Information Rights Tribunal - Appeal Ref: EA/2013/0285 (North East Lincolnshire Council)

Stan Higgleston (Account suspended) made this Freedom of Information request to Information Commissioner's Office

This request has been closed to new correspondence. Contact us if you think it should be reopened.

The request was partially successful.

Stan Higgleston (Account suspended)

Dear Information Commissioner’s Office,

It has recently been determined by the High Court ( http://www.bailii.org/ew/cases/EWHC/Admi... ) that the information relating to a decision taken by certain officers of North East Lincolnshire Council, that the council had no legal obligation to hold, has in fact a legal obligation to hold it.

See paragraph 14 of Information Commissioner's Decision Notice
(Ref: FS50505226)

https://ico.org.uk/media/action-weve-tak...

"14. ....It explained that on receiving the request in May 2013, discussions took place between Local Taxation & Benefits Shared Service Manager, Strategic Lead - Revenues, Court Enforcement Officer and Accountancy, and it was noted through discussion, that with regards to 34 (5) of SI 1992/613 the council had no legal obligation to hold the information requested."

Q1. Would the Information Commissioner’s Office (ICO) please provide all the information which North East Lincolnshire Council disclosed to the ICO for its investigation, regarding the discussions that took place which led to the decision taken by the council that it had no legal obligation to hold the information requested?

Yours faithfully,

Stan Higgleston

AccessICOinformation, Information Commissioner's Office

Thank you for contacting the Information Commissioner’s Office. We confirm
that we have received your correspondence.

 

If you have made a request for information held by the ICO we will contact
you as soon as possible if we need any further information to enable us to
answer your request. If we don't need any further information we will
respond to you within our published, and statutory, service levels. For
more information please visit [1]http://ico.org.uk/about_us/how_we_comply

 

If you have raised a new information rights concern - we aim to send you
an initial response and case reference number within 30 days.

 

If you are concerned about the way an organisation is handling your
personal information, we will not usually look into it unless you have
raised it with the organisation first. For more information please see our
webpage ‘raising a concern with an organisation’ (go to our homepage and
follow the link ‘for the public’). You can also call the number below.

 

If you have requested advice - we aim to respond within 14 days.

 

If your correspondence relates to an existing case - we will add it to
your case and consider it on allocation to a case officer.

 

Copied correspondence - we do not respond to correspondence that has been
copied to us.

 

For more information about our services, please see our webpage ‘Service
standards and what to expect' (go to our homepage and follow the links for
‘Report a concern’ and ‘Service standards and what to expect'). You can
also call the number below.

 

If there is anything you would like to discuss with us, please call our
helpline on 0303 123 1113.

 

Yours sincerely

 

The Information Commissioner’s Office

 

Our newsletter

Details of how to sign up for our monthly e-newsletter can be found at
[2]http://www.ico.org.uk/tools_and_resource...

 

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Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire, SK9 5AF
Tel: 0303 123 1113 Fax: 01625 524 510 Web: www.ico.org.uk

References

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Stan Higgleston (Account suspended) left an annotation ()

The significance of this request in a wider context.

The Council was challenged that it had a legal obligation to be able to support its council tax court summons costs which it had increased over night by 120%. The council denied that it had a legal obligation and on these grounds (as well as others) complaint was made to the Information Commissioner and subsequently to the Information Rights Tribunal. Both the Commissioner and Tribunal Judge surprisingly agreed with the Council that the relevant legislation and government guidance provided no legal obligation for the council to be able to support the costs which it recharged to NE Lincs residents in these proceedings.

It can only be concluded that it was of utmost importance that the complainant's appeal failed because the Information Commissioner splashed out on a Barrister to represent the ICO who specialised in this area.

However, recent judgment in a High Court case very relevant to the matters raised in the Information Rights Tribunal ruled completely the opposite. http://www.bailii.org/ew/cases/EWHC/Admi...

The irony is that it is beyond reasonable doubt that the judgment was modelled on the various papers submitted to the Tribunal.

Grounds of Appeal (Notice of Appeal) https://www.scribd.com/doc/194668610/Gro...

Reply to Commissioner's Barrister https://www.scribd.com/doc/205364761/Rep...

Permission to Appeal to Upper Tribunal https://www.scribd.com/doc/229409190/Per...

Information Commissioner's Office

1 Attachment

4 August 2015

 

Case Reference Number IRQ0591171

 

Dear Mr Higgleston
 
I am writing in response to your request for information, received 28
July. You requested:
 
“Would the Information Commissioner’s Office (ICO) please provide all the
information which North East Lincolnshire Council disclosed to the ICO for
its investigation, regarding the discussions that took place which led to
the decision taken by the council that it had no legal obligation to hold
the information requested”
 
We have dealt with your request under the provisions of the Freedom of
Information Act 2000, and are now in a position to provide our response.
 
Please find attached a copy of the submissions received from North East
Lincolnshire Council which relate to its discussions, which led to its
decision that it had no legal obligation to hold the requested
information. No information has been withheld or redacted. For the
avoidance of doubt, the spreadsheet referred to in the disclosed
submissions is not within the scope of your request as it is not about the
council’s decision that it had no legal obligation to hold the
information.
 
This concludes our response to your request. I hope this is of help to
you.
 
Yours sincerely
 
Steven Dickinson                
Lead Information Access Officer
 
Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire SK9 5AF
T. 01625 545676  F. 01625 524510  [1]ico.org.uk  [2]twitter.com/iconews
Please consider the environment before printing this email
 
 
If you are dissatisfied with the response you have received and wish to
request a review of our decision or make a complaint about how your
request has been handled you should write to the Information Access team
at the address above or e-mail [3][ICO request email]
 
Your request for internal review should be submitted to us within 40
working days of receipt by you of this response.  Any such request
received after this time will only be considered at the discretion of the
Commissioner.
 
If having exhausted the review process you are not content that your
request or review has been dealt with correctly, you have a further right
of appeal to this office in our capacity as the statutory complaint
handler under the legislation.  To make such an application, please write
to the Customer Contact department, at the address above or visit the
‘Complaints’ section of our website to make a Freedom of Information Act
or Environmental Information Regulations complaint online.
 
A copy of our review procedure is available [4]here
 

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Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire, SK9 5AF
Tel: 0303 123 1113 Fax: 01625 524 510 Web: www.ico.org.uk

References

Visible links
1. http://ico.org.uk/
2. https://twitter.com/iconews
3. mailto:[ICO request email]
4. https://ico.org.uk/media/about-the-ico/p...

Stan Higgleston (Account suspended)

Dear Information Commissioner’s Office,

Thank you.

Re;

"On receiving the request in May 2013, discussions took place between Local Taxation & Benefits Shared Service Manager, Strategic Lead - Revenues, Court Enforcement Officer & Accountancy.

It was noted through discussion, that with regards to 34 (5) that North East Lincolnshire Council had no legal obligation to hold the information requested.

As there was no legal obligation to hold the information, it was confirmed that no breakdown of the required amounts was held on the Councils systems, or had been produced.

Based on this discussion no further searches were entered into as the information was not held."

The information above does not give any indication as to what was discussed and why the council had come to the conclusion that it had no legal obligation to hold the information requested.

Apart from the fact it was wrong in its decision, was there no justification given to the ICO as to why it determined this?

I would like to see the spreadsheet supplied if possible.

Yours faithfully,

Stan Higgleston

casework, Information Commissioner's Office

Thank you for contacting the Information Commissioner’s Office. We confirm
that we have received your correspondence.

 

If you have raised a new information rights concern - we aim to send you
an initial response and case reference number within 30 days. 

 

Please note that if you are concerned about the way an organisation is
handling your personal information, we will not usually look into it
unless you have raised it with the organisation first. For more
information please see our webpage ‘raising a concern with an
organisation’ (go to our homepage and follow the link ‘for the public’).
You can also call the number below.

 

If you have requested advice - we aim to respond within 14 days.

 

If you have made a request for information held by the ICO - we will
contact you as soon as possible if we need any further information to
enable us to answer your request. If we don't need any further information
we will respond to you within our published, and statutory, service
levels. For more information please visit our webpage 'access information
about the ICO' (go to our homepage and follow the link for ‘about the
ICO’).

 

If your correspondence relates to an existing case - we will add it to
your case and consider it on allocation to a case officer. 

 

Copied correspondence - we do not respond to correspondence that has been
copied to us. 

 

For more information about our services, please see our webpage ‘service
standards and what to expect’ (go to our homepage and follow the links for
‘Report a concern’ and ‘Service standards and what to expect'). You can
also call the number below.

 

If you have a matter you would like to discuss with us, please call our
helpline on 0303 123 1113 (local rate).

 

Yours sincerely

 

The Information Commissioner’s Office

 

Our newsletter 

Details of how to sign up for our monthly e-newsletter can be found at
[1]http://www.ico.org.uk/tools_and_resource...

 

Twitter 

Find us on Twitter at [2]http://www.twitter.com/ICOnews

 

show quoted sections

Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire, SK9 5AF
Tel: 0303 123 1113 Fax: 01625 524 510 Web: www.ico.org.uk

References

Visible links
1. http://www.ico.org.uk/tools_and_resource...
2. http://www.twitter.com/ICOnews

Information Commissioner's Office

5 August 2015

 

Case Reference Number IRQ0592140

 

Dear Mr Higgleston

Request for Information
 
Thank you for your correspondence dated 5 August. You have requested:
 
“I would like to see the spreadsheet supplied if possible.”
 
This is with reference to a spreadsheet described in correspondence sent
to you in response to your earlier request, dealt with under our case
reference IRQ0591171.
 
Your request is being dealt with in accordance with the Freedom of
Information Act 2000. We will respond promptly, and no later 3 September
which is 20 working days from the day after we received your request.
Please note the new case reference at the head of this acknowledgement.
 
Should you wish to reply to this email, please be careful not to amend the
information in the ‘subject’ field. This will ensure that the information
is added directly to your case.
 
Yours sincerely
 
Steven Dickinson                
Lead Information Access Officer
 
Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire SK9 5AF
T. 01625 545676  F. 01625 524510  [1]ico.org.uk  [2]twitter.com/iconews
Please consider the environment before printing this email
 
 

show quoted sections

Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire, SK9 5AF
Tel: 0303 123 1113 Fax: 01625 524 510 Web: www.ico.org.uk

References

Visible links
1. http://ico.org.uk/
2. https://twitter.com/iconews

Information Commissioner's Office

6 Attachments

28 August 2015

 

Case Reference Number IRQ0592140

 

Dear Mr Higgleston
 
I am writing further to our 5 August acknowledgement of your information
request, also dated 5 August. You requested:
 
“I would like to see the spreadsheet supplied if possible.”
 
This is with reference to a spreadsheet described in correspondence sent
to you in response to your earlier request, dealt with under our case
reference IRQ0591171. As you know, we have dealt with your request in
accordance with the Freedom of Information Act 2000 (FOIA). We are now in
a position to provide our response.
 
Please find attached the information from the spreadsheet provided to the
ICO by NELC. We have provided these pages in pdf form and have titled each
document with the tab number from the spreadsheet. This information is not
a dataset and has not been provided in reusable form.
 
Some entries to the spreadsheet have been withheld. Some lines have been
removed from the ‘Support Services’ tab. This information has been
withheld under the provisions of section 44 of the FOIA which places
prohibitions on disclosure. I will explain the provisions of section 44
below, but first it may be helpful to provide some context. The
spreadsheet was provided to the ICO during the investigation of a
complaint, and is described by NELC as an initial draft provided to the
District Auditor for the purpose of consulting on the publication of
summons costs. The lines which have been withheld were hidden in the
versions provided both to the District Auditor and to the ICO and formed
no part of the ICO’s considerations. A revised version of the final draft
is now published on the council website.

Nevertheless, despite being hidden, the information in the hidden lines
was, strictly speaking, held by the ICO within the spreadsheet you
requested. Section 44 of the FOIA places prohibitions on disclosure and is
an absolute exemption which does not require a consideration of the public
interest test of the type required by the qualified exemptions.

Section 44(1)(a) of the FOIA states;

‘(1) Information is exempt information if its disclosure (otherwise than
under this Act) by the public authority holding it -
(a) is prohibited by or under any enactment’

The enactment in question is the Data Protection Act 1998 (DPA) and
specifically Section 59 of the DPA. Section 59 states that neither the
Commissioner nor his staff shall disclose;

“any information which :
 

 1. has been obtained by, or furnished to, the Commissioner under or for
the purposes of the information Acts.
 2. relates to an identified or identifiable individual business, and
 3. is not at the time of disclosure, and has not been available to the
public from other sources,

unless the disclosure is made with lawful authority.”

Section 59(1) DPA is worded as follows:

(1) No person who is or has been the Commissioner, a member of the
Commissioner’s staff or an agent of the Commissioner shall disclose any
information which
(a) has been obtained by, or furnished to, the Commissioner under or for
the purposes of the information Acts,
(b) relates to an identified or identifiable individual or business, and
(c) is not at the time of the disclosure, and has not previously been,
available to the public from other sources,

unless the disclosure is made with lawful authority.

Section 59(2) explains that there are five circumstances when the ICO
could have lawful authority to disclose; this is an exhaustive list. The
circumstances are:

“(a) the disclosure is made with the consent of the individual or of the
person for the time being carrying on the business,
(b) the information was provided for the purpose of its being made
available to the public (in whatever manner) under any provision of this
Act,
(c) the disclosure is made for the purposes of, and is necessary for, the
discharge of –
(i) any functions under this Act, or
(ii) any Community obligation,
(d) the disclosure is made for the purposes of any proceedings, whether
criminal or civil and whether arising under, or by virtue of, this Act or
otherwise, or
(e) having regard to the rights and freedoms or legitimate interests of
any person, the disclosure is necessary in the public interest.”

I will set out how each provision is made out in this case.

Section 59(1)(a) is satisfied because the information was obtained by the
ICO for the purposes of the information Acts. The Information Acts consist
of the Data Protection Act 1998 and by amendment the Freedom of
Information Act 2000.  

Section 59(1)(b) is satisfied because the information relates to an
identifiable business – NELC. It was confirmed in the decision of the
Information Tribunal [1]EA/2006/0039 that the term business should be
interpreted widely and can cover public authorities or other
organisations.

In relation to section 59(1)(c), the information has not been disclosed to
the public and therefore this does not provide a route to disclosure.

Section 59(2)(b) provides circumstances where lawful authority could be
achieved. We can say that in relation to (a) we do not have consent to
disclose this information and in relation to (b) the information was not
provided to the ICO for the purpose of being made public.

In relation to (c) we must consider whether this applies in any way
without reference to the ICO having received an information request
because section 44 (1) FOIA sets out that ‘Information is exempt
information if its disclosure (otherwise than under this Act)’. We find
that we are not required to disclose this information in order to
discharge a function under the information Acts or a Community obligation.

Further, in relation to (d) a disclosure would not be for the purposes of
proceedings.

Finally, we turn to (e). We should clarify that the public interest
threshold here is very high, not least because disclosure in contravention
of section 59 by the Information Commissioner or his staff may constitute
a criminal offence (s.59 (3)). We do not consider that threshold is met
here.

The requested information was obtained by the ICO in the course of
carrying out its function as regulator of the Freedom of Information Act
2000 and we do not see that we have lawful authority to disclose it here.
We do not consider that giving access for the purposes of a freedom of
information request provides us the lawful authority we require to
disclose it.
 
Some information has been also redacted from the spreadsheet. This
information (names and salary information for NELC staff in Tab 6) is the
personal data of individuals.
 
Section 40(2) of the Freedom of Information Act 2000 (FOIA) allows a
public authority to withhold information from a response to a request
under the FOIA when the information requested is personal data relating to
someone other than the requestor, and its disclosure would contravene one
of the Data Protection principles.
 
We consider that individuals do not anticipate or expect their personal
details to be disclosed to anyone else, simply because they are contained
in a document provided to the ICO. The public authority has confirmed that
the spreadsheet was provided to the ICO in an expectation that it was
provided in confidence. It is therefore understood to have disclosed the
names and salary details within the spreadsheet on the basis that this
information would be held confidential. Therefore, we consider that such a
disclosure would be unfair and in breach of the first Data Protection
principle which states that – “Personal data shall be processed fairly and
lawfully …”
 
This concludes our response to your request. I hope this is of help to
you.
 
Yours sincerely
 
Steven Dickinson                
Lead Information Access Officer
 
Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire SK9 5AF
T. 01625 545676  F. 01625 524510  [2]ico.org.uk  [3]twitter.com/iconews
Please consider the environment before printing this email
 
 
If you are dissatisfied with the response you have received and wish to
request a review of our decision or make a complaint about how your
request has been handled you should write to the Information Access team
at the address above or e-mail [4][ICO request email]
 
Your request for internal review should be submitted to us within 40
working days of receipt by you of this response.  Any such request
received after this time will only be considered at the discretion of the
Commissioner.
 
If having exhausted the review process you are not content that your
request or review has been dealt with correctly, you have a further right
of appeal to this office in our capacity as the statutory complaint
handler under the legislation. To make such an application, please write
to the Customer Contact department, at the address above or visit the
‘Complaints’ section of our website to make a Freedom of Information Act
or Environmental Information Regulations complaint online.
 
A copy of our review procedure is available [5]here.
 
 

show quoted sections

Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire, SK9 5AF
Tel: 0303 123 1113 Fax: 01625 524 510 Web: www.ico.org.uk

References

Visible links
1. http://www.informationtribunal.gov.uk/DB...
2. http://ico.org.uk/
3. https://twitter.com/iconews
4. mailto:[ICO request email]
5. https://ico.org.uk/media/about-the-ico/p...

Stan Higgleston (Account suspended) left an annotation ()

Though some additional information has been supplied it is evident that the investigating officer took the word of North East Lincolnshire Council regarding the authority having no legal obligation to hold the information requested.

Unfortunately, this is how easy it is for local authorities to pull the wool over the eyes of the FoI governing body.