The Searchers

A recent Information Rights Tribunal has highlighted the need for local authorities to consider how they would respond to a request for information under the Environmental Information Regulations 2000. Jane Oldham analyses the ruling.

There have been two recent decisions about local authority property search information sought in order to complete Home Information Packs, or HIPs.

In a judicial review application in the High Court, OneSearch Direct Holdings failed to persuade the court that City of York Council had a statutory duty to allow access to unrefined property search information (OneSearch Direct Holdings Ltd v City of York Council [2010] EWHC 590 (Admin) – this decision is the subject of a separate article, which can be seen here). The provisions considered did not, however, include the Environmental Information Regulations 2000.

A different approach, relying on the EIRs, was used by the requesting property search company, York Place, in the Information Rights Tribunal case of East Riding of York Council v Information Commissioner EA [2009] 0069 (decision 15 March 2010) in which York Place was joined as an interested party.

In East Riding the requester asked “to make arrangements to inspect the Building Control/Traffic Schemes abutting/Highway Schemes within 200m records in situ as soon as possible for the following land and buildings [named property]”.

The Tribunal held that this was to be construed as a request to inspect such information as would enable York Place to answer questions1.1 (f) – (h), 3.4 and 3.6 on the CON29R form, rejecting the Council’s contention that it was in fact a request to have access to and trawl through the Council’s building control, traffic schemes and highways schemes raw records generally in whatever form held by the Council, without any pre-filtering (for example, to ensure that data protection rules were not contravened by giving unrestricted access to information including personal data).

Before the Tribunal all parties agreed that this information was “environmental information” for the purposes of the EIRs and that regulation 5  of the EIRs imposes a duty, subject to certain provisions, to make such information available on request.

Of those provisions, some establish exceptions to the duty – the Council in this particular case did not rely on any of those. But it did rely on regulation 6, arguing that while York Place had asked to inspect “the records in situ”, it was not reasonable for the Council to have to allow unrestricted access to the Council’s original records in that way.  Instead it was reasonable for the Council to provide the information in a different form by extracting, collating, checking and if necessary (e.g. to preserve the data protection position) redacting the information and the Council could only be required to allow inspection of that prepared information.

The Council and the Information Commissioner agreed that York Place’s request to inspect the Council’s “records in situ” was for information in a particular form and that regulation 6 was in play.

But York Place argued that, under EIR regulations 5 and 8, the Council had an obligation to permit inspection of the requested information, without the right to make it available in another form even if that was otherwise a reasonable thing to do, so that regulation 6 was not potentially applicable at all. It relied on Article 3 of EU Directive 2003/4 on Public Access to Environmental Information (“the Directive”), which the EIRs were intended to implement.

York Place argued that this required the Tribunal to construe regulation 8 in a way that corresponds with the purpose it was evidently intended to achieve, namely to ensure that environmental information was available to everyone, even those who could not pay to have access to it.

The Tribunal rejected that argument, holding that regulation 6 was potentially applicable and not shut out in the way York Place contended. It noted that regulation 5 first sets out the broad obligation to make environmental information available, without specifying the means by which it should be made available or whether conditions may be imposed on those requesting it. Such specification is found in regulation 6 providing detail about how access may be provided (i.e. in accordance with the requesting party’s preference, unless it is reasonable to provide it in some other form) and regulation 8 setting out the circumstances when a charge may be made.

The Tribunal held that  regulation 8(2) does not create any separate obligation to permit inspection, but simply provides that, where the person making the request asks for the information to be made available by inspection then, unless the public authority has the right under regulation 6 to override that preference and to make the information available in the form of a copy, it may not make any charge.

That meant the Tribunal had to go on to consider whether, in this particular case, it was reasonable for the Council to refuse inspection of its “raw”, pre-unrefined, records. At this point, the decision becomes local authority-specific in that it is clear that different local authorities hold their pre-unrefined CON29R environmental information in many different ways. This can particularly be so for authorities which have a complex reorganisational history. Such authorities may inherit several predecessor authorities’ sets of records, some held in hard copy form, some in electronic form the databases of which have over time to be amalgamated. Some authorities will find it quicker and easier to change their systems than others.

The Tribunal held that it had to consider the position as at the date when the Request had been refused, (not as at the date of the hearing) and that evidence as to what other local authorities are doing at a later date in using technology to make environmental information available is not therefore likely to be relevant, except to the extent that it can be shown that those systems were already in use at the time of the request.

Significantly, the Tribunal held that that if a public authority is able to demonstrate that particular restrictions are reasonably necessary to prevent, for example, the inadvertent disclosure of personal data likely to be contained in certain types of record, it should be allowed to rely on a general practice intended to prevent disclosure across that range and should not be required to examine each request for information to see if it should be treated as an exception to the general rule. If the general rule can be shown to be reasonable, then the public authority should be entitled to apply it in all cases falling within its scope. The Tribunal cautioned, though, that the test to be applied is an objective one, and that its decision should not be regarded as a test case, applicable to requests for other types of information and/or other public authorities.

Turning to the particular evidence, matters considered by the Tribunal on the “reasonableness” issue included the need to protect personal data from disclosure and ensuring security of local authority data bases.

The Tribunal considered evidence of what other authorities had been doing in allowing access to such information, but was not prepared to conclude that the Council had been unreasonable in not having introduced such systems at the time the request had been dealt with. But it found that the Council had been unreasonable to the extent that it had failed to consider what if any steps along those lines it should take.

Nor, the Tribunal found, had the Council considered what steps if any it could take to allow inspection of records in situ with a member of its staff monitoring the requester’s inspection activity so as to prevent any searcher from seeing information that should not be disclosed, or what steps it might take to assess the cost and practicality of extending the licence given by its software supplier to allow a greater number of people to access the systems at any one time. This failure to consider such steps had been unreasonable.

Accordingly in this case the Tribunal was not satisfied that the Council had shown that it was reasonable to require York Place to accept the information in question in the form of a separate hard copy document for which it would charge a fee. It was therefore required to revert to York Place’s preferred form of access, namely inspection and under EIR regulation 8 (2) (b), it was not entitled to charge for that service.

However, the Tribunal considered the Council’s argument that it could assemble into a document information relevant to an enquiry, such as that comprised in the Request, from which it would then redact personal data or other information that the enquirer should not see and that if it then made the resulting document available for inspection, it would have satisfied the requirements of EIR regulation 6 (1) (a) and would be entitled to recover what it had cost it to create the copy for inspection (but not the cost of identifying or extracting from its records the information recorded in the document).

The Information Commissioner reserved his position on whether this would be a satisfactory approach to adopt in light of the charging regime created by the Local Authorities (England) (Charges for Property Searches) Regulations 2008.

The Tribunal stated that it may be that an arrangement to provide the relevant information in this form would have constituted a sensible compromise for the parties to reach – but did not rule on whether that would have been reasonable under regulation 6(1)(a) because it had not been a proposal in fact made by the Council in response to the Request at the time. The Tribunal therefore concluded that inspection should have been permitted of the limited information identified in its interpretation of the Request, and that this should have been without charge. That issue therefore remains open.

It is clear from this decision that local authorities would be wise to consider, in a documented way, how they would respond to a request for environmental information relevant to CON29R questions, whether they would allow inspection and if not, why and whether that approach would be reasonable in the context of the EIRs and Directive, and whether there are steps they could take that would enable inspection to take place without contravening sound policy reasons for requiring access in other ways.

Jane Oldham is a barrister at 11KBW (www.11kbw.com).