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City of Bradford PCN Cancellation Criteria
cp8759
post Tue, 21 Jan 2020 - 20:37
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Group: Members
Posts: 16,494
Joined: 3 Dec 2010
Member No.: 42,618



This one has felt a bit like pulling teeth, and not only for me, see the last paragraph in particular:

1. The complainant has requested information relating to policy and
guidance documents and training materials for staff dealing with Penalty
Charge Notices (PCN).

2. The Commissioner’s decision is that City of Bradford Metropolitan
District Council (the council) has incorrectly cited section 43(2) in
response to the request.

3. The Commissioner requires the public authority to take the following
steps to ensure compliance with the legislation.
 Provide the requested information to the complainant ensuring any
personal data is redacted

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 10 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 20 March 2019 and refused to provide the
requested information. It cited section 21 (Information accessible to
applicant by other means) with regard to query 1 and section 43
(Commercial interests) with regard to query 2.

7. The complainant requested an internal review with regard to query 1,
having stated that he was not challenging the application of section 43
to query 2.

8. The council provided its review on 30 April 2019 and revised it position,
stating section 43(2) applied to both parts of the request.

Scope of the case

9. The complainant contacted the Commissioner on 1 May 2019 to
complain about the way his request for information had been handled.
He stated that the information requested in query 1 would only be
available to him if he was in the process of appealing a PCN, which he
was not.

10. The Commissioner attempted to resolve the complaint informally and
contacted the council accordingly. It was her preliminary view that
section 21 did not apply to the information requested in query 1 as it
was only available if making an appeal against a PCN. As the
complainant was not making an appeal he had no access to it.

11. The Commissioner also considered that section 43(2) could not apply to
information that was accessible to members of the public making an
appeal against a PCN.

12. However, the council maintained that section 43(2) did apply, therefore
the scope of this case is to determine if the council has correctly cited
section 43(2) in response to part 1 of the request.

Reasons for decision
Section 43(2) – commercial interests


13. Section 43(2) states that:
‘Information is exempt information if its disclosure under this Act would,
or would be likely to, prejudice the commercial interests of any person
(including the public authority holding it).’

14. In order for a prejudice based exemption, such as section 43(2), to be
engaged the Commissioner considers that three criteria must be met:

 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;

 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 must be real, actual or of substance; and

 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 ‘would’
result in prejudice.

15. In relation to the lower threshold the Commissioner considers that the
chance of prejudice occurring must be more than a hypothetical
possibility; rather there 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 to discharge.

The council’s position

16. The council maintains its decision, that in relation to query 1 of the
complainant’s request the information requested is exempt under
section 43(1) and (2) of the FOIA.

17. It argued that the policy document which sets out the criteria on
whether a PCN should be cancelled is of a commercial value. If it were
to be released it would aid individuals to tailor their response to match
the cancellation criteria when they have parked in contravention. The
council is of the opinion that this provided a real and significant risk that
disclosure would prejudice the commercial interests of the local
authority.

The Commissioner’s position

18. The Commissioner notes that the council has not provided any
arguments in support of section 43(1). It is therefore not clear if it
considers the information to be a ‘trade secret’ and the Commissioner
has not considered this exemption any further.

19. With regard to section 43(2), the council’s response is poor and does not
address the specific questions the Commissioner asked during her
investigation. In addition it applied section 43(2) to the whole document
and did not appear to consider if any of it could be disclosed. The
Commissioner does not consider it is appropriate to use a blanket
exemption.

20. The Commissioner acknowledges that successful appeals will have an
impact on the revenue collected by the council. Therefore, in the interest
of fairness she has reviewed the withheld information to ensure that the
requested information is not a trade secret, or that there would be likely
to be significant prejudice to the council.

21. The council argued that disclosure of the requested information would
enable people to ‘tailor’ their appeals against a PCN. Having reviewed
the withheld information, the Commissioner is not fully persuaded by
this argument, as the parking contraventions described should be known
by anyone with a driving licence.

22. The withheld information describes how an appeal may be successful. It
also describes how employees should handle appeals in terms of
referring to managers and administration procedures. It cannot be
viewed as commercially sensitive.

23. Furthermore, the council has not met the three criteria detailed above.
It has not provided any details of a causal link, neither has it
demonstrated the level of prejudice it considers applicable.Therefore the
Commissioner does not consider section 43(2) is engaged. As such she
has not gone on to consider the public interest.

24. Having viewed the withheld information the Commissioner does
acknowledge it provides some quite detailed information which may
raise legitimate concerns if disclosed . However given the poor response
provided by the council in presenting its arguments for section 43 the
Commissioner considers she cannot reach any other conclusion in this
case.

Other matters
25. The council’s response to the Commissioner falls below the standard
expected. The council should review the guidance on her website
https://ico.org.uk/for-organisations/guidan...on-regulations/ to ensure it is
able to comply with its obligations under the FOIA and that it is fully
prepared to deal with future complaints made to the Commissioner


https://ico.org.uk/media/action-weve-taken/.../fs50840320.pdf

The policy is now in the PCN flaws database linked in the sticky thread at the top of the council forum for anyone who wants to take a look.


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I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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post Tue, 21 Jan 2020 - 20:37
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The Rookie
post Thu, 23 Jan 2020 - 08:01
Post #2


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Group: Members
Posts: 44,067
Joined: 9 Sep 2003
From: Warwickshire
Member No.: 317



Ouch, para 25 is a real slap on the wrist!

Good work.

I note that under the 'Memo' section for recording calls they have to ask if the caller is the 'Registered Owner' of the vehicle, such professionalism, such depth of knowledge. Can they tie their own shoelaces or do they still need Mummy?

This post has been edited by The Rookie: Thu, 23 Jan 2020 - 08:30


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There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!

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