permission to appeal to upper tribunal - redact

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IN THE FIRST-TIER TRIBUNAL

GENERAL REGULATORY CHAMBER

(INFORMATION RIGHTS)

APPEAL: EA/2013/0285

BETWEEN:

Xxxxx Yyyyy

Appellant

and

THE INFORMATION COMMISSIONER

Respondent

APPLICATION FOR PERMISSION TO APPEAL TO UPPER TRIBUNAL

(GROUNDS OF APPEAL)

Documents referred to in these grounds (listed below) are provided separately:

First-tier Tribunals Final Decision ICO Guidance Feb 2009 Do I have to create information to answer a request? ICO Decision Notice FS50070854

Introduction

1. These grounds of appeal are in accordance with paragraph (5)(b) and (5)(c) of rule42 of the Tribunal Procedure (First-tier) (General Regulatory Chamber) Rules

2009.

2. It is deemed that the Tribunal wrongly interpreted the law in regards the CouncilTax (Administration and Enforcement) Regulations 1992 and the Freedom of

Information Act 2000.


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Council Tax (Administration and Enforcement) Regulations 1992

3. It is viewed that the Tribunal has wrongly interpreted the law by stating thatregulation 34(5) of the Council Tax (Administration and Enforcement)

Regulations 1992, does not oblige a council to hold the requested information, see

7, of the Tribunals Final Decision (the FD).

4. Regulation 34(5) lays down the conditions under which the authority must acceptpayment and the application not be proceeded with (see FD,7). Those conditions

are met if there is paid or tendered to the authority an amount equal to the

aggregate of the outstanding balance and a sum of an amount equalto reasonable

costs incurred.

5. In the same way that it is not explicitly stated that the requested information mustbe held, neither is it stated (see FD, 8) that A council may use a standard

estimateof the costs that it reasonably incurs.... The obligation therefore derives

from interpreting regulation 34(5) of which one is submitted below:

i) After a summons has been issued but before the case is heard, the courthas no jurisdiction over the level a council may claim in costs and is of

no consequence whether deemed reasonable by the court (only at the

hearing would the court have power to question them).

ii) The amount paid or tendered to the authority is neither prescribed norcan a standard sum in a legal sense be agreed by the Court. It is

therefore open to the council to accept payment at this stage, being

mindful of the amount tendered as may vary from case to case (see

note).

iii) If an amount was paid or tendered, and the council failed to agree thesum (the court yet has no power), then a council, by virtue of

regulation 34(5) must be obliged to support its claim in order to justify

the sum is less than costs reasonably incurred.

iv) Proceeding with the application once an amount has been paid ortendered would be breaching regulation 34(5), as it clearly states:


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the authority shall accept the amount and the application shall

not be proceeded with

Note: The circumstances of the case were explicitly stated in the request for

information.

Freedom of Information Act 2000

6. In regards the question arising as to whether the information would be deemedheld (on account that it would need compiling) the Tribunal has agreed with the

ICOs Response (see FD,9) in so much as:

if it involves the proposition that information is held from which the costs

identified in the request could be calculated...this was not the information

requested and that any arithmetical calculation would disregard the fact that

costs reasonably incurred vary from case to case since they are not confined

to court fees.

7. Section 8(1) of the Freedom of Information Act 2000 (the FOIA) sets out thatany reference in the Act to a request for information is a reference to such a

request which (c) describes the information requested.

8. Pursuant to section 84 FOIA (Interpretation), information means informationrecorded in any form

9. It is therefore reasonable that the requested information, described as it was,should not have been subject to the rigidity of being viewed invalid by virtue of

the fact that it was necessary to aggregate the component parts.

10. The request described exactly at which point of recovery the costs were incurred;the Appellants Reply noted the automated process meaning costs specific to the

case would be limited principally to court fees (3) and amounts in respect of

postage, stationary and printing.


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11. The FOIA covers any recorded information that is held by a public authority;however, it does not have to create new information to respond to requests. It may

well then be argued that by having to compile information from elements it holds,

the requested information is not held as it considers this to be creating new

information for which there is no obligation.

12. Guidance notes (Do I have to create information to answer a request?) werepublished in February 2009 by the ICO as part of a series to help public authorities

understand their obligations and to promote good practice. The guidance states

that:

A public authority is not creating new information where:

it presents information it holds in the form of a list or schedule; compiling an answer to a request involves simple manual

manipulation of information held in files; or,

it extracts information from an electronic database by searching itin the form of a query.

13. The guidance makes reference to an ICO Decision Notice (FS50070854) inexplaining the difference between extracting or compiling existing information

and creating new information. The example sought to establish that compiling

information (from separate records for example), that although it may be a new

task, it is not creating new information.

14. The Commissioner required the public authority to provide information in theform of a schedule. The public authority (see 27, FS50070854) "argued that it is

under no obligation to provide such information. It says that if it were to accede to

this request it would, in effect, be required to create new information and that

there is no obligation on public bodies under the Act to do that"

15. This view was not accept by the Commissioner and in response, stated at 28 ofthe Decision Notice:

The information already exists: the public authority cannot be said to be

creating it. And, while producing a list of the documents in which the


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relevant information is contained may be a new task, it is not creating new

information; it is simply a re-presentation of existing information as a by-

product of responding to the information request.

16. The guidance then deals with a hypothetical case where the requested informationis not held by an authority in a discrete form, but data (from which it is necessary

to calculate a total, for example) exists in individual and separate records.

Though the calculation has not already been done, it was considered if involving

simply retrieving and compiling information from original sources it would not

normally amount to the creation of new information. The guidance notes then

state:

What amounts to a simple rather than a complex calculation depends on

the level of skill and judgement required to carry out the task. If extracting

the information relevant to the request requires a high level of skill and

judgement, this would amount to creating new information not already

held.

17. In order for the information to be disclosed, it would require the Council to carryout a simple rather than a complex calculation. The complexity of costs varying

from case to case (see FD,9) does not arise, because boundaries were laid down

in the request removing them. For example, difficult to quantify elements are of

no relevance which account for the length of time council staff need to be engaged

with debtors agreeing or setting up payment arrangements, monitoring payment

arrangements, telephone communications or written correspondence.

18. However, since the request, the Council has produced what may be considered acomplex calculation (see APPENDIX A). This ultimately shows the costs as an

average, taking the recovery element from the total Collection and Recovery

budget, divided by the number of summonses issued. The calculation has regard to

the difficult to quantify elements, as is evident from the Council Tax activity

levels section of the calculation that assesses costs quantified from the time

engaged with debtors arising from issuing summonses.


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19. One would expect that if an in-depth calculation that accounts for all expenditureconnected with recovery has been possible, a much simpler one, as would be

required to answer the request under appeal, could be produced from information

held separately. Section 11 FOIA requires a public authority to provide

information in the manner requested if this is reasonably practicable.

12 June 2014


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ANNEX A

2012/13

011

0187

0184

&

869,463 647,578 716,076 2,233,117

84,000

( )

.

.

84,000 84,000

.

.40,000 40,000

59,309

(50%

) 25,148

( )

54,800 54,800

124,483 124,483

( ) 484,551 484,551

(80%) 572,861 572,861

/

/ (30%) 140,488 140,488

(

) 260,912 327,806 143,215 731,933

30% 51% 20% 33% ( 5%

) 36,597

65,337

2012/13 ,36

2012/13 74.00


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869,463

84,000

40,000

745,463

30% 223,639 223,639

70% / / 521,824 260,912 260,912

484,551 260,12

/ ( 12/13 ) 33,100

( ) 9,396

23,704 56%

. ,

18,792 44%

42,496

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