PLC Public Sector reports:
Following the recent Upper Tribunal decision finding against Kirklees Council, it is unlikely that the Information Commissioner will feature on many local authority Christmas card lists (to the extent that such things exist in these austere times). However, although the Upper Tribunal held that the Environmental Information Regulations 2004 (EIR) do allow for the inspections of property search information free of charge, there has always been a question about whether the EIR regime could provide the basis for a viable personal search company operation.
A recent decision notice issued by the Information Commissioner adds weight to the argument that it will not and may mean that he starts to creep back on to some Christmas card lists.
A request was made on 25 August 2010 to Walsall Metropolitan Borough Council to inspect the information necessary for the completion of the CON 29R form “as soon as possible”. The council ultimately made the information available for inspection on 16 September 2010. This was well within the statutory 20 working day time limit, however, had the requester been willing to meet the council’s applicable charges for its enhanced property search service, the responses to the CON 29R form would have been provided within 3 working days.
The requester complained to the Information Commissioner claiming that the EIR require a response “as soon as possible” and that the 20 working day time limit is a long-stop. The fact that the information could be made available within 3 working days meant that the council had not dealt with his request as soon as possible and therefore had failed to comply with the EIR.
The council argued that:
- It was entitled to have different processes in place to deal with requests made under the EIR and the Freedom of Information Act 2000 to those in place for its enhanced property search service.
- It was entitled to prioritise requests made under the enhanced property search service as the resources used to do so were paid for by the charges that it made for that service (in accordance with the Local Authorities (England) (Charges for Property Searches) Regulations 2008 (charging regulations)).
- The nature of the information request (which was, give me the information necessary to complete the CON 29R form) meant that more information was required than if the council was merely providing the answers to those questions. Therefore, it took longer to compile.
The Information Commissioner accepted all of these arguments and held that the policy adopted by the council that lead to longer response times for requests made under the EIR complied with the requirements of the EIR (although it did find that there had been some unnecessary delay, this was a minor issue caused by the accidental deletion of an e-mail). Further, the Information Commissioner added an additional note to its decision notice highlighting that the council had responded to the request within 20 working days and that complaints made in these circumstances may have the “undesirable effect of diverting public authorities’ resources away from actually responding to requests”. Therefore, it is likely that future complaints about a slower response time for requests made under the EIR than under the charging regulations will be met with little sympathy.
A first victory under information legislation for local authorities may increase the popularity of the Information Commissioner, but it should not divert attention from the central issue that the government appears to have completely overlooked the EIR when putting in place the charging regulations. The result is a mess and arguments about this mess will continue to take up a significant amount of time and money until the government clarifies the position.
This is an outrageous abuse of a monopoly position. The council has manufactured a position to flout the EIR and is at risk under the competition act and the Land Charges act.
The simple fact is when the councils were allowed to charge for the info they had no problem or delays. Once the charges were removed they suddenly had problems and it is significant that they always take twenty working days.
What we are asking for is access to the files so we can compile our own reports but the councils could not justify the delay if they gave us access so they print off the info saying they have to put special procedures in place to do this which cause delays. That is a joke. We will accept yes no answers. The ICO is complicit in this by allowing the Local Authorities to deny us access saying providing the info is an acceptable alternative when it clearly is not. One wonders if this is a way of the ICO redressing the costs of lost charges due to the EIR.
The councils are aware that due to their own inefficiencies they cannot compete on a level playing field with private search companies so they cheat. To call themselves public servants is to insult the public who have to pay more for information than they need to.