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First-tier Tribunal (Information Rights)

Notice of Appeal
This form is for making an appeal / application to the First-tier Tribunal (Information Rights) against a decision of the Information Commissioner. The Firsttier Tribunal (Information Rights) is administered by the Tribunals Service, an executive agency of the Ministry of Justice, and is independent of the Information Commissioner Please read the guidance Guide to completing the Notice of Appeal / Application before completing this form. First-tier Tribunal (Information Rights) Team Tribunals Operational Support Centre PO Box 9300, Leicester LE1 8DJ Tel: 0300 123 4504 Fax: 0116 249 4253 Please complete the form legibly, using black ink and capital letters. If you need more space on which to write, please include the name of the person making the appeal and any relevant reference numbers on the paper that you use.

1. About the Information Commissioners Notice.


Information Commissioners Notice reference number FS50443807 Date of the Notice you are appealing 22 November 2012

Date you received the written notification of the Notice: 24 November 2012

Please supply a copy of the Decision Notice with this form and tick in the box to show it is attached [

Tribunals Service First-tier Tribunal (Information)

6. Grounds for Appeal / Application


Please provide full details about the grounds for your appeal. Please add additional pages if required

Exclusion under section 12 relating to the 450 cost limit The evidence supplied to the Commissioners Office should have been sufficient to satisfy the Case Officer dealing with my complaint that there wasnt any basis to exempt the request under section 12(1) cost limit. The councils contractor Rossendales would hold the information. The following information was sent to the Case Officer before the decision notice had been served and was taken from NELCs documents.
Contract Procedure Rules Freedom of Information Act (FOIA) and the Environmental Information Regulations (EIR) It shall be a condition of any contract entered into by the Council that: (i) Contractors acknowledge that the Council is subject to the requirements of the FOIA and the EIR which may require the release of information (ii) Contractor shall co-operate with the Council (at contractors expense) to enable the Council to comply with its obligations under the FOIA and the EIR...

Paragraph 3.58 of the Service Level agreement between NELC and Rossendales: Rossendales understands and acknowledges the Council is subject to the requirements of the Freedom of Information Act 2000 and agrees to assist and co-operate with the Council to enable it to comply fully with its disclosure obligations including supplying requested information within 48 hours of being asked to do so by the council. "

Additionally The Freedom of Information Act 2000 itself, under Section 3 makes provision for councils to release information in these circumstances, i.e., (1)(a)(ii) and (2)(b).
3 Public authorities. (1) In this Act public authority means (a) subject to section 4(4), any body which, any other person who, or the holder of any office which (i) is listed in Schedule 1, or (ii) is designated by order under section 5, or (b) a publicly-owned company as defined by section 6.

Tribunals Service First-tier Tribunal (Information)

6. Grounds for Appeal Continued

(2) For the purposes of this Act, information is held by a public authority if (a) it is held by the authority, otherwise than on behalf of another person, or (b) it is held by another person on behalf of the authority.

The relevant part of Section 5, being (1)(a) and (1)(b)


5 Further power to designate public authorities. (1) The [ Secretary of State] may by order designate as a public authority for the purposes of this Act any person who is neither listed in Schedule 1 nor capable of being added to that Schedule by an order under section 4(1), but who (a) appears to the Secretary of State to exercise functions of a public nature, or (b) is providing under a contract made with a public authority any service whose provision is a function of that authority.
F1

Paragraph 54 of the Government Response to the Justice Committees Report (published November 2012): Post-legislative scrutiny of the Freedom of Information Act 2000. This would suggest North East Lincolnshire Council were in fact obliged to supply the requested information despite the contractor Rossendales not being a public body.
54. ........ Where public services are delivered on behalf of a public authority under contract, the Government expects that contractors will fully assist public authorities in meeting their current obligations under FOIA to consider for disclosure information held on public authorities behalf by a contractor. We agree with the Committee that contracts should include clear provisions in this regard, and stress that public authorities should not be reluctant in taking all necessary steps to ensure compliance.

If these points had been considered by the Information Commissioner and found not to have any bearing on the councils reliance to exempt releasing the information, there was no clear explanation in the decision notice.

Tribunals Service First-tier Tribunal (Information)

6. Grounds for Appeal Continued

Councils change in response from not holding information to holding it The council stated on 5 different occasions in its correspondence to me that it did not hold the requested information. 10 January 2012 was the first email in which it stated this and continued to uphold this decision until 14 August 2012 where it finally stated the information was held. Although to a degree this is acknowledged in the decision notice, it states at paragraph 29: ...as a detailed explanation was provided to the Commissioner and is included in this notice, he requires no steps to be taken. There wasnt anything in the notice explaining why the authority maintained for seven months that it did not hold the information when it in fact did. A detailed explanation was provided to support its decision to withhold information under section 12(1) cost limit, which was all.