Small Business Rates Relief

The request was refused by Scarborough Borough Council.

Dear Scarborough Borough Council,

Please provide a complete list of business addresses and their
occupiers with rateable
values between £2,000 and £12,000 that
are NOT in receipt of small business rate relief.

Please also list their property
description, actual liability (i.e. rates payable), what
date they are liable from and indicate if the account is live or
not.

Please can you ensure this information is accurate and up to date.

Yours faithfully,

Gareth Elton

Diane Cross, Scarborough Borough Council

Dear Mr Elton

 

Email Address: [FOI #242085 email]

FOI Request Reference: FOIA3583 - Small Business Rate Relief Information

Thank you for your written communication of 01/12/14.

Your request has been referred to the responsible officer and a response
should be made within the statutory timeframe of 20 working days from the
date of receipt.

In some circumstances a fee may be payable and if that is the case, we
will let you know. A fees notice will be issued to you, and you will be
required to pay before we will proceed to deal with your request.

Please ensure that any further communication in relation to this matter is
sent by you to the Freedom of Information Officer at the below address
quoting the reference FOIA3583 in all communications.

Yours sincerely

Freedom of information Officer

 

 

Freedom of Information Officer

Legal and Democratic Services

Scarborough Borough Council

e:  [1][Scarborough Borough Council request email]

t:01723 232323

f:0870 2384159

w:  [2]www.scarborough.gov.uk

 

 

 

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Diane Cross, Scarborough Borough Council

Dear Mr Elton

 

FOI REF: FOIA3583 – Small Business Rate Relief Information

 

Thank you for your request for information under the Freedom of
Information Act 2000 (FOIA).  You requested the following information:

 

Please provide a complete list of business addresses and their occupiers
with rateable values between £2,000 and £12,000 that are NOT in receipt of
small business rate relief.

 

Please also list their property description, actual liability (i.e. rates
payable), what date they are liable from and indicate if the account is
live or not.

 

I can state that the Council does hold information relevant to your
request, however I consider that the information is exempt from disclosure
under sections 21, 40(2) and 41 of the FOIA respectively.   It is
important to state at this stage that any response given under the FOIA is
a response into the public domain, and not merely to the applicant.  When
considering exemptions and reliefs it is this perspective which must be
taken into account.

 

Section 21 – Information accessible to applicant by other means

 

Section 21(1) of the FOIA states:

 

“Information which is reasonably accessible to the applicant otherwise
than under section 1 is exempt information.”

 

Complete rating lists for Scarborough Borough Council’s area can be found
on the Valuation Office Agency’s website at [1]www.voa.gov.uk/. So far as
is relevant to your request, the Billing Authority reference number, full
postal address of the property and the rateable value are all available at
this address.

 

I am satisfied that some of the information you seek is therefore
available via this website and that the exemption at section 21 FOIA
applies to that part of the information requested.

 

Section 40(2) – Personal information

You have also requested information which is personal data, being the name
of the occupiers of the premises. It is accepted that some occupiers will
not be individuals but companies; therefore this exemption only applies to
that data which relates to living individuals.

 

While considering this part of your request I have had regard to the
following guidance documents:

 

o   Information Commissioner’s Office Guidance on the exemption for
personal data.

o   Information Commissioner’s Office Update Note – Applying the exemption
for third party personal data: the Tribunal’s approach in House of Commons
v IC & Leapman, Brooke and Thomas.

 

All of the above documents can be accessed at the Information
Commissioner’s Office website at [2]www.ico.org.uk

 

So far as is relevant, section 40 states:

 

“(2) Any information to which a request for information relates is also
exempt information if—

 

(a) it constitutes personal data which do not fall within subsection (1),
and

(b) either the first or the second condition below is satisfied.

 

(3) The first condition is—

 

(a) in a case where the information falls within any of paragraphs (a) to
(d) of the definition of “data” in section 1(1) of the Data Protection Act
1998, that the disclosure of the information to a member of the public
otherwise than under this Act would contravene—

 

(i) any of the data protection principles, or

(ii) section 10 of that Act (right to prevent processing likely to cause
damage or distress), and…”

 

To satisfy this exemption it is necessary to consider whether any of the
data protection principles of the Data Protection Act 1998 (DPA) would be
contravened by disclosing the requested information.

 

The data protection principles are contained within Schedule 1 of the DPA.
The first principle states that:

 

“Personal data shall be processed fairly and lawfully and, in particular,
shall not be processed unless—

 

(a) at least one of the conditions in Schedule 2 is met, and

(b) in the case of sensitive personal data, at least one of the conditions
in Schedule 3 is also met.”

 

Schedule 2 of the DPA contains a number of conditions, at least one of
which has to be met in order that the processing (in this case disclosure)
becomes lawful.

 

The only condition contained within Schedule 2 of the DPA which may be of
relevance to your request is condition 6(1), which states:

 

“The processing is necessary for the purposes of legitimate interests
pursued by the data controller or by the third party or parties to whom
the data are disclosed, except where the processing is unwarranted in any
particular case by reason of prejudice to the rights and freedoms or
legitimate interests of the data subject.”

 

The ICO guidance states that I am required to balance the legitimate
public interest in disclosure against the interests of the
occupier/ratepayer to whom the personal data relate. In following the High
Court decision in Corporate Officer of the House of Commons v Information
Commissioner and Leapman, Brooke and Ungoed Thomas [2008] EWHC 1084
(Admin), a copy of which can be found at [3]www.bailii.org, the
Information Commissioner has recommended that public authorities approach
Condition 6 as a three-part test:

 

 1. there must be a legitimate public interest in disclosure;
 2. the disclosure must be necessary to meet that public interest; and
 3. the disclosure must not cause unwarranted harm to the interests of the
individual.

 

Is there a legitimate public interest in disclosure?

 

It is accepted that you, as the applicant, have an interest in the
personal data requested. In deciding whether there is a legitimate
interest, it is the collective public interest which must be taken into
account and not the specific interest of the applicant. The guidance
further states that there must be a genuine public interest, and not
merely public curiosity.

 

Is disclosure necessary to meet that public interest?

 

What the guidance does make clear is that personal information should only
be released if there is a genuine reason to disclose and it would not
involve unfairness to the individual.

 

Examples of a genuine reason could be where there are controversies or
credible allegations, a lack of safeguards against corruption or failure
to follow normal procedures. In essence what is required is more than a
mere suggestion of wrong-doing or malpractice. There is certainly no such
allegation against the Council.

 

The Council have in place adequate safeguards, policies and procedures to
regulate the administration of business rates. There are also relevant
provisions within the Council’s Constitution, and the Council’s Monitoring
Officer is responsible for ensuring that the Council and its officers act
within the law. The Local Government Ombudsman and the Audit Commission
also externally regulate the Council’s activities. I consider that these
established means of check and balance satisfy any public interest in
ensuring transparency and accountability, and it is not necessary to
disclose the personal data of occupiers to meet the public interest.

 

Would disclosure cause unwarranted harm to the interests of the
individual?

 

In dealing with the third consideration, persons supplying the Council
with personal data for the purpose of administering business rates and any
applicable relief have a legitimate expectation to privacy, and protection
from harm or distress. It would be unwarranted and contrary to those
persons’ expectations and legitimate interests for the Council to disclose
their personal data. When supplying their personal data those persons are
aware that it will be used to administer business rates and any applicable
relief, but would not expect that their personal data would be released
into the public domain.

 

It is also of relevance that the second data protection principle
contained within Schedule 1 of the DPA states:

 

“Personal data shall be obtained only for one or more specified and lawful
purposes, and shall not be further processed in any manner incompatible
with that purpose or those purposes.”

 

The personal data in question was obtained by the Council for the purposes
of the administration of business rates and the necessary processing this
involves. It was not specified to the persons in question that their data
may be disclosed into the public domain. Indeed it is possible that some
of the persons in question may not have supplied full information if they
were aware that their personal data may be disclosed into the public
domain. In any case I consider that a disclosure would also breach this
second principle as it would be incompatible with the purpose for which
the personal data was obtained.

For completeness, I must consider whether disclosure would be fair and
lawful in accordance with the first data protection principle. The
guidance states that for practical purposes, disclosure will generally be
fair if Schedule 2 Condition 6 has been satisfied. As it has not in my
opinion, it follows that a disclosure would not be fair under the first
principle.

 

For these reasons I am satisfied that disclosure of personal data would
not comply with the first or second DPA principle, and therefore the
absolute exemption at section 40(2) of the FOIA is engaged.

 

Section 41 – Information provided in confidence

 

Section 41 of the FOIA states:

 

1)      Information is exempt information if-

 

a)      it was obtained by the public authority from any other person
(including another public authority), and

 

b)      the disclosure of the information to the public (otherwise than
under this Act) by the public authority holding it would constitute a
breach of confidence actionable by that or any other person.

 

2)      The duty to confirm or deny does not arise if, or to the extent
that, the confirmation or denial that would have to be given to comply
with section 1(1)(a) would (apart from this Act) constitute an actionable
breach of confidence.

 

I have taken into account the following documents and decisions relevant
to this exemption:

 

1.       Information Commissioner’s Decision Notice Ref: FS50121245

 

2.       Information Commissioner’s “Freedom of Information Act –
Awareness Guidance 2 – Information provided in confidence”

 

3.       Information Commissioner’s “Freedom of Information Act – The duty
of confidence and the public interest”

 

All of the above documents and decisions can be found at the Information
Commissioner’s website [4]www.ico.org.uk

 

Section 41(1)(a) requires that the information in question was obtained
from any other person. The Commissioner’s Guidance listed at 2 above
states at page 1:

 

                 A person may be an individual, a company, a local
authority or any other “legal entity”

 

The information in question was obtained by the Council from both
individuals and non-individuals such as a company. This part of the
exemption is therefore satisfied.

 

Section 41(1)(b) requires the disclosure by the Council to constitute an
actionable breach of confidence by that person. The information must
therefore have the necessary quality of confidence.

 

In my opinion the information does have the necessary quality of
confidence. It is recognised in English law that an important duty of
confidentiality is owed to taxpayers. This is what is known as “taxpayer
confidentiality”. This is a long established principle of common law,
protecting taxpayers’ affairs against disclosure to the public, and has
been recognised to be of the utmost importance when dealing with the
administration of tax and rates.

 

I am satisfied that the requested information is not trivial, nor is it
available by any other means. If the Council were to disclose the
requested information individual business ratepayers could issue legal
proceedings.

 

The Information Commissioner is also aware of the common law duty of
taxpayer confidentiality, as noted in paragraph 17 of the Decision Notice
listed at 1 above, which states:

 

The Council sought to ensure that the Commissioner was aware of the
long-standing principle of taxpayer confidentiality, which protects the
tax arrangements of taxpayers from release to the public. The principle of
taxpayer confidentiality exists, in part, to prevent prejudice to the
commercial interests of taxpayers.

 

The duty of confidence is not absolute, and the courts recognise three
circumstances under which confidential information may be disclosed:

 

o Where the person to whom the duty of confidentiality is owed consents
to the disclosure.

 

o Where the disclosure is required by law.

 

o Where there is an overriding public interest in disclosure.

 

In the context of this request, no consent has been obtained from the
individual taxpayers, nor is the disclosure required by law.

 

Of more relevance is whether there is an overriding public interest. The
Information Commissioner states in his guidance listed at 2 above, that
“the courts have taken the view that the grounds for breaching
confidentiality must be valid and very strong. A duty of confidence should
not be overridden lightly.”

 

The Information Commissioner has produced further guidance upon the duty
of confidence and the public interest test, listed at 3 above. I have had
particular regard to the content of this guidance in dealing with your
request.

 

It is stated at page 2 of this guidance that “the public interest test
within the duty of confidence assumes that information should be withheld
unless the public interest in disclosure outweighs the public interest in
maintaining the duty of confidence.”

 

It is appreciated that there may be a public interest in scrutinising how
the Council administers its business rates, however this interest is
vastly reduced in the absence of any allegations of serious misconduct,
wrongdoing or risks to the public.

 

Ratepayers provide information (including names and addresses) to the
Council in confidence, and have a legally supported expectation that this
confidence is maintained. Disclosure of any rate or tax related
information may discourage rate and taxpayers from providing full
information to the Council if there were not a degree of certainty that
such confidences would be respected. Furthermore, there is a public
interest in maintaining trust and preserving a free flow of information to
the Council where this is necessary for the Council to perform its
statutory functions relating to the administration of business rates and
council tax. Such functions are undertaken for the benefit of the public.

 

I consider that it would be excessive to override the duty of taxpayer
confidentiality and disclose information relating to the affairs of
business ratepayers. Your request for disclosure is therefore refused
under section 41 of the FOIA.

 

Review

 

If you are unhappy with the service you have received in relation to your
request and wish to make a complaint or request a review of our decision,
you should write to the Freedom of Information Officer, Town Hall, St
Nicholas Street, Scarborough, North Yorkshire, YO11 2HG or email
[5][Scarborough Borough Council request email].

 

If you are not content with the outcome of your complaint, you may apply
directly to the Information Commissioner for a decision. Generally, the
Information Commissioner’s Office cannot make a decision unless you have
exhausted the complaints procedure provided by Scarborough Borough
Council. The Information Commissioner can be contacted at: The Information
Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9
5AF | Tel: 01625 545745 | Fax: 01625 524510 | Web: [6]www.ico.org.uk.

 

Yours sincerely

 

Diane Cross

 

 

 

 

Di Cross

Administration and Information Officer, Legal and Democratic Services

Scarborough Borough Council

e: [7][email address]

t:01723 232347 (DL)

f:0870 2384159

w: [8]www.scarborough.gov.uk

 

 

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