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Steve Davies, Chief Executive

Steve Davies, Chief Executive. 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” CLG Costing and Charging Guidance. Information Commissioner.

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Steve Davies, Chief Executive

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  1. Steve Davies, Chief Executive

  2. 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” • CLG Costing and Charging Guidance

  3. Information Commissioner • When is a charge 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’ • ICO Charging Guidance 26/1/2009

  4. Information Commissioner • The majority of the information … in response to property search enquiries is likely to be environmental information as defined by the EIR. • The charging provisions in the CPSR do not apply to environmental information. • Under the EIR a public authority should accept an applicant’s request to inspect the information. • ICO Guidance 16/7/2009

  5. Information Commissioner • Environmental information that is inspected by the applicant cannot be charged for. • Public authorities cannot use the publication scheme provisions of the FOIA to charge for environmental information contained in property search records. • Information that is not environmental should be considered under the FOIA. In such cases, the CPSR can form the basis for any charging. • ICO Guidance 16/7/2009

  6. Information Commissioner • “Overall, we consider that the majority of the information contained in property records held by local authorities is likely to be environmental as defined in the EIR. Consequently, local authorities should adopt this as a working assumption …..” • ICO Guidance 16/7/2009

  7. Information Commissioner • “we consider that a public authority should allow the inspection of the environmental information contained in property search records where this is requested. In such cases, as the requested information is inspected ‘in situ’, no charge can be made” • ICO Guidance 16/7/2009

  8. Information Commissioner • “an authority cannot circumvent the provisions of the EIR and seek to make a CPSR charge on the basis that this is permitted under the publication scheme ” • ICO Guidance 16/7/2009

  9. Information Commissioner • To request environmental information, you must contact the relevant authority directly. There are no restrictions on how you make the request. • You can make your request in writing, over the phone or in person. However, it is most helpful to make the request in writing so that you and the authority have an accurate record of the request. • You can make a request to any member of the authority’s staff. • You do not have to give your name, contact details, or any reason for wanting the information. • ICO Environmental information: a guide for requesters 16/7/2009

  10. Information Commissioner • You don’t need to know whether information is environmental to make a request to a public authority. You can make a request for information that is a mixture of environmental and other information. The authority should work out which law applies and let you know. • ICO Environmental information: a guide for requesters 16/7/2009

  11. Information Commissioner • In order to offer advice and assistance to an applicant, is it legitimate to enquire into the reasons why the request has been made? • No. The purpose of providing advice and assistance is to help an applicant to exercise their rights under the EIR; it cannot be the means by which a public authority seeks to discover the reasons for a particular, or potential, application. • ICO Advice and assistance: FAQ 11/9/2008

  12. ICO Decision Notices • Stoke • East Riding • Liverpool • Tendring • Knowsley • Maldon • Castle Point • Copies on the ICO website. www.ico.gov.uk

  13. ICO Decision Notices • Stoke – Building Control and Highways • In the Commissioner’s view, an authority cannot …. refuse a request to inspect information because the information is available by following the standard land search procedures…. • the charging as embodied in the CPSR acts as a barrier to the information being easily accessible in contrast to, for example, publication on a website or in a public library free of charge. • Copies on the ICO website. www.ico.gov.uk

  14. ICO Decision Notices • East Riding – Building Control, Highways and Traffic • the Commissioner is satisfied that the complainants are entitled to exercise their right to inspect the information free of charge… is not dependant on all the information being available in one location. If this were so applicants making requests which capture a broad range of information which was held across a range of different business areas within a public authority would be disadvantaged. • Copies on the ICO website. www.ico.gov.uk

  15. ICO Decision Notices • East Riding • The Commissioner would also comment that as it could have been anticipated that requests for this type of information would be made in the future it would have been sensible for the public authority to consider what arrangements could practically be made to facilitate the inspection of such information in one location. • Copies on the ICO website. www.ico.gov.uk

  16. ICO Decision Notices • Liverpool Building Control 1.1 f,g,h • The Commissioner does not agree that the property search information fits with the definition of “information provided on a commercial basis” and that the charge “is necessary to ensure the information is collected and published”. This type of scenarios refers to trading funds such as the Ordinance Survey or bodies such as the Met Office, where the information generation and publication is clearly a commercial activity • Copies on the ICO website. www.ico.gov.uk

  17. ICO Decision Notices • Liverpool • The Commissioner’s decision is that the public authority did not deal with the request for information in accordance with the EIR. The Council breached the requirements of Regulation 5(1) and Regulation 6(1) as it failed to make the requested information available for inspection on request, without charging a fee. • The Commissioner does not consider that he has the power to order a refund but recommend that the Council does so. It is open to the complainant to take further steps to recover the fees charged • Copies on the ICO website. www.ico.gov.uk

  18. ICO Decision Notices • Tendring – 1.1 f, g, h, 3.8 and compulsory purchase • The Commissioner concludes that the information in the present case is information commonly provided in the form of Yes/No answers on the CON29R form and is sufficiently similar to case FER0236058 to justify the same conclusion being reached in it, namely that the requested information is environmental and should be made available to view free of charge. • However, the authority failed to state clearly the regulation or exception it was relying upon, simply referring to a fee for each property search as per The Local Authorities (England) (Charges for Property Searches) Regulations 2008. It also failed to inform the complainant of their rights of appeal • Copies on the ICO website. www.ico.gov.uk

  19. ICO Decision Notices • Tendring • The Commissioner requires the public authority to take the following steps to ensure compliance with the EIR: - Allow the complainant to inspect the information requested free of charge • Copies on the ICO website. www.ico.gov.uk

  20. ICO Decision Notices • Knowsley – LLCR and all Con 29 information • The Commissioner is therefore of the opinion that the complainant is entitled to exercise his right to inspect information free of charge. • The Commissioner’s decision is that Knowsley Metropolitan Borough Council did not deal with the request for information in accordance with the EIR. The Council has breached the requirements of regulations 5(1) and 6(1) of the EIR as it failed to make the requested information available for inspection on request • Copies on the ICO website. www.ico.gov.uk

  21. ICO Decision Notices • Knowsley – LLCR and all Con 29 information • It was the Council’s opinion that the fact a fee was payable for these methods of accessing the information did not mean the information was any less available. In the Commissioner’s view, however, the criteria of information being publicly available and easily accessible is not satisfied when an applicant is required to pay a fee. This is because charging acts as a barrier to the information being easily accessible in contrast to, for example, publication on a website or in a public library free of charge. • Copies on the ICO website. www.ico.gov.uk

  22. ICO Decision Notices • Maldon - Building Control Information • The Commissioner concludes that the information in the present case is information commonly provided in the form of yes/no answers on the CON29R form and is sufficiently similar to case FER0236058 to justify the same conclusion being reached in it. • The Council breached the requirements of regulation 5(1) and 6(1) as it failed to make the requested information available for inspection on request. • Copies on the ICO website. www.ico.gov.uk

  23. ICO Decision Notices • Castle Point – Building Control Information • The Commissioner concludes that the information in the present case is information commonly provided in the form of Yes/No answers on the CON29R form and is sufficiently similar to case FER0236058 to justify the same conclusion being reached in it, namely that the requested information is environmental and should be made available to view free of charge. • Copies on the ICO website. www.ico.gov.uk

  24. ICO Decision Notices • Castle Point – Building Control Information • The Commissioner requires the public authority to take the following steps to ensure compliance with the EIR: - Allow the complainant to inspect the information requested free of charge. • Castle Point have now sent out a letter confirming that they will provide the information free of charge within 20 working days • I have asked them for clarification of the timescale • Copies on the ICO website. www.ico.gov.uk

  25. ICO Decision Notices • FER0236058 = East Riding – Tribunal 26/7 January • The Commissioner concludes that the information in the present case is information commonly provided in the form of Yes/No answers on the CON29R form and is sufficiently similar to case FER0236058 to justify the same conclusion being reached in it, namely that the requested information is environmental and should be made available to view free of charge. • The ICO have attempted to make East Riding a test case even though the tribunal has said it is not a test case • Copies on the ICO website. www.ico.gov.uk

  26. ICO Decision Notices • Back to Liverpool • The public authority states that there may be restrictions imposed on further reuse and that this issue is regulated by the Office of Public Sector Information (OPSI). The Commissioner cannot comment on re-use charging and would recommend the public authority contacts OPSI for guidance on this issue. • We understand LGA has not had the response it wanted from OPSI on this issue.

  27. ICO Decision Notices • Failure to Comply Statement • Failure to comply with the steps described above may result in the Commissioner making written certification of this fact to the High Court (or the Court of Session in Scotland) pursuant to section 54 of the Act and may be dealt with as a contempt of court. • Copies on the ICO website. www.ico.gov.uk

  28. Information Tribunal • Received Tuesday • We have decided that the Information Commissioner was right to decide that East Riding of Yorkshire Council (“the Council”) should have made available for inspection, without charge, certain information on the impact of building regulations and traffic/highways control on a particular property.

  29. Information Tribunal • It may be that in other cases involving the same broad subject matter a public authority will be able to demonstrate that its decision to refuse inspection was based on a well thought out and fairly applied policy, which achieved a reasonable balance between the requirement to make environmental information generally available and other legitimate factors. • This means it is not a test case

  30. Information Tribunal • My view • Any Local Authority refusing inspection would have to demonstrate they had a well thought out and fairly applied policy. • There are no other legitimate factors identified within the EIR, therefore the only reasonable policy would be to allow inspection as soon as possible

  31. Information Tribunal • An appeal against this decision may be submitted to the Upper Tribunal. A person seeking permission to appeal must make a written application to the Tribunal for permission to appeal within 28 days of receipt of this decision. Such an application must identify the error or errors of law in the decision and state the result the party is seeking.

  32. IPSA Meeting with CLG • “We’re in a Mess” • Denis Purshouse CLG 9/2/2010

  33. IPSA Meeting with CLG • “The Charging Regulations are redundant in respect of Personal Searches” • Len Britton CLG 9/2/2010

  34. IPSA Meeting with CLG • “IPSA supplied a legal opinion, which CLG ignored” • SD and CL - 9/2/2010

  35. 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

  36. 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

  37. IPSA Meeting with CLG • “We took guidance from DEFRA” • Len Britton CLG 9/2/2010

  38. IPSA Meeting with CLG • “You can inform your members of our position” • Denis Purshouse CLG 9/2/2010

  39. CLG • IPSA have requested a clear statement • LGA have requested a clear statement • “The Treasury are now involved”

  40. 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

  41. 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……

  42. Thank You

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