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Steve Davies, Chief Executive

Steve Davies, Chief Executive. Questions. The Council won’t let me view the records anymore, Do I have to pay for all their answers? Do I have to buy a Con29? Can the Authority ‘bundle’ popular information with unpopular information? What records am I entitled to view?

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Steve Davies, Chief Executive

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  1. Steve Davies, Chief Executive

  2. Questions • The Council won’t let me view the records anymore, Do I have to pay for all their answers? Do I have to buy a Con29? • Can the Authority ‘bundle’ popular information with unpopular information? • What records am I entitled to view? • What happens after the 6th April? • How can I compete?/Will I still have a business?

  3. Charges Regulations 2008 • Interpretation • 2.—(1) In these Regulations, “access to property records” means access to property records granted by a local authority in any of the following ways— • (a) allowing a person to inspect or search property records at a place designated by the authority for doing so; • (b) allowing the making of or providing copies of, property records; or • (c) the electronic transmission of property records, or copies of such records,

  4. Charges Regulations 2008 • Interpretation • “property records”— • (a) includes documents, registers, files and archives (held in any form by the local authority), which relate to a property; • (b) includes information derived from such documents, registers, files and archives; but • (c) excludes the local land charges register kept under section 3(2) of the Local Land Charges Act 1975(a)

  5. Charges Regulations 2008 • Transparency in relation to setting of charges • 9.—(1) During each financial year, a local authority must publish a statement setting out— • (a) the estimates the local authority has made under regulation 6(2) (estimates of total costs and estimates of numbers of requests) in respect of the unit charge for the following financial year; • (b) the basis for those estimates; and • (c) the amount of the unit charge it proposes for the following financial year.

  6. Charges Regulations 2008 • (2) Regulations 5 and 8 (charges) do not apply— • (b) in respect of access to free statutory information, except to the extent that a local authority is providing a service……..

  7. Charges Regulations 2008 • “free statutory information” means information required to be provided by a local authority under an enactment, where that enactment expressly— • (a) prohibits a local authority from making a charge for doing so; or • (b) requires that the authority provides the information free of charge;

  8. Charges Regulations 2008 “The Local Authorities (Charges for Property Searches) Regulations 2008 have no effect on the operation of the EIR and are designed to complement it”

  9. EIR 2004 SI 2004 No. 3391 FREEDOM OF INFORMATION ENVIRONMENTAL PROTECTION The Environmental Information Regulations 2004 Made 21st December 2004 Coming into force 1st January 2005

  10. EIR 2004 • Dissemination of environmental information • 4.- (1) Subject to paragraph (3), a public authority shall in respect of environmental information that it holds – • (a) progressively make the information available to the public by electronic means which are easily accessible; and • (b) take reasonable steps to organize the information relevant to its functions with a view to the active and systematic dissemination to the public of the information.

  11. EIR 2004 • Duty to make available environmental information on request • 5. - (1) Subject to ………. a public authority that holds environmental information shall make it available on request. • (2) Information shall be made available under paragraph (1) as soon as possible and no later than 20 working days after the date of receipt of the request.

  12. EIR 2004 • 8. - (2) A public authority shall not make any charge for allowing an applicant – • (a) to access any public registers or lists of environmental information held by the public authority; or • (b) to examine the information requested at the place which the public authority makes available for that examination.

  13. EIR Code of Practice • The Secretary of State, after consulting the Information Commissioner, issues the following Code of Practice pursuant to Regulation 16 of the Environmental Information Regulations 2004. • Laid before Parliament February 2005 pursuant to Regulation 16 of the Environmental Information Regulations. • Secretary of State – Margaret Beckett!

  14. EIR Code – Training Duty • All communications to a public authority……. potentially amount to a request for information within the meaning of the EIR, and…… they must be dealt with in accordance with the provisions of the EIR. It is therefore essential that everyone working in a public authority who deals with correspondence, or who otherwise may be required to provide information, is familiar with the requirements of the EIR and this Code ……. and takes account of any relevant guidance on good practice issued by the Commissioner. Authorities should also ensure that proper training is provided.

  15. EIR Code – Dissemination Duty • Under Regulation 4, a public authority has a duty to progressively make the information available to the public by electronic means which are easily accessible, and to take reasonable steps to organize information relevant to its functions with a view to active and systematic dissemination. • Consideration should be given to making web sites accessible to all and simple to use, so that information can be readily found, for example by enabling search functions and having an alphabetical directory as well as tree structures. Information should not be ‘buried’ on a site.

  16. EIR Code – Dissemination Duty • Public authorities should consider how to publicise applicants’ rights to information, for example as part of general information on services provided by the authority. • When public authorities are considering what information to disseminate proactively, they should not restrict themselves to the minimum requirements as listed in the Directive. For example, consideration should be given to disseminating frequently requested information, which will reduce individual requests for such information in the future.

  17. EIR Code – Advice & Assistance Duty • Every public authority should be ready to provide advice and assistance………….. This advice and assistance should be available to those who propose to make, or have made requests and help them to make good use of the Regulations. • Staff in public authorities in contact with the public should bear in mind that not everyone will be aware of the EIR or the FOIA and they should draw the legislation to the attention of potential applicants who appear unaware of them. Any question which cannot be dealt with on the spot should be treated as a request for information.

  18. EIR Code – Advice & Assistance Duty • Public Authorities should be aware of the dangers of over bureaucratising procedures when responding to requests for routine information.

  19. EIR Code – Timeliness Duty • Public authorities are required to comply with all requests for information as soon as possible and they must not delay responding until the end of the 20 working day period under Regulation 5(2)(b) if the information could reasonably have been provided earlier. • It is of critical importance for the body receiving a request to identify the request for environmental information in the first instance, and then to meet the timetable……

  20. EIR Code - Charging • ….. if they are providing access to a public register, or if the applicant examines the information at the offices of the public authority or in a drop in library or other place which the public authority makes available for that examination, access to the information shall be free of charge.

  21. EIR Code of Practice • If a public authority fails in its statutory duty, the Commissioner may issue a decision notice under section 50, or an enforcement notice under section 52 of the FOIA.

  22. ICO Charging Guidance Jan 2009 – Charging Prohibited • Regulation 8(2) specifies that no charge can be made for accessing public registers or lists of environmental information or for examining the information requested at the place which the authority makes available for that purpose.

  23. ICO Charging Guidance Jan 2009 – Charging Prohibited • Regulation 8(2) sets out two circumstances in which no charge can be made: • (a) Access to public registers or lists of environmental information • (b) Inspection of the information ‘in situ’

  24. ICO Charging Guidance Jan 2009 - Charging • if an applicant subsequently requires a copy of the information, the authority can charge the cost of providing the information in a permanent form, for example the cost of photocopying : • an authority must satisfy itself that a charge is reasonable. It must do this by only taking into account relevant considerations and ignoring any irrelevant ones.

  25. ICO Charging Guidance Jan 2009 - Charging • for example, the cost of paper and printing is a relevant factor and can be included in the charge. However, the cost of staff time in identifying, locating and retrieving the information is an irrelevant factor and cannot be included • In determining the actual costs of photocopying, relevant considerations will include the number and size of the sheets to be copied and the lease charge on the photocopying machine.

  26. DEFRA Guidance • GUIDING PRINCIPLES ON HOW TO DECIDE IF THE INFORMATION REQUESTED IS ENVIRONMENTAL INFORMATION • 1. If you can release the information there is no need to decide whether it is environmental or not – just provide the information. • DEFRA 17/07/2006

  27. Legal Opinion • “a request for information which was a request for environmental information would be subject to the EI Regs 2004 which prohibits an authority charging anyone to access any public register.” • John Litton (Barrister) 9/3/2007 • Opinion sought by CLG

  28. Legal Opinion • “what constitutes environmental information is to be broadly interpreted and applied, having regard in particular to the case law of the European Court of Justice” • James Goudie QC 24/5/2007

  29. Legal Opinion • “In my opinion, most, possibly all, the information required to complete Con 29 Part 1 is Environmental Information” • “where the information is Environmental Information, the local authority is obliged to provide access to it free of charge” • Peter Mc Master QC 5/7/2007

  30. Legal Opinion • In response to the charging consultation • “The public access legislation restricts the way in which charges can be made for access to the information in question in ways that are likely to render unworkable any attempt to impose local cost recovery generally” • Peter Mc Master QC 2/4/2008

  31. Legal Opinion • “It is therefore simply not open to local authorities to charge generally for access on a local cost recovery basis: their hands are tied by the EIR. Much of the information has to be provided free and where a charge can be made, the basis of charging is the statutory basis set out in the Act and the charging is subject to review by the Information Tribunal” • Peter Mc Master QC 2/4/2008 • Unchallenged expert legal opinion

  32. Environmental Information ICO – What is Environmental Information • measures (including administrative measures) which affect or protect elements and factors (including land and buildings, roads, railway, noise, emissions)

  33. Environmental Information ICO – What is Environmental Information • (a) the state of the elements of the environment, such as* air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements;

  34. Environmental Information ICO – What is Environmental Information • Land – land was described in the guidance for the 1992 EIR as: all land surfaces, buildings, land covered by water, and underground strata1. By including underground strata the implication is that land covers natural minerals and deposits such as salt, coal, limestone, slate, iron etc.

  35. Environmental Information ICO – What is Environmental Information • Built structures – …buildings in a general sense are included as part of the definition of land as an element. Built structures allows a focus on particular buildings specifically, as well as other infrastructure. This could include railway lines, pylons, fences, bridges, canals, roads, phone masts, tunnels. Other built structures may include cars, trains, planes, boats, ships, etc. The definition does not specifically refer to human-built structures and therefore it is not unreasonable to suppose that bird’s nests, wasp’s nests and rabbit warrens, for example, will also qualify as built structures.

  36. Environmental Information ICO – What is Environmental Information • (b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a);

  37. Environmental Information ICO – What is Environmental Information • (c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in (a) and (b) as well as measures or activities designed to protect those elements;

  38. Environmental Information IPSA contends therefore that Search Data is clearly Environmental Information as search data concerns measures affecting or likely to affect elements and factors in (a) and/or (b).

  39. Timeliness The EIR allow requests to be made in any form. Requests have to be complied with ‘as soon as possible’. • There is maximum of 20 working days for complying, but that does not qualify the requirement to comply as soon as possible.

  40. Timeliness • If a local authority attempted to delay ……… by reference to the 20 day period and the information apart from the EIR would have been provided on the spot, the authority will probably be acting unlawfully. • because it is possible to supply the information on the spot that is the soonest possible method of providing access to the information.

  41. Con 29 p1 - What is EI? • Q1.1 – Planning & building regulations (a) – (e) (ICO – Markinson Tribunal)(f) – (h) next slide Q1.2 – Planning designations & proposalsNot an issue

  42. Building Control • Q1.1 – f – Approvals. Plans (measures) affecting or protecting buildings (factors) and/or energy, noise (elements) • Q1.1 – g – completion certificates. Evidence that the measures affecting or protecting the factors and/or elements have been carried out • Q1.1 – h – certificate or notice - self certification – register - Evidence that the measures affecting or protecting the factors and/or elements have been carried out • Q3.8 – Contravention of building regulations(proceedings) Proceedings are steps taken (measures) to affect or protect factors and elements

  43. Con 29 p1 - What is EI? • Q2 – Roads (a) List of Adopted Streets(b) – (d) Measures affecting or protecting Factors and/or Elements

  44. Con 29 p1 - What is EI? • Q3.1 – Land required for public purposesMeasures affecting or protecting factors and/or elements • Q3.2 – Land to be acquired for road worksMeasures affecting or protecting factors and/or elements • Q3.3 – Drainage agreements & consentsMeasures affecting or protecting factors and/or elements

  45. Con 29 p1 - What is EI? • Q3.4 – (a) – (f) Nearby road schemesMeasures affecting or protecting factors and/or elements • Q3.5 – Nearby railway schemes Measures affecting or protecting factors and/or elements • Q3.6 – Traffic schemesMeasures affecting or protecting factors and/or elements • Q3.7 – Outstanding notices Measures affecting or protecting factors and/or elements

  46. Con 29 p1 - What is EI? • Q3.8 – Contravention of building regulations – already discussed • Q3.9 – Notices, orders, etc under Planning Acts – ICO/Markinson • Q3.10 – Conservation Areas – Planning – ICO/Markinson • Q3.11 – Compulsory purchase Measures affecting or protecting factors and/or elements • Q3.12 – Contaminated land – EI No Argument • Q3.13 – Radon gas – EI No Argument

  47. Traffic Schemes • (a) Permanent stopping up or diversion • If implemented, this will have an effect on the noise levels at the property and the emissions. • (b) Waiting or loading restrictions • Among other things, such restrictions improve access in and around areas of high traffic by reducing the congestion caused by excessive parking. Reductions in congestion and allowing traffic flow result in fewer emissions. 

  48. Traffic Schemes • (c) One way driving • There are a number of reasons for having one way driving. This can lead to a reduction in noise and emissions but can also encourage greater speeds as there is no fear of traffic in the other direction, thus increasing emissions. In any event there is an effect on any adjacent land and buildings by virtue of changes in noise and emissions. • (d) Prohibition of driving (e) Pedestrianisation • Either of these measures would have an effect on noise and/or emissions.

  49. Traffic Schemes • (f) Vehicle width or weight restriction • Primarily designed to prevent large vehicles using particular roads and to that extent will have a significant impact on noise and/or emissions. • (g) Traffic calming works including road humps • Generally designed to reduce speeds which will have an impact on noise and/or emissions. • (h) Residents’ parking controls • Have an effect on congestion in the area and an effect on noise and emissions.

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