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IN THE FIRST-TIER TRIBUNAL (INFORMATION RIGHTS)

EA/2013/0285
BETWEEN:
Appellant: Xxxx Yyyyy
Respondent: The Information Commissioner (the ICO)


The Tribunal`s Decision on an application for permission to appeal

1. This application is made pursuant to Rule 42 of the Tribunal Procedure (First Tier
Tribunal) (General Regulatory Chamber) Rules, 2009.

2. The Tribunal declines to review this decision pursuant to Rule 44 because it is not sat-
isfied that an error of law is involved, as required by Rule 44(1)(b).

3. The Tribunal does not consider that any arguable issue of law arises from its decision
to dismiss this appeal. It therefore refuses permission tp appeal pursuant to Rule
43(2). Its brief reasons follow.

4. This application relies on the following contentions -
(i) That NELC was under a duty to hold the requested information by virtue of
Reg. 34(5) of SI 1992/613;
(ii) That such a duty is evidence tending to show that they did hold it;
(iii) That the transformation of the data held by NELC from the form in which it
was held to a form responding to the Appellants Request would not have
amounted to the creation of new information.

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(iv) Hence NELC held the requested data and the appeal from the DN should have
been allowed.
Grounds of appeal advanced for the original determination by the Tribunal relating
to alleged failures by NELC to have regard to government guidance were not pursued
in that form. They involved no issue of law.

5. Points (i) and (ii) were the crux of the Appellants original submissions to the Tribu-
nal. Its response remains the same as in its Decision; Reg. 34(5) does not impose the
asserted duty and, if it did, the Tribunal was entitled to find as a matter of fact that
NELC did not comply with it by holding the requested information.

6. As to the supposed duty, it is evidently based on the claim that the duty under Reg.
34(5) to accept the paid or tendered amount can only be discharged if, in every case,
the taxing authority is able to specify precisely the
. . . amount equal to the costs reasonably incurred by the authority in connection with
the application up to the time of the payment or tender, (Reg. 34(5)(b))
There is nothing in that wording to preclude the application of a standard charge,
provided it represents a reasonable estimate of the average cost of the application at
the prescribed time. If there were a duty, then it is to be expected that it would be
expressly stated and a sanction for its breach enacted. Indeed, the existence of such a
duty would render otiose government guidance, whether of 1993 (from the
government that initiated SI/1992/613), or of 2013, presenting the performance of that
duty merely as good practice. Furthermore, paragraph 3.4 of the 2013 Guidance
speaks of a need to show how the reasonable costs are calculated and
implicitly acknowledges the kind of arrangement with the Clerk to the Justices
adopted by NELC.

7. More importantly,, the existence of such a duty is not the issue; the Tribunal was
entitled to accept the denial by NELC that it kept such data, especially since such an
admission amounted to an acknowledgement of imperfect practice. NELC had no ob-
vious motive for denying that they had complied with government guidance.,The fact
that no search took place also tended to support its denial.


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8. It is fair to observe that the Request was not for the recoverable (reasonable) costs
of the issue of a summons where payment was made on the day of issue but for the
cost incurred, which could be greater in some cases.


9. As to the further issue raised by the application, namely, whether data were held in a
form which could be translated into the requested information, the Tribunal accepts
that a public authority may be deemed to hold the requested information where
straightforward manual compilation of data in a different form or interrogation of a
database, by running an existing report or creating a new one, would provide what is
requested. Lord Hope made clear at paragraph 14 of Common Services Agency v
Scottish Information Commissioner [2008] UKHL 47 that public authorities were not
required to create new information in order to answer FOIA requests but that extract-
ing or redacting information from an electronic database did not involve the creation
of new information and that they should adopt a liberal approach to requests involving
searches of a database. That approach was followed by the Tribunal in Home Office v
Information Commissioner EA/2008/0027. The authority is protected from exorbitant
demands on the skills of its IT staff by the cost provisions of s.12.

10. This does not assist the Appellant however because the evidence was that the infor-
mation that he sought was not held in any form. Costs varied from one case to an-
other. Whilst the variable factors - postage, telephone calls, staff time, stationery, re-
minders and more were undoubtedly recorded, given limited resources and the obvi-
ous problems of attribution of certain costs, they were not attributed to the summons
concerned.

11. The Appellant has produced as an annex to his application a calculation apparently
undertaken by NELC subsequent to the Decision Notice and possibly the Tribunals
decision . In principle, such material should not be introduced at this stage when other
parties have no opportunity to deal with it. However, its effect seems to be to under-
line the NELC claim and to vindicate the ICO and Tribunal decisions. Headed
Summons Costs 2012 - 3, it produces an average figure for the recoverable costs re-
lating to the issue of a summons. It is computed by deducting from the total figures

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for collection and recovery expenditure all the overheads and other collection and en-
forcement costs not referable to cases targeted by the Request and dividing the result
by the number of summonses. Though I have not received further evidence as to the
origins or compilation of this spreadsheet, it appears to confirm that gross aggregated
costs were recorded but not attributed to particular summonses. Moreover, it shows
that the costs that NELC would have incurred in respect of the issue of a summons
(the requested information) would include a share of overhead costs that would be
very hard to calculate and which were evidently disregarded when the standard 70
charge was proposed.

12. For these reasons I conclude that there is no proper ground for granting permission to
appeal to the Upper Tribunal.


David Farrer Q.C.

Tribunal Judge

July 3rd., 2014
Promulgated: 4 July 2014