Introduction

The Information Commissioner's document Decision014-2017 which is published at: http://www.itspublicknowledge.info/ApplicationsandDecisions/Decisions/2017/201601954.aspx, and has been copied, Inserted comments are shown in red. The actual HTML code was copied on 8th February 2017.

Our conclusion is simple. The Commissioner relied upon The Ministers' assertion that the information requested was publicly available when in fact it was NOT.

In our view, there were two better alternatives. First: to state that there is no information; or Second: that the assessment of the available information was beyond her remit. Parroting the statement by The Ministers that the information is publicly available was probably wrong and definitely unhelpful.

The Information Commissioner  was sent our comments, and took those comments as an FOI. The response was simply the letter which had been sent from the Scottish Government on December 16th 2016. This has been briefly reviewed: it did not satisy the original request in any fair and reasonable manner - to wit no-one is any the wiser as to the legitimacyof Rathjen's Rule - see Water Charges - Scottish Administration Reviewed.

Information Commissioner's Decision and our Comments

Decision 014/2017: Eur Ing Richard Townsend-Rose and the Scottish Ministers

Water and sewerage charges

Reference No: 201601954
Decision Date: 25 January 2017

Summary

The Ministers were asked for information relating to their understanding of the law concerning non-domestic water and sewerage charges. The Ministers withheld the information on the basis that it could be reasonably obtained by the applicant otherwise than by requesting it under FOISA.

The Commissioner accepted that the information was otherwise accessible to the applicant.

The unchallengeable fact is that there is no information on the web, and which could be used in a Court of Law, which supports Rathjen's contention.


Relevant statutory provisions

Freedom of Information (Scotland) Act 2002 (FOISA) sections 1(1) and (6) (General entitlement); 2(1)(a) and (2)(a) (Effect of exemptions); 25(1) (information otherwise accessible)

The full text of each of the statutory provisions cited above is reproduced in Appendix 1 to this decision. The Appendix forms part of this decision.

Background

1. Eur Ing Townsend-Rose's (the Applicant) request related to previous correspondence from the Ministers to him, which included the following statement:

Where a property is part of a much larger building which is connected to public water and/or sewerage, then it may be liable for charges if it has access to services in the common parts of the building.

2. On 31 August 2016, the applicant requested the following information from the Ministers:

Please provide the recorded information which confirms that where a property is part of a larger building which is connected to public water and/or sewerage, then it may be liable for charges if it has access to services in the common parts of the building or similar words with the same effect.

3. The Ministers responded on 1 September 2016. The Ministers stated that the information was available to the public and provided links to various websites. The Ministers stated that, because they considered the information was reasonable accessible to the applicant, it was exempt from disclosure in terms of section 25(1) of FOISA.

4. On 2 September 2016, the applicant wrote to the Ministers requesting a review of their decision. The applicant did not consider that the information contained within the links evidenced the validity of the statement made to him previously by the Ministers.

5. The Ministers notified the applicant of the outcome of their review on 21 October 2016. The Ministers upheld their original decision without modification.

6. On 25 October 2016, the applicant wrote to the Commissioner. He applied to the Commissioner for a decision in terms of section 47(1) of FOISA. The applicant did not agree that the information contained in the links answered his request. Additionally, he considered the Ministers should hold correspondence on the matter between themselves and Scottish Water and the Water Industry Commission for Scotland (WICS).

The history of communications defined above is correct. However, there is no information on the web which might be used in Court to support Rathjen's contention.

Investigation

7. The application was accepted as valid. The Commissioner confirmed that the applicant made a request for information to a Scottish public authority and asked the authority to review its response to that request before applying to her for a decision.

8. On 30 November 2016, the Ministers were notified in writing that the applicant had made a valid application. The case was then allocated to an investigating officer.

9. Section 49(3)(a) of FOISA requires the Commissioner to give public authorities an opportunity to provide comments on an application. The Ministers were invited to comment on this application, and answer specific questions, in particular to clarify the steps they had taken in order to identify any relevant information falling within the scope of the request.

Commissioner's analysis and findings

10. In coming to a decision on this matter, the Commissioner considered all of the relevant submissions, or parts of submissions, made to her by both the applicant and the Ministers. She is satisfied that no matter of relevance has been overlooked.

It is impossible to comment on the Commissioner's Analysis as none of the information upon which it is based has been made available - unlike a Court of Law where every submission and argument is documented or referenced and generally made public.

Background submission by the Ministers

11. The Ministers stated that, as the Scottish Government did not make water and sewerage provision for businesses, they were reliant on the companies that did (Scottish Water and WICS) to ensure that any relevant information they held was consistent and accurate.

The above statement is erroneous. There are laws covering water and sewerage charges for non-domestic properties which the Scottish Parliament may amend by due process. This last happened with the 2012 Act. Noted that WICS is NOT a company but some sort of Quango.

It is up to the Ministers to ensure that such information is consistent and accurate. They have failed to do this. The Information Commissioner has failed to verify whether they have done this

12. The Ministers explained that the Water Industry Team in the Scottish Government had been in contact with the applicant previously and had endeavoured to explain the situation with regard to who controlled the charging system. They stated that they had sought to provide information held, with advice and assistance.

Rathjen and McCaskell, both of the Water Industry Team, provided innumerable links to documents on the web, but not a single link or document within any such link has any reference to changing the definition of Eligible Premises, let alone altering Section 27 of the 2005 Act.

Has all relevant information been identified?

13. As in any case where an application is made to the Commissioner, she must satisfy herself that adequate steps have been taken by the authority to identify and locate all of the information it holds and which falls within the scope of the request.

There is no information to be indentified probably because none exists. Certainly none exists in the public domain that may be found by diligent searching by someone with knowledge both of document management and control, and a knowledge of the web [viz someone registered as such by Google].

Searches

14. The Ministers explained the searches they had undertaken. They searched their electronic Records and Document Management system (eRDM). The Ministers identified the search terms and date parameters that had been used.

These search terms should be provided. Do they include "fuzzy" searches, or soundex searchs ?

In any event if the Commissioner's Decision is correct, there was no need for any search's to be carried out.

15. The Ministers stated that this was an issue which the Scottish Government's Water Industry Team was aware of as ongoing, so they knew where to locate any relevant information in the eRDM. The Ministers explained that key officials within the Water Industry Team were consulted; these officials had extensive knowledge of the industry and would be aware if there was any additional information held falling within the scope of the request. The Ministers confirmed that these officials were unaware of any additional information which might fall within the scope of the request. As a result of the searches carried out and the enquiries made of key officials, no additional information was identified.

It is known that the Water Industry Team are aware of the ongoing problems with the assessment of premises by Scottish Water's Revenue Protection Team as Eligible Premises per Section 27 of the 2005 Act, which have resulted in an excessive number of case comeing to Court. At Note 9 of the Chataroo case, the Dean of the Faculty Advocates commented that "this was but one of a not insignificant number of debt recovery cases raised by the pursuers [Scottish Water Business Stream] in this court".

Correspondence with other bodies

16. In his application to the Commissioner, the applicant suggested that the Ministers must have had correspondence or discussions with other bodies such as Scottish Water or WICS regarding this specific matter.

Rathjen stated on the telephone on more than one occasion that he was in daily contact with the Director of WICS. It thus most surprising that there are no notes of these conversations, which as is indicated by the Deputy Director's letter concerned about the subject FOI.

17. The Ministers stated that they had been provided with copies of previous FOI responses issued by WICS to the applicant. They also stated that there had been telephone conversations between their Water Industry Team, WICS and Scottish Water, to ensure that the information they were providing to the applicant was in line with current policy.

These FOI's - to which the answers were already known - were raised in order to ascertain the reliability [e.g. honesty, openness, truthfulness] of WICS.

18. The Ministers stated that, each year, Scottish Water submitted a detailed charging statement to WICS for approval; this must be within the limits set out in WICS's final determination of charges. The Ministers explained that both Scottish Water's detailed charging statement and the price limits must be consistent with the Principles of Charging Statement issued by the Ministers but, other than providing the Principles of Charging Statement, they had no involvement in the management of charges.

Water Charging has no relevance to Section 27 of the 2005 Act. The mis-classification of premises as Eligible Premises is nowhere mentioned.

19. The Commissioner has considered the Ministers' explanation of the searches and enquiries undertaken and why those searches and enquiries would have been likely to identify and locate any relevant information.

There is no published information that supports the statement made by Rathjen.

20. The Commissioner accepts that the Ministers undertook reasonable, proportionate searches and enquiries in order to establish any relevant information that they held. She accepts that any relevant information would have been identified using the searches and enquiries described by the Ministers. Given the Ministers' role in this process, and bearing in mind that the applicant's concern is essentially about the proper interpretation of the law (a matter for the courts), the Commissioner accepts that they are unlikely to hold further information on the matter.

Section 27 of the 2005 Act is so clear that no interpretation is required. Noted that Counsel's opinion leaves no dubaiety in the matter.

21. The Commissioner is satisfied therefore that the Ministers identified all of the relevant information they held when responding to the applicant's request.

Whereas the Commissioner might be satisfied, the fact that there are an excessive number of cases before the Courts suggests rather strongly othwerwise. Noted that Scottish Water Business Stream decline to sue occupiers of Eligible Premises where those occupiers would be entitled to Legal Aid.

Section 25(1) of FOISA - Information otherwise accessible

22. Under section 25(1) of FOISA, information which a requester can reasonably obtain other than by requesting it under section 1(1) of FOISA is exempt information. The exemption in section 25 is absolute, in that it is not subject to the public interest test in section 2(1)(b) of FOISA.

23. Therefore, the issue to be considered in this case is whether the information requested by the applicant can be reasonably obtained by him through means other than FOISA.

24. The Ministers submitted that the relevant information they held was to be found on the website links they provided to him.

The reason fior the FOI was to verify that  Water Industry Team which reports to Ministers were not holding any reacords of discussions etc etc.

Noted that the Water Industry Team were unable to identify exactly where the information upon which Scottish Water Business Stream have instructed their lawyers to rely upon in Court, which so far has been in vain.

25. The applicant submitted that, in his view, none of the information provided in the links justified the validity of the statement which was the subject of his request for information.

That view remains.

The Commissioner's view

26. Before setting out her conclusions, the Commissioner would note that it does not fall within her remit to comment on how the Ministers have chosen to interpret any information that they hold, or on whether they are entitled to make any public statements based on the information they hold.

That is well beyong the Commissioner's remit which is to obtain information upon which the Water Industry in general intends to rely.

27. Similarly, it is not in the Commissioner's remit to arbitrate in a dispute regarding the interpretation of any legislation. While she is aware that the applicant has concerns in this respect, the Commissioner's locus extends only to determining whether the Ministers complied with FOISA when responding to his request, and whether they identified all relevant information in doing so.

No interpretation was requested.

28. The Commissioner has considered the submissions made by both the applicant and the Ministers and the information contained in the links provided by the Ministers. Notwithstanding the applicant's belief that the information is incorrect and his view that the Ministers' interpretation of the law is incorrect, the Commissioner is satisfied that the links do contain the information identified by the Ministers as falling within the scope of the request.

That is a matter of interpretation. So far in each of the excessive number of defended cases in court, many of which have been in progress for over a year, lawyers for Scottish Water Business Stream have also failed to identify the necessary information.

29. The Commissioner is therefore satisfied that this information was, as a matter of fact, reasonably obtainable by the applicant. Consequently, the Commissioner concludes that the Ministers were entitled to withhold the information under section 25(1) of FOISA.

That is a valid decision, as long as the information requested is in fact available. The fact is none exists.

Decision

The Commissioner finds that the Scottish Ministers complied with Part 1 of the Freedom of Information (Scotland) Act 2002 (FOISA) in responding to the information request made by the applicant. The Ministers were entitled to withhold the information requested under section 25(1) of FOISA.

Appeal

Should either the applicant or the Ministers wish to appeal against this decision, they have the right to appeal to the Court of Session on a point of law only. Any such appeal must be made within 42 days after the date of intimation of this decision.

No infornmation has been disclosed which in any way alters Section 27 of the 2005 Act. 

Margaret Keyse
Head of Enforcement

25 January 2017


Appendix 1: Relevant statutory provisions

Freedom of Information (Scotland) Act 2002

1 General entitlement

(1) A person who requests information from a Scottish public authority which holds it is entitled to be given it by the authority.

(6) This section is subject to sections 2, 9, 12 and 14.

2 Effect of exemptions

(1) To information which is exempt information by virtue of any provision of Part 2, section 1 applies only to the extent that -

(a) the provision does not confer absolute exemption; and

(2) For the purposes of paragraph (a) of subsection 1, the following provisions of Part 2 (and no others) are to be regarded as conferring absolute exemption -

(a) section 25;

25 Information otherwise accessible

(1) Information which the applicant can reasonably obtain other than by requesting it under section 1(1) is exempt information.


Text of the letter sent to the Information Commissioner dated19 December 2016, and  received from the Information Commissioner on Friday 10th March 2017.

This letter does NOT answer the specific question raised. There is no benefit in making further comment. The Information Commissioner was requested to provide detailed Curriculum Vitae of the staff involved in making the response. The data provided was not adequate to determine if they were competent to make the decision that "the answer is on the web". There is no evidence that they verified the statement - which our research has determined that such evidence dows NOT exist.

APPLICATION FOR DECISION BY THE SCOTTISH INFORMATION COMMISSIONER
APPLICANT: Richard Townsend-Rose

Thank you for your letter of 5 December with regard to Mr Townsend-Rose's request:

'Please provide the recorded information which confirms that Where a property is part of a larger building which is connected to public water and/or sewerage then it may be liable for charges if it has access to services in the common parts of the building or similar words with the same effect'

Background

As the Scottish Government do not provide water and sewerage provision to businesses we are reliant on the companies that do (Scottish Water and Water Industry Commission for Scotland (WICS) to ensure that the information we hold is consistent and accurate. The Water Industry Team in the Scottish Government has been in contact with Mr Townsend-Rose since 7 January 2016. We have endeavoured to explain the situation with regard to who controls the charging system and sought to provide information held and provide advice and assistance. The relevant documents pertaining to the information requested here had already previously been provided and these were re-issued in response to this request.

Response to questions

1. Mr Brown's letter of 21 October 2016 to Mr Townsend-Rose refers to an email from Helen Fearon of 12 October. For the sake of completeness, I'd be grateful if you would provide a copy of this email.

2. Please clarify the steps taken to establish that all relevant, recorded information falling within the scope of the request was identified. In particular:

• What searches were carried out for information relating to the request? Please explain the extent of any searches and why these would have been likely to retrieve any information covered by the request.

• Please clarify which members of staff were consulted and explain why they would have been likely to know where relevant information was located.

• Please clarify which sets of records or data sources were included.

• In relation to electronic records, please explain what search terms and date parameters were used.

Searches were undertaken of the electronic Records and Document Management system (eRDM) using the keywords "Principles of Charging", "Scottish Water, scheme of charges" and "CMA market code" to identify the relevant documents. Date parameters were restricted to the current regulatory period, 2015-21.

Due to the nature of the request the searches were limited to information held by the Water Industry team. As this is an issue that has been ongoing officials were aware of the information held falling within the scope of the request and where to locate it in eRDM. We also consulted Jon Rathjen and Rosemary Greenhill, within the Water Industry team, as both have extensive knowledge of the industry and would be aware if there was any further information held falling within the scope of this request We also consulted a small number of other officials in the team who are familiar withthe relationship with Scottish water and what information we might hold with regard to charging. We are satisfied that all relevant staff members were asked if they were aware of any information other than that stored on eRDM that might fall within the scope of the request. No further information was identified.

3. I note the links from the Scottish Government website which were provided to Mr Townsend-Rose. Please clarify if any relevant information falling within the scope of the request is held relating to the creation or editing of these pages (e.g. discussions or advice regarding the content of these pages). If so, can this be provided to Mr Townsend-Rose?

The links provided to Mr Townsend-Rose are not Scottish Government controlled information. The Scottish Government does not set the scheme of charges and so our website links to both Scottish Water and the Water Industry Commission for Scotland for the relevant information. We provided the links to the information provided on the sites of these companies as this is in line with the Scottish Government's policy of avoiding duplication of information. As such, there is no information held falling withing the scope of the request in relation to the creation or editing of these pages.

4. Have any discussions or correspondence taken place with other bodies (such as Scottish Water, the Water Industry Commission for Scotland or CMA Scotland)? In particular, as Mr Townsend-Rose noted, Mr Irvine's letter of 29 September 2016 stated that the Ministers' approach had been endorsed by the independent economic regulator of Scottish Water. This suggests that there may have been discussions or correspondence with this body. I'd be grateful for your views on this.

A copy of our response of 20 January 2016 to Mr Townsend-Rose was sent to the CMA for information. The Water Industry Commission for Scotland (WICS) has sent the Water Industry team copies of its FOI responses to Mr Townsend-Rose. There have been telephone conversations between WICS, Scottish Water and the Water Industry team to ensure the information we were providing was in line with current policy. We are therefore content that the information provided accurately reflects the information provided to Mr Townsend-Rose in previous correspondence. With regards to Mr Irvine's letter, each year Scottish Water submits a detailed charging statement to WICS for approval. This must be within the price limits set out in WICS's Final Determination of charges and so is endorsed by WICS. Both Scottish Water's detailed charging statement and the price limits must be consistent with the Principles of Charging Statement issued by Scottish Ministers but, other than to provide the Principles of Charging Statement, we have no involvement in the management of charges.

I hope this is sufficient for you to complete your investigation, but please let me know if you need any further information.