Agenda Item No 7

The Vale of Glamorgan Council

Corporate Performance and Resources Scrutiny Committee: 20th September, 2018

Report of the Monitoring Officer and Head of Legal and Democratic Services

Charging for Information

Purpose of the Report

  1. To inform Members that the Council can charge for making Environmental Information available to requestors and to progress a new charging policy in this respect. The policy will also update the Freedom of Information Act charging to clarify that the Council will not process requests which take more than 18 hours of staff time to complete. It will also update the charging position on requests for personal information under the General Data Protection Regulation.

Recommendation

It is recommended that the Scrutiny Committee (Corporate Performance & Resources) review the policy at Appendix A and provide any comments to Cabinet prior to the Cabinet reaching a final determination.

Reason for the Recommendation

To enable the Scrutiny Committee (Corporate Performance and Resources) to undertake pre-decision scrutiny of the Charging for Information policy which is to be considered by Cabinet and to ensure the Council's Policy on charging for information reflects the changes in the law and promotes the efficient use of staff time to support service provision.  

Background

  1. Access to information requests to the Council are administered either under the Freedom of Information Act 2000 or the Environmental Information Regulations 2004. Individuals requesting their own personal information are now administered under the General Data Protection Regulation as supplemented by the Data Protection Act 2018.
  2. Previously the Council analysed the number of requests being received by the Authority and 41% were requests under the Environmental Information Regulations.
  3. The Environmental Information Regulations define environmental information extremely widely including air, atmosphere, water, soil, land, landscape, natural sites.  It also includes factors such as noise, energy, waste and also includes administrative measures and policies affecting same. It also includes the state of human health and safety.
  4. The Regulations have always provided that an Authority may charge a reasonable amount for making environmental information available.
  5. An issue arose as to whether this could include staff costs. However as a result of a   European Court ruling, this has been clarified and Public Authorities can make a  reasonable charge and that can include the costs of staff time taken to locate information and put it in an appropriate format for disclosure and the disbursement costs in transferring the information to the applicant. 

Relevant Issues and Options

  1. The majority of costs in processing Environmental Information Requests are for staff time, accordingly the policy includes this. It is proposed that the Council will charge for the time spent by staff in answering an individual request which will include time spent on searching for the information and putting it in the form required by the requestor.
  2. There are some items under the Regulations that cannot be charged for, namely access to public registers or lists of environmental information held or examination of the information in situ however in respect of the latter Authorities can still charge for locating the information to be examined in situ. 
  3. The costs associated with maintaining a database of information are deemed not related to an individual request and therefore cannot be recovered. 
  4. Only a reasonable charge can be levied by the Authority and that charge must not have a deterrent effect or otherwise to prevent access to environmental information.
  5. The Information Commissioner's Office had previously intimated that an administrative charge of £25 per hour for staff time in locating information is reasonable. Provision also has to be built in to any charging scheme so that it is not regarded as detrimental. 
  6. The European case law sets out that in determining detrimental effect account must be taken both of the economic situation of the person requesting the information and the public protection of the environment. Accordingly a mechanism has been included in the proposed policy in that the Information Manager (Lawyer), will  be given delegated authority to make this assessment in relation to the hardship of the individual requestor and protection of the environment.  This would have to be administered on a case by case basis.
  7. Freedom of Information - It has always been the case under the Freedom of Information Act that Authorities are not obliged to deal with requests that exceed 18 hours in locating the information. This however provided discretion, in that we could charge for information in excess of this. The policy clarifies this and proposes that the Council will not provide the information if it takes more than 18 hours to process given the impact this would have on service delivery. This will assist Officers in having a clear corporate policy on the issue. The policy provides locating, retrieving extracting information are to be considered in the assessment.  
  8. Data Protection (subject access requests) - These are requests where people request their own information. Under the previous Data Protection Act there was a charge for this in the sum of £10.00.The new General Data Protection Regulation abolished this and accordingly we can now only charge if the request is considered manifestly unfounded or excessive. The proposed policy reflects this change.               

Resource Implications (Financial and Employment)

  1. The Council cannot make a profit on charging for information however with Environmental Requests it should cover officer time in responding in most cases.
  2. The policy is consistent with the Council's Income Generation and Commercial Opportunities Strategy. The Policy has been designed to work towards recovering the costs (where lawfully permitted to do so) of providing information as defined within the proposed Policy.

Sustainability and Climate Change Implications

  1. The Policy is cognisant of the Well-being of Future Generations Act. The underpinning European legislation is intended to protect the environment. The policy has taken into account the need for the Council to consider the longer-term when providing services and the sustainability of services at a time of diminishing budgets.

Legal Implications (to Include Human Rights Implications)

  1. The legal implications are set out within this report.

Crime and Disorder Implications

  1. None directly applicable.

Equal Opportunities Implications (to include Welsh Language issues)

  1. The policy would be applied equally.

Corporate/Service Objectives

  1. To ensure an appropriate policy is in place.

Policy Framework and Budget

  1. To ensure efficient use of Council resources. 

Consultation (including Ward Member Consultation)

  1. No Ward Member consultation has taken place given the nature of the proposed report.

Relevant Scrutiny Committee

  1. Corporate Performance and Resources.

Background Papers

The Environmental Information Regulations 2004

The Information Commissioner's Guidance Charging for Environmental Information

East Sussex County Council vs The Information Commissioner and other parties Property Search Group, Local Government Association. Case C-71/14

The General Data Protection Regulation.

 

Contact Officer

Tim Cousins, Information Manager ( Lawyer )

Officers Consulted:

Income Generation and Commercial Opportunities Board. 

Responsible Officer:

Debbie Marles

Monitoring Officer/Head of Legal and Democratic Services.