IN THE FIRST-TIER TRIBUNAL GENERAL REGULATORY CHAMBER (INFORMATION RIGHTS)

APPEAL: EA/2013/0285

BETWEEN:

NEIL GILLIATT Appellant and THE INFORMATION COMMISSIONER Respondent

APPELLANTS REPLY TO RESPONDENTS RESPONSE TO NOTICE OF APPEAL

The following abbreviations are used and conform with the Commissioners Response: NoA Notice of Appeal DCLG Department of Communities and Local Government DN Decision Notice Regulations Council Tax (Administration and Enforcement) Regulations 1992

Introduction 1. This Reply is served in accordance with rule 24 of the Tribunal Procedure (Firsttier Tribunal) (General Regulatory Chamber) Rules 2009.

Commissioners Response

2.

The Commissioner, in his Response stated so far as is relevant, at 20: As recorded in the DN, the Commissioner carefully scrutinised NELC's claim that it did not hold the requested information, including by reference to whether there was any legal requirement or business need for NELC to hold it. The NoA provides no basis at all for the Tribunal to question the Commissioner's conclusion on this point. It must be noted that the bases for questioning the legal requirement for NELC to hold the information were numerous (see NoA, 3, 12, 1415 and 17). Additionally, though considered by NELC and the Commissioner to be only guidance, those bases were nevertheless supported by both the Department of the Environment (DoE) and DCLG (see NoA, 1821).

3.

The Commissioner, apparently in his Response at 27(2), implies (figuratively speaking) that councils have a license to print money because no statutory provision exists that states councils must hold information enabling them to justify costs. However, regulation 34(5)(b) of the Regulations provides for costs reasonably incurred. The term incurred appears in these circumstances to mean actual expenditure so would be reasonable to expect that a court would require satisfying they were no more than this. It is worth noting there are unlikely many instances where a member of the public has asked for, and been awarded costs without first itemising the incurred expenses.

4.

The Commissioner stated in his Response at 28:

28.

Importantly, the Commissioner accepted NELC's explanation that the actual costs incurred in connection with the council tax summons would vary in each individual case, but that NELC does not have the necessary resources to calculate costs incurred on a case by case basis, but rather sets a prescribed cost which is applied to all cases (DN, para. 18). The appellant does not even attempt, in the NoA, to call this explanation into question.

The second ground of appeal made references to and explained how it would be straightforward to determine the information specific to the request (see NoA, 2226). The request submitted May 2, 2013 emphasised too that many factors would have to be discounted in determining the actual costs incurred, calling further into question the explanation (see NoA, 4) and below:

Note: The authority will have accepted payment and the application halted, therefore no costs can be included in respect of agreeing or setting-up payment arrangements, monitoring payment arrangements, telephone communications or correspondence entered into outside those automatically triggered.

5.

The Commissioner in his Response contends (34) that data referred to in the second ground of appeal (see NoA, 2226) does not constitute recorded information held in respect of that which was asked for. It may be helpful to point out that the information asked for was NOT a calculation it held on record, but for the costs which would have been incurred by the council under specific circumstances for which there is provided in law costs reasonably incurred (see NoA, 12). The second ground explained that it would hold all relevant expenditure and data to enable disclosure of the requested information and was stated so far as is relevant, the following at NoA, 6(ii), (emphasis added):

ii) on the balance of probabilities, the council would have all relevant expenditure and data on record to facilitate the disclosure of the requested information. Note: Pursuant to s84 FOIA (Interpretation), information means information recorded in any form.

The Commissioner continued, and for reasons which are unclear as to the relevance, said that the data referred to in the second ground of appeal could have been asked for, but was not. It was in any event clear (see NoA, 2226) that the data in the second ground of appeal had already been obtained elsewhere. It was further identified that the process is automated therefore costs could not reasonably exceed what was paid to HMCTS in fees plus a token amount in respect of postage, stationary and printing. From information already obtained, the appellant could reasonably estimate the costs himself, but wished that NELC 2

provide the figure that would highlight a discrepancy where the sum imposed on its residents was more than 10 times what it incurs for such action.

6.

The Response at 35 assumes in error that the Appellant ignores NELCs description of the nature of the costs incurred in seeking recovery of unpaid council tax by issue of a summons (17, DN). It should be noted that some items listed as expenditure were referred to (see NoA, 2426). Those not; namely postage, printing & stationary were considered (as aforementioned) a token amount and rendered more insignificant due to economies of scale. It was also erroneously assumed that the Appellant considered the amount paid to HMCTS in court fees to be the only relevant costs. The Commissioner continued stating that there were no reasons offered by the Appellant to doubt NELC's explanation that it does not have resources to calculate the cost of pursuing council tax on a caseby-case basis. It is worth noting that in order to disclose the requested information, it required only to consider a scenario where payment is made in accordance with regulation 34(5) of the Regulations, where at (b) it provides for costs reasonably incurred. Until relatively recently, NELC imposed costs incrementally (two stages); a standard charge in respect of the summons and another to obtain a Liability Order. The Commissioner goes on to say ...if the Appellant is aggrieved by the level of the standard charge imposed in this respect, an appeal under FOIA is simply the wrong forum in which to air that grievance. Whether or not the Appellant is aggrieved in this regard is of no consequence. Neither would it be of any consequence, if for example, the Appellant was attempting to identify fraud operations on a multimillion pound scale. The motive behind a person wanting to obtain information via FOI is immaterial.

7.

Although it is unclear what is being contended in the Response at 37(2) it seems to be implying that the additional text submitted relating to paragraph 3.4 of the DCLG guidance was considered (see 17, DN). The opinion is also expressed that even if there was a failure to consider this it would not have made any difference to the outcome. There appears to be no evidence in the DN, at least not at 17 where it is suggested in the Commissioners Response that the amended text was considered. It is contended that the additional text relating to paragraph 3.4 of the DCLG guidance (NoA, 29) if considered would not have added weight to the argument. 3

Conclusion

8.

It is contended that the appeal should be dismissed and that there has been no error demonstrated in the Commissioners determination. It has been established not only on the balance of probabilities, but beyond reasonable doubt that NELC hold the requested information.

07 February 2014