PePiPoo Helping the motorist get justice

Welcome Guest ( Log In | Register )

 
Reply to this topicStart new topic
Royal Borough of Kingston upon Thames - Freedom of Information Act 2000 Decision Notice
cp8759
post Sun, 26 Jul 2020 - 21:17
Post #1


Member


Group: Members
Posts: 21,187
Joined: 3 Dec 2010
Member No.: 42,618



https://ico.org.uk/media/action-weve-taken/.../fs50847772.pdf

Decision (including any steps ordered)

1. The complainant has requested information related to Penalty Charge
Notices (PCNs).

2. The Council relied on sections 31(1)(g) and 43(2) to withhold the
requested information.

3. The Commissioner’s decision is that the Royal Borough of Kingston Upon
Thames (the Council) is not entitled to rely on either section 31(1)(g) or
section 43(2) to withhold the requested information.

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

• Disclose the requested information

5. 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

6. On 11 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
cancellations 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.


7. On or before the 12 March 2019, the Council provided its response. It
confirmed that it was withholding the requested information and was
relying on section 31 to do so. The Council did not provide its reasons
for doing so and did not provide any public interest considerations.

8. The complainant wrote to the Council on 12 March 2019 and requested
an internal review of the handling of the request for information. The
complainant cited section 17(1)1 and requested an explanation
regarding why the Council considers that the exemption applies. He also
confirmed that the Council had not provided the outcome of its public
interest considerations, in accordance with section 17(3)2 of the Act.

9. On 2 July 2019, the Council provided the outcome of its internal review.
The Council acknowledged its failure to comply with section 17(1) and
(3) and confirmed that the issue had been raised with its contractors.
The internal review upheld the original decision to rely on section
31(1)(g) and explained that it considered the release of the requested
information would lead to an increased number of ‘false’ representations
and challenges. The Council explained that if it were to provide the
requested information, an individual would have knowledge of the
criteria to be met when challenging contraventions. The Council further
explained that if this information was publicly available, it would be
likely to lead to challenges misrepresenting the facts and worded in line
with its policies in an attempt to have a legitimate PCN cancelled. The
Council stated that this would prevent it applying a fair, equitable and
consistent approach when assessing PCN challenges.

10. The Council did not provide details of a public interest consideration.

Scope of the case

11. The complainant contacted the Commissioner on 4 July 2019 to
complain about the way his request for information had been handled.

12. During the course of the investigation, the Council introduced section
31(1)(с) in relation to Query 1 and section 43(2) to the information
falling within the scope of Query 2.

13. The Commissioner considers that the scope of this investigation is to
determine whether the Council is entitled to rely on sections 31(1)(с),
31(1)(g) and 43(2) to withhold the requested information.

14. The Commissioner will also consider whether the Council handled the
request in accordance with the procedural requirements of the Act.

Reasons for decision
Section 31: Law Enforcement


15. Section 31(1)(с) & (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 –
(с) the administration of justice,
(g) the exercise by any public authority of its functions for any of the
purposes specified in subsection (2)


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

(a) the purpose of ascertaining whether any person has failed to
comply with the law”
“(с) the purpose of ascertaining whether circumstances which would
justify regulatory action in pursuance of any enactment exist or may
arise


17. In order for a prejudice based exemption, such as section 31, to be
engaged the Commissioner believes 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 to 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 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.

18. 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”.

19. The complainant considers that the Council has taken an overly broad
approach to the exemption and has not considered whether the
information could be disclosed with redactions.

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, however, he considers that this suggests that disclosure
would not have the level of prejudice claimed by the Council.

21. The Council explained that the adjudication of a request to cancel a PCN
would be carried out either by personnel acting on behalf of the Council
or, in rare cases, by the officer who issued the PCN.

22. The Council explained that it has objective criteria that it follows when
considering a request for cancellation and that is what is set out in the
policy and guidance documents that the complainant has requested
under Query 1. The Council gave the example that if a motorist received
a PCN for overstaying the time allowed in a particular parking bay and
requested cancellation, the motorist would be required to give an
explanation. The Council explained that the policy and guidance
documents set out guidelines for considering the reasons given.

23. The Council disputed the complainant’s arguments that the statutory
guidance on Civil Enforcement of Parking Contraventions obliges the
Council to publish the requested information. It set out that the
guidance does not make publication of this information mandatory,
section 87 of the Traffic Management Act 2004 requires local authorities
to “have regard” to the guidance, but nothing further.

24. The Council confirmed that it did publish information in line with the
statutory guidance and provided a linkю

25. The Council confirmed that disclosure would be likely to prejudice the
functions set out in section 31(2)(a) & (с).

The Commissioner’s considerations

26. The Commissioner has considered the submissions provided by the
Council and the complainant as well as reviewing the withheld
information. She has also considered the recent decision by the First
Tier Tribunal, EA/2019/0369, regarding similar information.

27. The Commissioner is disappointed at the quality of the submissions
provided. She expects public authorities to provide detailed submissions
setting out why it considers an exemption is engaged and evidence the
prejudice that would occur. In this case, the Council has simply stated
that knowledge of the guidance would be likely to prejudice the Council.

28. With regard to the first criterion of the three limb test described above,
the Commissioner accepts that the potential prejudice described by the
Council clearly relates to the purpose which the exemptions contained at
sections 31(2)(a) & © are designed to protect. 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. Consequently, the Commissioner is
satisfied that any infringement on the Council’s function to issue, and
apply discretion to, PCNs could interfere with its ability to ascertain
whether regulatory action is required in individual circumstances.

29. With regard to the second criterion, the Commissioner is only persuaded
that there is a clear causal link between disclosure of a very small
proportion of the withheld information and the prejudice described. A
significant proportion of the information is anodyne and relates to the
procedural element of reconsidering a PCN, it is not apparent how this
would prejudice the Council’s ability to ascertain whether a
reconsideration is genuine. The majority of the information relates to the
evidence required by the Council and decisions that can be made when
provided with such evidence.

30. 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.

31. The Commissioner therefore considers that sections 31(1)(с) or 31(1)(g)
are not engaged in relation to this part of the information.

32. 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 causal link between the disclosure
of the withheld information and 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 situations in
which the Council is willing to exercise discretion. The Commissioner
accepts that disclosure of this information could assist an individual in
engineering situations where, following the issue of a PCN, they 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 a 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.

33. 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
”.

34. The Commissioner has reviewed the withheld information and considers
that the proportion of 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. 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.

35. For this reason, the Commissioner is not persuaded that sections
31(1)(с) or 31(1)(g) are engaged in relation to the information held in
scope of both requests.

36. The Commissioner requires the Council to disclose the withheld
information within the scope of “Query 1”.

Section 43: Commercial Interests

37. 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)
”.

38. As set out above, in order for a prejudice based exemption to be
engaged, the Commissioner considers that three criteria must be met.

39. The Council confirmed that it was relying on section 43(2) in relation to
the information within the scope of “Query 2” ie the training material
provided to officers performing PCN reconsiderations.

40. The Council explained that the requested information consists of training
material produced for the Council by its contractor or in consultation
with its contractor.

41. It therefore considers that it contains the results of the skills, expertise
and intellectual efforts of that organisation in providing a training regime
for use by the Council and those engaged by it to consider PCN
cancellations.

42. The Council explained that the training materials manifest the skill and
expertise of the authors acting for the contractor and provide the
contractor with a valuable asset that can be marketed to its benefit. The
Council considers that if the results of their activities were in the public
domain, then competitors could access them and make free use of their
efforts. The Council considers that the work of a commercial
organisation that is the result of its own labours and is exploited in the
market should remain so far as is practicable its own “property”.

43. The Council confirmed that it considers that disclosure would be likely to
prejudice the commercial interests of the contractor.

44. It also provided an email from the contractor confirming that it agreed
with the Council’s position.

The Commissioner’s position

45. With regards to the first criterion of the prejudice test set out above, the
Commissioner is satisfied that the prejudice described by the Council,
namely that the contractor’s competitors could use its training material
and market it to other councils, clearly relates to the interests which the
exemption contained at section 43(2) is designed to protect.

46. With regards to the second criterion, the Commissioner can understand
the rationale of the Council’s argument that if it disclosed information
created by the third party provider, it could undermine the provider’s
market position by allowing its competitors access to the materials the
provider has expended resources to create. On this basis, the
Commissioner accepts that there is a causal link between disclosure of
the withheld information and the prejudice to the third party provider’s
commercial interests.

47. With regards to the third criterion, the Commissioner has considered the
content of the withheld information and she notes that while it may have
been produced by, or in conjunction with, the third party provider, it
comprises guidance and matrices of how to apply the Council’s policies
regarding PCNs. The Commissioner is therefore less persuaded that
information relating to a specific Council’s PCN enforcement policy would
be useful to a competitor. Should the competitor seek to use the
information to provide a service to a different council, this would be
ineffective as it is applying an incorrect policy.

48. The Commissioner also notes that numerous Councils proactively publish
their PCN guidance and matrices and, having reviewed the withheld
information, the Commissioner is unable to distinguish how it represents
a unique piece of work in comparison. The major differences across the
local government documents appears to be the policies themselves.

49. This leads the Commissioner to question how genuinely prejudicial
disclosure of the withheld information would be to the third party
provider.

50. For the above reasons, the Commissioner is not persuaded that
disclosure of the withheld information would be genuinely prejudicial
given that it is specific to the implementation of the Council’s policy.
Therefore, although the Commissioner accepts that there is, in theory,
some risk in prejudicing the third party provider’s commercial interests
by disclosing documents it has created, in relation to the re-use of this
information by a competitor, she is not persuaded that this more than a
hypothetical possibility.

51. The Commissioner therefore considers that section 43(2) is not
engaged. She requires the Council to disclose the information requested
in “Query 2”.

Procedural matters

52. 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) states (if that would not otherwise be apparent) why the
exemption applies.


53. Section 17(3) states of the Act states:

A public authority which, in relation to any request for information, is to
any extent relying on a claim that subsection (1)(b) or (2)(b) of section
2 applies must, either in the notice under subsection (1) or in a separate
notice given within such time as is reasonable in the circumstances,
state the reasons for claiming –

(b) that, in all the circumstances of the case, the public interest in
maintaining the exemption outweighs the public interest in disclosing
the information.


54. As set out above in the “Request and Response” section of this notice,
the Council did not provide the complainant with its reasons for relying
on section 31(1)(g) in its original refusal notice and did not provide any
consideration of the balance of the public interest.

55. At internal review, the Council acknowledged that the refusal notice was
not in accordance with section 17(1) and 17(3) and provided a brief
reasoning for why it considered the information was exempt under
section 31. However, it did not provide any details of its public interest
considerations.

56. The Commissioner therefore finds that the Council has breached both
section 17(1) and section 17(3) in relation to this request.

Other matters

57. The Commissioner is highly concerned regarding the handling of this
request for information. The Council did not provide an adequate refusal
notice breaching section 17(1) and 17(3). The Commissioner also notes
that the internal review took more than 40 working days to complete
and the Council stated that this was due to confusion with another
request for information. The Commissioner would expect a public
authority to have systems in place to track specific requests and their
progress. The Commissioner also notes that the complainant chased the
outcome of his internal review on 10 May 2019, the Commissioner would
expect a public authority to look into the reasons for an internal review
being chased and acknowledge this to the requester.

58. During the course of the investigation, the Commissioner was required
to issue an Information Notice as the Council failed to meet two
deadlines for its submissions.

59. The Commissioner considers that the submissions provided are of very
low quality and would expect a council of the size of the Royal Borough
of Kingston Upon Thames to know what level of detail the Commissioner
requires when conducting an investigation. The Commissioner’s letters
to public authorities make clear that she will provide one opportunity to
put forward arguments before proceeding to decision notice. She also
asks public authorities to use the time before a complaint is allocated to
one of her officers to “have thoroughly reviewed its handling of the
request and to ensure that it is fully prepared and ready to provide its
final, detailed submissions to the Commissioner” [original emphasis].

60. She also notes that when corresponding with the contractor to obtain its
opinion on disclosure of the requested information, the Council provided
the contractor with the name of the requester. It is not apparent why
this was necessary as the Act is motive and applicant blind and the
identity of the requester is not relevant to the considerations of the
contractor. The Commissioner expects the Council the review its
procedures for consulting with third parties to ensure that it is not
unnecessarily sharing personal data.

61. The above concerns will be logged and used by the Commissioner when
considering whether further regulatory action is required.

62. 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.



For anyone interested, the associated Information Notice is available here: https://ico.org.uk/media/action-weve-taken/.../fs50847772.pdf

This post has been edited by cp8759: Sun, 26 Jul 2020 - 21:28


--------------------
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.
Go to the top of the page
 
+Quote Post

Reply to this topicStart new topic
1 User(s) are reading this topic (1 Guests and 0 Anonymous Users)
0 Members:

 



Advertisement

Advertise here!

RSS Lo-Fi Version Time is now: Wednesday, 25th November 2020 - 07:30
Pepipoo uses cookies. You can find details of the cookies we use here along with links to information on how to manage them.
Please click the button to accept our cookies and hide this message. We’ll also assume that you’re happy to accept them if you continue to use the site.