More financial woe for councils after Upper Tribunal property search ruling

Financially hard-pressed local authorities have been dealt another blow after the Upper Tribunal last week rejected an appeal by Kirklees Council over its attempts to charge a property search company for inspecting property information.

The company, Property and Land Information (PALI), had requested on 16 December 2009 to inspect information held by the local authority as environmental information free of charge. The information would have allowed PALI to answer a number of the questions on the Con29r form, which deals with standard enquiries of a local authority.

Kirklees said it would provide the information requested but only if PALI paid a set fee of £11. It rejected the company’s argument that it was obliged to make the information available for free under the Environmental Information Regulations 2004. It said that access to the Local Land Charges Register was governed by the Local Land Charges Act and Rules, and referred PALI to the Local Authorities (Charges for Property Searches) Regulations 2008 as the statutory basis for the fees charged.

PALI then appealed to the Information Commissioner, who wrote to the council saying the information was environmental information and should be considered for disclosure. The Commissioner also pointed to the decision of the First-Tier Tribunal in East Riding of Yorkshire v Information Commissioner and York Place (EA/2009/0069), adding that Kirklees’ reliance on the OneSearch ruling was misplaced. The council in turn maintained its stance.

In a decision notice on 26 July 2010, the Commissioner again concluded that the information requested was environmental information and the request from PALI was a valid one. It said Kirklees was in breach of the EIR.

The council appealed and the case was referred direct to the Upper Tribunal because of its wide implications, particularly in financial terms, for local authorities.

In Kirklees Council v Information Commissioner and PALI Ltd [2011] UKUT 104, the Commissioner’s finding that all of the information requested constituted “environmental information” within the meaning of the EIR was not challenged and was not therefore reviewed.

Instead Kirklees’ counsel argued that because of the form in which PALI had made its email request of 16 December 2009, the council was not obliged to respond to it as a request under the EIR at all, and that therefore the machinery and statutory obligations never became applicable.

Alternatively, he argued that the charges made by Kirklees for retrieval costs and access to non-public information in connection with personal searches were consistent with the EIR and permissible.

But the Tribunal said Kirklees was obliged under the EIR to deal with the request made by PALI as an effective request for environmental information pursuant to Regulation 5(1). It said it was not persuaded by the council’s argument that the 16 December email should be characterised as a complaint that Kirklees had failed to comply with duties, or as an enquiry or request for research and not a valid request.

“We consider that the words used by PALI in the e-mail are clear and unambiguous and amount to a request under Regulation 5 of the EIR for access to inspect the information identified,” the Tribunal said.

The Tribunal also rejected Kirklees’ main argument on the validity of the request, namely whether it was – in the council’s submission – a valid or “descriptive” request or an invalid “purposive” request.

“If we adopted and approved [the] definition of a valid or “descriptive” request, applicants would be faced with technical hurdles and this could risk unduly narrowing access to environmental information,” it said. “We consider that the terms ‘purposive’ and ‘descriptive’ are unhelpful and misleading.”

The Tribunal also rejected Kirklees’ argument that it was still entitled to charge even if there was a valid request for information under the EIR. The council had suggested that although Regulation 8(2) prohibited charging for the facility to examine, it was silent about locating and retrieving the information itself for that examination.

The Tribunal concluded that: “It is clear from the wording of Regulation 8(2)(b) that charging a fee can only be permissible in connection with the provision of a copy, or a supply of the requested information in some other way than allowing it to be examined in situ.”

Summarising its decision to reject Kirklees’ appeal, the Tribunal held that the authority was obliged under the EIR to deal with the request as an effective request.

The Tribunal said: “On that footing the Commissioner’s determination that all of the information requested must be made available by the Appellant (the Council) to the Second Respondent (PALI) for examination in situ without charge, and that the Appellant was in breach of its duties under the Regulations in declining to do so, was correct and is confirmed.”

The Tribunal added that “for the avoidance of doubt”:

• This only required Kirklees to make available for examination information held by it, whether electronically or in physical form, from which a set of answers to the standard enquiries on form Con29R in relation the property can be derived
• It does not require the council to conduct any more refined evaluation of any such information or its actual relevance (if any) to any such enquiry, or to provide any information in the form of actual or putative answers to the enquiries themselves
• It does not require the disclosure of any personal data contrary to Regulation 13 of the EIR.

A spokesman for Kirklees Council said the case involved a national issue affecting all councils providing local searches.

“While the amount involved seems trivial, due to recent rulings there was concern that councils could lose income by having to provide information for free to personal search companies who would then sell the information on at a profit,” he said.

“If the council cannot impose charges to cover its own costs, it means that there is a cost burden on local people. We are considering the full implications of the ruling.”

The Upper Tribunal ruling is the latest blow for local authorities in their efforts to charge, following on as it does from the East Riding case. In July 2010, the government also announced that councils would no longer be able to charge the £22 fee for a personal search of the Local Land Charges Register. The Department for Communities and Local Government said the move was designed to ensure compliance with EU law.

Philip Hoult