragraph 3.4 of the DCLG guidance which was subsequently further updated on or around 29 July 2013, thus omitting to refer to the text of the updated version which states that courts may wish to be satisfied that amounts claimed by way of costs in individual council tax summons cases are no more than the costs reasonably incurred by the authority in question. The Appellant notes that he sent the updated version of paragraph 3.4 of the Guidance to the Commissioner under cover of an email of 18 October 2013 (NoA, para. 31).

37. This ground of appeal cannot succeed because:

(1) The allegations that the Commissioner failed to consider the full version of paragraph 3.4 in the DN is unsupported by the taxt of the DN. Paragraph 11 of the DN merely quotes from the Appellant's original complaint which, on the

Appellant's own case (see NoA, para. 26) did not refer to the full version of paragraph 3.4 of the DCLG guidance. Accordingly, the fact that the Commissioner does not quote the full version of paragraph 3.4 of the DCLG guidance in paragraph 11 of the DN does not demonstrate that the Commissioner did not consider it.

(2) In any event, the Commissioner plainly considered the effect of the Regulations to which paragraph 3.4 of the DCLG guidance relates, including the obligation for costs imposed in respect of council tax summonses to be limited to costs reasonably incurred (see DN, para. 17), and did not consider that this was probative of the fact that NELC held the information requested. It is difficult to see why a failure to refer to the full text of paragraph 3.4 of the DCLG guidance (which merely states a possible consequence of the provisions of the Regulation) could possibly have made

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any difference to the conclusion. The Commissioner also considered, and was satisfied with, NELCs explanation that the relevant DCLG guidance was merely guidance and did not entail any legal obligation to hold the information requested (DN, para. 16). Again, the updated text of paragraph 3.4 does not provide any reason to suggest that it is anything other than guidance.

(3) Further, and as in relation to the first two grounds of appeal, the very most that this ground of appeal could establish is that NELC was obliged to hold the information in question. Even if it was so obliged, this does not determine the relevant issue under FOIA, viz. the factual question of whether the information was in fac held. In that regard, again, the Appellant offers no argument as to why the Tribunal should depart from the Commissioner's conclusions on that point, in particular in light of the explanation at paragraph

18 of the DN that NELC simply did not have the resources to calculate the costs incurred on a case-by-case basis

38. In the circumstances, the third ground of appeal provides no good basis for the Tribunal to overturn the Commissioner's decision.

The fourth ground of appeal

39. The fourth and final ground of appeal is directed at NELC's statement, recorded at paragraph 16 of the DN, that at the time of its response to the Appellant's request and the subsequent internal review response, the DCLG guidance had not been published. The Appellant's case is that NELC should have been aware of an obligation to be able to support costs in any individual cost as long ago as 9 March 2012, apparently a date on which an earlier iteration of the publication was emailed to NELC, containing the reference to the fact that the court may wish to be satisfied that costs in individual cases are reasonably incurred (DN, para. 33).

40. The Commissioner notes that it is not clear whether the fourth ground of appeal alleges any error on the part of the Commissioner himself in the DN. If the allegation is that NELC wrongly informed the Commissioner that it was unaware the DCLG guidance at the time of the request/internal review procedure, then it is not clear why this would constitute an error on the part of the Commissioner, in circumstances

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where the Commissioner did refer to the DCLG guidance and nonetheless came to the conclusion that, on the balance of probabilities, the information requested was not held at the relevant time. The precise time at which NELC became aware of the guidance is wholly irrelevant to the Commissioner's determination of that question, since the Commissioner was aware of the guidance at the time of the DN, as well as NELC's views on the effect of the guidance, and nonetheless concluded that the requested information was not held.

41. Accordingly, to the extent that the fourth ground of appeal purports to identify an error in the DN, it is misconceived, and the Tribunal is respectfully invited to reject it.

VI. CONCLUSION

42. For the reasons given in this response and in the DN, the Commissioner respectfully submits that the appeal should be dismissed in its entirety. The appellant has failed to show any error in the Commissioners determination, on the balance of probabilities, that the requested information was not held by the NELC.

MICHAEL ARMITAGE MONCKTON CHAMBERS

Dated this 4 February 2014

Adam Sowerbutts Solicitor For and on behalf of the Information Commissioner

Name and address of Respondent / Address for service:- Adam Sowerbutts Information Commissioners Office Wycliffe House Water Lane Wilmslow SK9 5AF Email: adam.sowerbutts@ico.org.uk