London Borough of Lambeth - Freedom of Information Act 2000 Decision notice Options

[cp8759]

https://ico.org.uk/media/action-weve-taken/.../fs50867388.pdf

Decision (including any steps ordered)

1. The complainant has requested information relating to reconsideration of
Penalty Charge Notices (PCNs).

2. The Commissioner’s decision is that the London Borough of Lambeth
(the Council) is not entitled to rely on section 31 to withhold the
requested information.

3. The Commissioner requires the public authority to take the following
steps to ensure compliance with the legislation.

• Disclose the withheld information.

4. The public authority must take these steps within 35 calendar days of
the date of this decision notice. Failure to comply may result in the
Commissioner making written certification of this fact to the High Court
pursuant to section 54 of the Act and may be dealt with as a contempt
of court.

Request and response

5. On 5 February 2019, the complainant wrote to the Council and
requested information in the following terms:

“Query 1: I would like to request a copy of all policy and guidance
documents that are available to council officers who are tasked with
considering the question of whether a Penalty Charge Notice should be
cancelled. For the avoidance of doubt, this request covers any policy
that is published or otherwise publicly available, plus any internal council
guidance or policy that is only available internally to council staff (such
as any internal policy that outlines in what circumstances the council
may exercise its discretionary powers to cancel a PCN).

Query 2: Please could you also disclose the training material that is
used to train the council officers who make decisions regarding the
cancellation of PCNs. This should cover only training material that is
directly relevant to their role in deciding whether a council PCN should
be cancelled, any other training material (such as generic council
training, health and safety, GDPR or training related to other roles or
functions) is not within the scope of this request.

Again for the avoidance of doubt, both queries above cover policies and
training material available to council officers who deal with informal
representations, formal representations and appeals to the tribunal.”

6. The Council responded on 21 February 2019. It stated the following:

“I can confirm that Lambeth information requests holds the information
you requested. However, we are withholding that information since we
consider that the following exemptions apply to it.
Please see the information which is published via:-
https://www.whatdotheyknow.com/request/lamb...enforcement_pro ”

7. The Council did not cite an exemption on which it was relying.

8. The complainant wrote to the Council on 21 February 2019 and
requested an internal review. He disputed that the information
previously disclosed via the What Do They Know? Website would be
relevant to his request as it was published more than 8 years previously.
He also noted that the internal review of the previous request stated
that the Council was intending to review the training provided to staff.

9. The Council provided its internal review on 19 March 2019 and, despite
not providing any information, simply stated:

“We have provided you with all of the recorded information held with
regards to this request and have nothing further to add.”

Scope of the case

10. The complainant contacted the Commissioner on 21 March 2019 to
complain about the way his request for information had been handled.

11. The Commissioner contacted the Council and set out that despite the
lack of cited exemption, it appeared that the Council was relying on
section 21 as it considered the requested information to be available via
the Whatdotheyknow? Website.

12. The Commissioner invited the Council to review it’s handling of this
request and reconsider whether there is further information held to that
disclosed eight years previously.

13. The Council confirmed to the Commissioner that it had located further
information and that it was relying on section 31(1)(g) with the specified
purpose being section 31(2)(a) to withhold the requested information.

14. The Council provided the Commissioner with its submissions regarding
this exemption.

15. The Commissioner therefore considers that the scope of this
investigation is to determine whether the Council is entitled to rely on
section 31 to withhold the requested information.

Reasons for decision
Section 31: Law Enforcement

16. Section 31(1)(g) state:

“Information which is not exempt information by virtue of section 30 is
exempt information if its disclosure under this Act would, or would be
likely to prejudice –
(g) the exercise by any public authority of its functions for any of the
purposes specified in subsection (2)”

17. The Council confirmed that the specified purposes are sections 31(2)(a):

“(a) the purpose of ascertaining whether any person has failed to
comply with the law”

18. In order for a prejudice based exemption, such as section 31, to be
engaged the Commissioner believes that three criteria must be met:

a. Firstly, the actual harm which the public authority alleges would,
or would be likely to, occur if the withheld information was
disclosed has to relate to the applicable interests within the
relevant exemption;

b. Secondly, the public authority must be able to demonstrate that
some causal relationship exists between the potential disclosure
of the information being withheld and the prejudice which the
exemption is designed to protect. Furthermore, the resultant
prejudice which is alleged to be real, actual or of substance; and

c. Thirdly, it is necessary to establish whether the level of likelihood
of prejudice being relied upon by the public authority is met, ie
disclosure ‘would be likely’ to result in prejudice or disclosure or
‘would’ result in prejudice. In relation to the lower threshold, the
Commissioner considers that the change of prejudice occurring
must be a real and significant risk. With regard to the higher
threshold, in the Commissioner’s view this places a stronger
evidential burden on the public authority. The anticipated
prejudice must be more likely than not.

19. The complainant disputed that section 31(1)(g) was engaged as Local
authorities are required to take The Secretary of State’s Statutory
Guidance to Local Authorities on the Civil Enforcement of Parking
Contraventions into account when creating and publishing information
on enforcement of parking contraventions. This guidance document sets
out that the enforcement authority should have clear policies,
instructions and training on how it exercises this authority. It also sets
out that these policies should be published. In particular, paragraph
10.4 states “Authorities should formulate (with advice from their legal
department) and then publish their policies on the exercise of
discretion”.

20. The complainant provided a list of 39 Local Authorities who published
their policies on parking enforcement. The complainant acknowledged
that whilst this does not bind the Council to publish the same
information, he considers that this suggests that disclosure would not
have the level of prejudice claimed by the Council.

21. The complainant also argued that the Council would not suffer prejudice
to its ability to ascertain whether a person has complied with the law as
when considering whether to use discretion to cancel a PCN, the council
has already decided that the law has not been complied with and is
considering whether to apply discretion in spite of this.

22. The Council explained that disclosure of this information would be likely
to undermine its ability to ensure PCNs are issued fairly.

23. The Council set out that the cancellation policy should only be used by
council parking staff to assist in making decisions in respect of PCN
appeals and representations. It considers that disclosure of this
information may result in manipulation of the PCN representations and
appeals process.

24. The Council explained that the details set out in the cancellation policy
would provide unscrupulous appellants with an opportunity to
manipulate their appeal or representation, in order to match its criteria
for cancelling PCNs and therefore this would undermine the proper
enforcement of parking and traffic offences.

25. The Council confirmed that it was relying on the lower threshold of
prejudice ie “would be likely to”. It considers that disclosure would be
likely to have a prejudicial effect as it would allow individuals to attempt
to avoid parking enforcement.

The Commissioner’s considerations

26. The Commissioner has considered the submissions provided by the
Council and the withheld information in making her decision as well as
the arguments made by the complainant. The Commissioner has also
taken account of the recent First Tier Tribunal decision, EA/2019/0369,
regarding similar information

27. With regard to the first criterion of the three limb test described above,
the Commissioner accepts that the potential prejudice described by the
Council relates to the purpose which the exemptions contained at
section 31(1)(g), with section 31(2)(a) as the specified function, is
designed to protect for some of the withheld information. This is
because one of the functions of the Council includes issuing PCNs in
accordance with the Traffic Management Act and when receiving
representations, the Council’s officers are required to ascertain whether
or not a PCN was issued correctly and therefore whether the recipient
had complied with the law.

28. However, a significant portion of the withheld information relates to
situations where the contravention is not in dispute but the motorist is
requesting leniency in the form of cancellation of the PCN. For this
information, it has already been ascertained that the motorist has not
complied with the law by the officer issuing the PCN. The Commissioner
is not, therefore, persuaded that the prejudice that the Council cites
relates to the function set out in section 31(2)(a) and therefore the
exemption at section 31(1)(g) is not engaged.

29. With regard to the second criterion, the Commissioner is only persuaded
that there is a clear causal link between disclosure of the withheld
information and the prejudice described in relation to a very small
proportion of the withheld information.

30. A significant portion of the information is anodyne and relates to high
level explanations of the legislation and contraventions, relevant caselaw
and technical requirements of reconsidering a PCN. It is not apparent
how this would prejudice the Council’s ability to ascertain whether the
motorist had complied with the law when receiving a PCN.

31. For the small amount of information regarding situations where the
motorist has disputed that they have not complied with the law, the
guidance is clear as to what evidence the officer must obtain to make
this decision. In light of the requirement for evidence, it is not apparent
how disclosure of this information could prejudice the Council’s ability to
ascertain whether the motorist had complied with the law, indeed this
information may aid the Council as motorists would be aware of what
constitutes evidence and may provide this proactively, reducing the
amount of investigation required by the Council’s officers.

32. The Commissioner therefore considers that the Council is not entitled to
rely on section 31(1)(g) with the specified function being section
31(2)(a).

33. The Commissioner notes however that the Council’s arguments appear
to be more relevant to the function set out at section 31(2)(с) the
purpose of ascertaining whether circumstances which would justify
regulatory action in pursuance of any enactment exist or may arise.

34. In the specific circumstances of this case, she has exercised her
discretion to consider whether the Council is entitled to rely on section
31(1)(g) with the specified function being 31(2)(с).

35. The Commissioner accepts that the first criterion of the three limb test is
satisfied as the potential prejudice described by the Council clearly
relates to the purpose set out in section 31(2)(с). This is because one of
the functions of the Council includes issuing PCNs in accordance with the
Traffic Management Act as well as ascertaining which circumstances
allow discretion to cancel a PCN.

36. Consequently the Commissioner is satisfied that any infringement on the
Council’s function to issue, and apply discretion regarding, PCNs could
interfere with its ability to ascertain whether regulatory action is
required in individual circumstances.

37. With regard to the second criterion, the Commissioner is only persuaded
that there is a clear causal link between disclosure of the withheld
information and the prejudice described in relation to a very small
proportion of the withheld information. A significant portion of the
information is anodyne and relates to the procedural element of
reconsidering a PCN.

38. It is not apparent how disclosure would prejudice the Council’s ability to
ascertain whether a request for reconsideration is based on genuine
circumstances. Where the information relates to the ability to apply
discretion, the majority of the situations require evidence to be provided
to the Council and where this evidence is not provided, enforcement of
the PCN is required.

39. In light of the requirement for a motorist to provide this evidence, it is
not apparent how disclosure of the evidence-based criteria could
prejudice the Council’s ability to ascertain whether the reconsideration
should result in a cancellation of the PCN.

40. The withheld information included a small amount of information which
detailed situations in which the Council may apply discretion without an
evidential burden on the motorist. The Commissioner accepts that, with
regards to this information, there is a clear causal link between the
disclosure of the withheld information the Council’s ability to effectively
apply discretion where appropriate. This is because the withheld
information would provide the public with an insight into the specific
circumstances in which the Council is will to exercise discretion.

41. The Commissioner accepts that disclosure of this information could
assist an individual in engineering situations where, following the issue
of a PCN, that could request the Council use discretion to cancel the
PCN. The Commissioner also accepts that this could prejudice the
Council’s ability to decide whether contravention has occurred due to a
genuine mistake on the motorist’s part or whether the request for
discretion is based on the knowledge that the Council is more likely to
accept this situation as a reason for applying discretion.

42. However, with regard to the third criterion, the Commissioner is not
satisfied that the threshold of would be likely has been met. John
Connor Press Associates v Information Commissioner (EA/2005/0005,
25 January 2006), states at paragraph 15:

“We interpret the expression “likely to prejudice as meaning that the
chance of prejudice being suffered should be more than a hypothetical
or remote possibility; there must have been a real and significant risk”.


43. The Commissioner has reviewed the withheld information and considers
that the proportion and restrictive nature of the criteria that could lead
to motorists deliberately parking where they know discretion may be
used is significantly small enough that it is unlikely to have a significant
detrimental effect on the Council’s ability to enforce PCNs.

44. She also considers that it is likely that the Council would be able to take
steps to confirm the veracity of the reasoning given in a reconsideration
request by confirming whether the motorist’s explanation matches the
Council’s knowledge of the area in which the offence took place or by
comparing the reconsiderations with previously received appeals.

45. For the reasons set above, the Commissioner considers that the Council
is not entitled to rely on section 31(1)(g) to withhold the requested
information and therefore she requires the Council to disclose this
information.

Section 17 – Refusal Notice requirements

46. Section 17(1) of the Act states:

“A public authority which, in relation to any request for information, is to
any extent relying on a claim that any provision of Part II relating to the
duty to confirm or deny is relevant to the request or on a claim that
information is exempt information must, within the time for complying
with section 1(1), give the applicant a notice which—
(a) states that fact,
(b) specifies the exemption in question, and
(с) states (if that would not otherwise be apparent) why the exemption
applies.”

47. As set out in paragraph 6 of this notice, the Council stated that the
information was exempt and provided a link to a previous request for
information. However, the Council failed to confirm what exemption it
was relying on and its reasons why.

48. The Commissioner therefore considers that the Council is in breach of
section 17(1) of the Act.

Other matters

49. The Commissioner has concerns regarding the handling of this request
for information.

50. The Council appears to have performed inadequate searches for
information when receiving the request. The Council provided the
complainant with the information disclosed to a previous request made
eight years earlier.

51. In his request for an internal review, the complainant raised concerns
regarding the age of the information and directed the Council to its own
statement that it intended to amend the previously disclosed
information.

52. The Council appears to have performed a superficial internal review,
simply stating that it had provided all information to the complainant,
despite the complainant’s clearly stated concerns regarding the
implausibility of there being no further information held following
disclosure eight years previously.

53. The Commissioner expects the Council to take steps to improve its
searches when receiving requests for information. She also expects the
Council to perform detailed internal reviews which address the concerns
raised by the requester.

54. The above concerns will be logged and used by the Commissioner when
considering the overall compliance of the Council.

55. We will use intelligence gathered from individual cases to inform our
insight and compliance function. This will align with the goal in our draft
Openness by design strategy to improve standards of accountability,
openness and transparency in a digital age. We aim to increase the
impact of FOIA enforcement activity through targeting of systemic noncompliance,
consistent with the approaches set out in our Regulatory Action Policy.