Urmenyi v Information Commissioner and London Borough Of Sutton [2007] UKIT EA_2006

Case No: EA/2006/0093

IN THE MATTER OF AN APPEAL TO THE INFORMATION TRIBUNAL
UNDER SECTION 57 OF THE FREEDOM OF INFORMATION ACT 2000

Determined at an Oral Hearing on 13^th June 2007
Promulgation date: 13 July 2007

BEFORE THE INFORMATION TRIBUNAL

Peter Marquand, DEPUTY CHAIRMAN
Jacqueline Blake and Jenni Thomson, LAY MEMBERS

B E T W E E N :

MR WILLIAM R URMENYI

Appellant
v.

THE INFORMATION COMMISSIONER

Respondent
and

LONDON BOROUGH OF SUTTON

Additional Party

Representation:

For the Appellant in person (in writing)

For the Respondent: Mr Akhlaq Choudhury, Counsel

For the Additional Party: Mr Damien Welfare, Counsel

DECISION

The Tribunal dismisses the Appeal for the reasons set out below. The
Tribunal has concluded that the Information Commissioner’s conclusion in
the Decision Notice that the London Borough of Sutton could not deal with
Mr Urmenyi’s request within the appropriate limit was correct, but for
different reasons.

REASONS FOR DECISION

Background

1. The central facts of this case concern issues over Penalty Charge
Notices (PCN) issued by the London Borough of Sutton. In

particular, PCN’s issued on the 1^st January 2005 and in the
preceding 6 months. If a PCN is issued, then the motorist has 14
days to write to the London Borough of Sutton (“the Council”) to
object to the issuing of the PCN. The Council may accept the
appeal and therefore no fine has to be paid or else reject those
representations, in which case the fine must be paid.

The Request for Information

2. Insofar as it is relevant to this appeal, Mr Urmenyi’s request for
information on the 5^th April 2005 was;

“I wish to know how many first stage appeals, against
PCN’s issued on New Year’s Day, were received by the
Parking Services. By first stage appeals, I mean those
initial appeals that are made before the penalty rises
from £40 to £80.

Please also tell me how many first stage appeals were
made, on average, against PCN’s issued other
Saturdays over a period of 6 months excluding any
Saturdays, which coincide with public holidays.”

3. By letter dated the 12^th April 2005, Mr Malcolm Simms, the then
Head of Parking Services, replied to Mr Urmenyi refusing to provide
the information. The relevant text is as follows:

“It is not possible to automatically interrogate the
penalty charge database to establish on a penalty
charge notice issue date basis whether we have had
representations, and at what stage they were received.
To determine this information will involve manually
checking each individual entry on the data base on the
relevant dates.

We estimate that in order to locate, extract and
amalgamate the information requested would take
more than 18 hours to complete, and would take the
cost of providing the information above the “appropriate
limit” of £450 as set out in the Act. We therefore
exercise our right not to supply this information in
accordance with section 12 of the Act.”

4. By email dated the 13^th April 2005 Mr Urmenyi applied to the
Council for a review of that decision. By letter dated the 6^th June
2005 from Chris Reid, Executive Head of Environmental
Sustainability, the Council again refused to provide the information
stating:

“From my discussion with Mr Simms, Parking Manager,
it is clear that the IT system used by Parking Services
cannot be interrogated to provide the data that you
seek. The only way of providing the data would be to
carry out a manual search of records. This would also
include the need to check notebooks to identify why
fixed penalty notices were cancelled. Notices may be
cancelled for a variety of reasons other than appeals –
for example where notices are spoilt or the vehicle
drove (sic) away.

I therefore regret that your request for information
submitted by email on the 5^th April cannot be met within
the cost limits set under the Freedom of Information Act
of £450. To obtain the data you requested would
require the physical examination of approximately 4000
records and correlating them with the Attendant’s note
books. The computer system does not have the
capacity to provide the information.”

5. By email dated the 26^th January 2006 Mr Urmenyi applied to the
Information Commissioner (“the Commissioner”) for a determination
of whether or not the Council had applied the Freedom of
Information Act (FOIA) properly. The Commissioner, in a Decision
Notice dated the 11^th December 2006, concluded that the Council
was correct in its reliance upon section 12 of FOIA namely that the
appropriate limit would have been exceeded in order to provide the
information requested. However, the Commissioner concluded that
the Council had failed to fulfil its duty to provide advice and
assistance to Mr Urmenyi under section 16 of FOIA. The
Commissioner’s conclusion was that there were two parts to Mr
Urmenyi’s request of the 5^th April 2005. The first part related to
information concerning the number of first stage appeals against
PCN’s issued on the 1^st January 2005 and the second part related
to the number of first stage appeals on the preceding six months
worth of Saturdays. Mr Urmenyi ought to have been advised that
the first part could be answered within the appropriate limit, but not
the second. Following discussions between the Commissioner and
the Council, the information requested in the first part of his request
was provided to Mr Urmenyi on the 22^nd November 2006.

The Appeal to the Tribunal

6. Mr Urmenyi appealed to the Tribunal on the 14^th December 2006.
The Tribunal joined the Council as an Additional Party. The appeal
was to be determined on the papers but in the light of materials
provided by the Council, the Commissioner applied for an oral
hearing. On the 26^th April 2007 the Tribunal ordered an oral
hearing and that the Council provide witness evidence concerning

terminology and how it had estimated the length of time it would
have taken to respond to Mr Urmenyi’s request.

7. Having initially wanted to attend the oral hearing, Mr Urmenyi
informed the Tribunal and the parties that he would not do so. The
Tribunal was satisfied with the reasons that Mr Urmenyi gave for
his absence and he provided detailed written submissions, which
the Tribunal took into account at the hearing on the 13^th June 2006.

8. The Tribunal was provided with a bundle of documents. The
Tribunal also had witness statements from Mrs Donna Ashby, who
has been head of Parking Services since April 2006 in place of Mr
Simms, and Miss Wendy Sheen, who in 2005 reported to Mr
Simms and is now Business Support Manager in Parking Services.
Mrs Ashby and Miss Sheen also gave oral evidence to the Tribunal.

The Issues

9. At a Directions hearing on the 20^th February 2007 the Tribunal
identified the issues in the appeal as follows:

a. Whether the Commissioner was given sufficient information
by the London Borough of Sutton to conclude that the
Council was entitled to rely upon the cost limit provided for
by section 12 FOIA;

b. Whether the Commissioner erred in his analysis of the
information provided by the London Borough of Sutton in
concluding that the costs limit provided for by section 12
FOIA applied to this request;

c. Whether the Commissioner erred in concluding that there
was no obligation on public authorities automatically to split
any request they received into different elements and
consider whether they could comply with any of those
elements within the section 12 costs limit;

d. Whether the Commissioner erred in failing to take any action
against the London Borough Sutton for their failure to comply
with their duty under section 16 FOIA.

The Tribunal’s Jurisdiction

10. The Tribunal’s remit is governed by section 58 FOIA and this is set
out below:

“58- Determination of Appeal.

(1) If on an appeal under section 57 the Tribunal
considers –

a. That the Notice against which the appeal is
bought is not in accordance with the law, or

b. To the extent that the Notice involves an
exercise of discretion by the Commissioner,
that he ought to have exercised his discretion
differently,

the Tribunal shall allow the appeal or substitute
such other notice as could have been served by
the Commissioner; and in any other case the
Tribunal shall dismiss the appeal.

(2) On such an appeal, the Tribunal may review
any finding of fact on which the Notice in
question was based.”

11. The starting point for the Tribunal is the Decision Notice of the
Commissioner but the Tribunal also receives evidence, which is not
limited to the material that was before the Commissioner. The
Tribunal, having considered the evidence (and it is not bound by
the strict rules of evidence) may make different findings of fact from
the Commissioner and consider the Decision Notice is not in
accordance with the law because of those different facts.
Nevertheless, if the facts are not in dispute, the Tribunal must
consider whether FOIA has been correctly applied.

Relevant law

12. Section 12 FOIA states:

“(1) Section 1(1) does not oblige a public authority to
comply with a request for information if the
authority estimates that the cost of complying with
the request would exceed the appropriate limit.”

13. The “Appropriate Limit” is then set out in the “Freedom of
Information and Data Protection (Appropriate Limited and Fees)
Regulations 2004” (the Regulations”) and these state at Regulation
3(3) that for a Public Authority, such as the Council, the appropriate
limit is £450.

14. Regulation 4 states:

“… (3) In a case in which this Regulation has effect,
the public authority may, for the purpose of its estimate,
take account only of the costs it reasonably expects to
incur in relation to the request in –

(a) determining whether it holds the information,

(b) locating the information, or a document which may
contain the information,

(d) extracting the information from a document
containing it.

(4) To the extent to which any of the costs which a
public authority takes into account are attributable to
the time of which persons undertaking any of the
activities mentioned in paragraph (3) on behalf of
the authority are expected to spend on those
activities, those costs are to be estimated at a rate
of £25 per person per hour.”

15. The references to £450 and £25 are not references to the fees that
may be charged to an applicant for information nor are they
references to the actual costs or rate of pay of any member of staff.
They provide a mechanism for calculating the time that represents
the appropriate limit. In this case £450 divided by 25 represents 18
hours. However, the public authority is not entitled to take into
account all activities that might be required to provide an applicant
with information, but only those set out in Regulation 4(3) a-d,
namely determining whether the public authority holds the
information, locating it, retrieving it and extracting the information
from any document. Those assessments are subject to a test of
reasonableness. Therefore, if a Public Authority, such as the
Council, estimates that it would take longer than 18 hours to
perform the four activities set out in Regulation 4(3), then it may
claim the exemption in section 12 and does not have to supply the
information that is sought.

16. It is clear from the wording of section 12 that it is for the Council to
estimate whether the appropriate limit would be exceeded. The
estimation is for the public authority to take based on the estimates
of the times for the individual activities allowed to be included by
the Regulation 4. The Commission and the Tribunal can enquire
into whether the facts or assumptions underlying this estimation
exist and have been taken into account by the public authority. The
Commission and Tribunal can also enquire about whether the
estimation has been made upon other facts or assumptions which
ought not to have been taken into account. Furthermore, the public
authority’s expectation of the time it would take to carry out the
activities set out in Regulation 4(3) a-d must be reasonable.

Terminology

17. During this request for information there has been confusion over
the terminology used by the Council. In this Decision, unless
otherwise stated or set out in quotations from documents, any
correspondence from a motorist to the Council following the issue
of a PCN is referred to as a “Representation”. Any correspondence
from a motorist to the Council following the issue of a PCN that
seeks to have the PCN cancelled before the charge for the PCN

rises at day 14 from £40 to £80 is referred to as a “First Stage
Appeal (FSA)”. Any appeal to the Parking and Traffic Appeals
Service is referred to an “Appeal”.

New computer software and hardware

18. A further complicating factor in the process of this request for
information is that in June 2006 the Council had a new server
installed to deal with the electronically held information that is
relevant to this Appeal. In addition, at the time of Mr Urmenyi’s
request for information the Parking Services used software called
“Parking Office for Windows” (POW). On the 11^th April 2006,
according to Mrs Ashby, the system was upgraded and changed to
“Parking Gateway”. Why this is relevant will become apparent
below.

Stages in coming to an estimate

19. The oral evidence given to the Tribunal by Mrs Ashby made it clear
that there were three stages to be undertaken in order to obtain the
information sought by Mr Urmenyi.

1. First, the number of PCNs issued for the day in question had
to be identified (“the First Stage”). Miss Sheen confirmed in
evidence that POW could not carry out this search for more
than one date at a time. If the Council wanted to collect the
number of PCNs issued on 24 Saturdays then 24 separate
enquiries would have to be made of the computer system.

2. POW did not record whether or not a motorist had made a
FSA. Mrs Ashby and Miss Sheen confirmed that this data
was not separately recorded. Therefore, in order to screen
out those PCNs where there had been no FSA, it was
necessary to identify those PCNs where there were
Representations (which may or may not be an FSA) and
those where there was not (which would definitely mean
there was no FSA). This is “the Second Stage”.

3. As no separate record of any FSA is kept in order to identify
whether a Representation was an FSA it was necessary
under POW (and still is under Parking Gateway) to read any
correspondence attached to a particular PCN in order to
identify whether it amounted to an FSA (“the Third Stage”).

Parking Office for Windows

20. Miss Sheen helpfully set out how POW operated. The first action
would be to carry out a search for the relevant day. This would
produce a front screen that listed the first PCN in the total number
for the day. By clicking on a button in the bottom right hand corner,

it was possible to move through the different PCNs that had been
identified as being issued on that day. In order to identify whether a
motorist had sent in Representations it was necessary to click on a
button in the bottom left hand corner entitled “correspondence”.
This opened up another screen; this produced a list which, if there
was correspondence from a motorist, would include the date on
which such correspondence had been received. However, it would
not identify who that correspondence was from or its content. In
order to do this it was necessary to view the actual piece of
correspondence by clicking on the scanned image, when it would
be opened to become capable of being read. Once that activity
had been undertaken it was necessary to go back to the front
screen and click to the next case and then repeat the process.

Issue (a) - Sufficiency of information provided to the Commissioner

21. In oral evidence to the Tribunal Miss Sheen said that she recalled
Mr Simms giving her a piece of paper with the date of the 1^stJanuary 2005 and six months’ worth of preceding Saturdays on it
and asking her how long it would take to identify the number of
appeals. It should be noted here that we cannot be sure at this
stage whether what was being referred to were in fact
Representations, FSAs or Appeals as defined by the Tribunal in
paragraph 17 above. In any case, Miss Sheen told Mr Simms that
there were 4,704 PCNs which would have to be looked at
individually to establish if an appeal had been made. She told him it
would take 30 second to look at each one of those in order to
establish whether there was correspondence, and if there was
correspondence, about 4-5 minutes to read any letter. She also
said it would take 40 minutes to put the information obtained into a
spread sheet.

22. The Commissioner’s Decision Notice was based upon various
pieces of correspondence with the Council. The conclusion was
that there would be an average of 80 PCNs with correspondence
for each of the Saturdays in the six month period and that it would
take 5 minutes per PCN to establish if it had been appealed. The
Commissioner, basing his calculations on there being 4,000
records for the relevant period concluded that it would take 160
hours to extract the data needed to meet the request and therefore
the appropriate limit was appropriately claimed (it will be
remembered that the appropriate limit is 18 hours).

23. In a response to the Commissioner, Annette Merton, Executive
Head of Business Services, provided Mr Slee of the
Commissioner’s office, with the estimate of 5 minutes to review
each piece of correspondence. In response to Mr Slee on the 28^thJuly 2006, Mrs Ashby who, at this point, was now head of Parking
Service in place of Mr Simms, responded to questions that had
been put to her by Mr Slee of the Commissioner’s office. In

response to the question “Roughly, how many of the 83 tickets
would you expect to be appealed?:” Mrs Ashby replied “25-30”. In
her oral evidence Mrs Ashby explained that she did not know how
she had come to that figure and said “there was a mistake made
there”. Part of the issue here may be the varying terminology used
by the Council. Mrs Ashby said that she could not have been
thinking of Appeals as in oral evidence she stated that only about
1% of those FSAs that are rejected go on to be such Appeals.

24. In answer to a question “how time consuming was it to arrive at this
figure of 83 tickets? Is this figure held on a database or were
manual records searched?” Mrs Ashby answered: “approximately
1 hour …”. In oral evidence Mrs Ashby said that this was a rough
estimate based on running the POW system, but that she thought it
was probably an underestimate. However, she deferred to Miss
Sheen as it was she who was used to using the system and had
provided the estimate.

25. Mrs Ashby also provided some written answers to questions that
were filed as part of this appeal following the directions given by the
Tribunal that the parties should lodge witness statements. The
document was not in the form of a witness statement, but in oral
evidence Mrs Ashby confirmed that she had completed the
document. In response to the question about how many FSAs had
been made against PCNs on New Year’s Day 2005 she replied:
“… 83 penalties with appeals (representations)”. However, in oral
evidence Mrs Ashby confirmed that at the time of drafting this
response she did not know that they were in fact FSAs, she had in
fact only identified that there were 83 Representations (i.e. 83
PCNs with correspondence). In answer to a further question in the
same document about how many FSAs were made over the six
month period prior to the 1^st January 2005, the response was:
“Over a period of six months 4704 PCNs (approx) 1-2 hours work)
were issued in Saturdays during the six month period. To check
how many had first stage appears – each record 30 seconds =
(2,352 mins).” However, again in oral evidence Mrs Ashby stated
that her estimate of 30 seconds referred to how long it took to
check whether each PCN had correspondence on it, not how long it
took to read each piece or correspondence to determine whether or
not it was an FSA (i.e. the “Third Stage”).

26. The Tribunal’s conclusion on the correspondence leading up to the
Commissioner’s Decision Notice, and even on the response to this
Appeal, is that the Council has not consistently applied the
definitions of the stages referred to in paragraph 17 above and not
consistently applied time estimates and the Commissioner was not
provided with sufficient information. However, the Tribunal wants to
make it clear that it does not believe that there is any suggestion of
dishonestly or improper conduct on behalf of the Council and, in
particular, on behalf of Mrs Ashby or Miss Sheen. It is simply

something that they found difficult to deal with. Accordingly, the
Tribunal does not find it possible to rely upon any of the written
materials that have been submitted and has based its conclusions
on the evidence provided at the oral hearing.

The total number of records

27. In oral evidence and in her witness statement, Miss Sheen said that
there were 4,704 PCNs however, Mr Welfare (counsel for the
London Borough of Sutton) conceded that this was too many and in
fact represented seven months’ worth of Saturdays and not six
months. His submission was that the correct number was 4,266.
However, as we have already stated above, the Decision Notice
was based on 4,000, which was based on information provided
originally by the Council. Mr Urmenyi’s outstanding request is, in
itself, open to some interpretation about which precise Saturdays
are included. We do not think it is necessary to be as precise as
the Council urge us to be as this is a process of estimation and we
are going to proceed on the basis that 4,000 is the correct figure to
use.

Issue (b) - The average number of FSA and the Commissioner’s
analysis of the information provided by the Council

28. It is convenient to look at the estimates of time for identifying the
information sought by Mr Urmenyi with reference to the three
stages identified by Mr Welfare, referred to in paragraph 19 above.
Mrs Ashby, in her oral evidence, stood by her estimate that it would
take one hour to identify the number of PCNs issued on the
Saturdays other than the 1^st January 2005 identified by Mr Urmenyi.
However, in her evidence she deferred to Miss Sheen as being in a
better position to help the Tribunal on all issues in respect of the
POW. However, Miss Sheen in evidence said that it would take
about 10 seconds to establish the number of PCNs for each of the
Saturdays. Miss Sheen pointed out that she would have to record
the total number on a piece of paper, as the computer system did
not allow a cumulative list of the PCNs for each Saturday requested
to be kept open on the screen. In other words, each set of
Saturdays had to be looked at independently. Nevertheless,
assuming that there are 24 Saturdays to be looked at (excluding
those relating to a Bank Holiday). The total time taken for the First
Stage would only amount to 240 seconds.

29. In relation to the Second Stage again, Mrs Ashby deferred to Miss
Sheen. In her statement Miss Sheen said that it would take 30
seconds to inspect each of the records on the POW to establish
whether or not it had relevant correspondence. In oral evidence
Miss Sheen stated that she tested the 30 second estimate that she
had given on the new system, which was in her view faster than the

old one. It had taken 20 seconds to carry out this task, but in her
view it was approximately 10 second faster than POW. Miss
Sheen confirmed that she timed this using her watch. Miss Sheen
accepted that it might not have been exactly 20 seconds on each
occasion, perhaps 18 seconds and that she had rounded up to 20
seconds. However, Miss Sheen also accepted that the timing with
her watch had only been carried out on the first case and not for
subsequent cases. In other words, it included the time that it took
for various programmes to load in order to view the particular
information. She accepted that in relation to the new system it
would have taken a couple of seconds to look at subsequent cases
and identify whether they had correspondence attached to them.
However, in relation to POW she was not able to say how long it
would have taken to look at subsequent cases but was of the view
that it would be slower.

30. At this point, it is worth pointing out that Miss Sheen’s evidence was
that POW was a significantly slow programme and that on occasion
the whole system would “crash” i.e. the screens would freeze and it
would be necessary to start all over again. However, Miss Sheen
was not able to say that it was likely that the system would crash
during the searches that were to be undertaken, but that this was a
regular occurrence.

31. In relation to the Third Stage, namely actually reading
correspondence, Miss Sheen’s estimate was that it took 4-5
minutes to read the correspondence to establish whether or not the
correspondence actually was a FSA. Miss Sheen said that
sometimes it was not clear until the end of the correspondence that
in fact it was an FSA. However, she accepted that in fact it was not
necessary to read all of the correspondence in detail to determine
whether or not it was an FSA. First, any correspondence received
14 days after the issuing of the PCN would not be an FSA.
Secondly, Miss Sheen accepted that there was no need to read
each individual letter in detail but only to look at the initial part of the
letter and the end of the letter in order to determine whether it was
an FSA. In those circumstances, her view was that an estimate of
two minutes for each piece of correspondence would be sufficient
to determine whether or not it was an FSA.

32. In order to establish how many of the 4,000 PCNs would have
FSAs it is necessary to estimate the percentage that would
represent FSAs. In the original Decision Notice the Commissioner
had relied upon the percentage calculated from the 1^st January
2005. In fact, this was potentially erroneous because at that time
the Council did not actually know that the 83 representations
amounted to FSAs, but by good fortune for the Council, they are
now able to say that they did. Miss Sheen said that she had taken
a particular day, namely the 3^rd December, and for the purposes of

this appeal, inspected the correspondence and established that
20% was the proportion of PCNs that amounted to FSAs.

33. It was accepted in evidence by Miss Sheen that the 1^st January was
a higher proportion at 30%.

34. It was also accepted in oral evidence by Miss Sheen and by Mrs
Ashby, that approximately 1% of the Representations did not
amount to FSAs.

The submissions

35. Mr Welfare’s submissions on behalf of the Council were that 30
seconds was a reasonable estimate and that taking that time alone
for the Second Stage, the appropriate limit was exceeded at 33⅓
hours. However, his submission was that, although the Council
could not prove absolutely where the 5 minute estimate originally
came from, it was still a reasonable estimate. The old system was
slower, it would take two minutes to find correspondence on the
new system, it might be necessary to look at parking attendants’
notebooks and also there was the possibility of bringing in
temporary staff to carry out the task. Mr Choudhury’s submissions
for the Commissioner were that the whole process was to be
estimation. It was not a statistical analysis of all data. It was not
necessary to calculate the precise number of seconds and that a
moderate degree of accuracy was required, something in the order
of plus or minus 5 seconds and there was no call for a greater
degree of accuracy, which would be unrealistic.

36. Mr Choudhury’s submission continued that on that basis, 30
seconds was not unreasonable for the Second Stage and based on
4,704 records, the time taken would be far more than the
appropriate limit. Mr Choudhury also submitted that 5 minutes was
not unreasonable for the Third Stage to look at whether or not there
was an FSA by reading the correspondence. This is the case in
particular because of the number of records involved.

37. Mr Urmenyi’s written submissions, which were considered by the
Tribunal at the hearing, were essentially that it was unbelievable
that reviewing these records would take so long. A lot of Mr
Urmenyi’s calculations relied upon the evidence that Mrs Ashby
had given, referred to in paragraphs 21-26 above. However, as we
have already said, it is simply not possible to rely upon any of that
material. Mr Urmenyi’s submissions can be summarised as
follows:

(i) It is not reasonable to rely on New Year’s Day for the 1^stJanuary 2005 as that was an exceptional day in that a lot of
people assumed that parking would be free because it was
New Year’s Day.

(ii) Mr Urmenyi’s view was that 10.7% of PCNs issued would be
appealed. However, as we have said above, this was based
upon unreliable information provided by the Council.

(iii) It would only take 43 seconds on each case where there was
correspondence, to establish whether or not it was an FSA
(the Third Stage). Again, this was based on previous
information provided by the Council, which the Tribunal has
already found to be unreliable.

(iv) In relation to reviewing each records, (i.e. the Second Stage)
Mr Urmenyi’s view was that 2 seconds would be required.

38. The Tribunal’s conclusions on the evidence are as follows. The
Tribunal agrees with Mr Urmenyi’s general submissions, to the
extent that the times initially provided by the Council were
inaccurate estimates as they did not take into account the
circumstances in which the estimates had been arrived at. We are
not clear why the period of one hour was arrived at in relation to the
First Stage. Miss Sheen was clear that it would only take 10
seconds for each Saturday that had to be looked at and we can
only presume that the figure of one hour was arrived at because of
confusion amongst the different individuals concerned about what
information was being asked for. In any event, the Tribunal is
satisfied that in order to establish the total number of PCNs in
relation to the Saturdays prior to the 1^st January 2005 an
appropriate estimate would be 240 seconds or 4 minutes. Clearly
there would be some extra time here whilst that number was written
down and it would not be possible to do each search immediately
following the other. Nevertheless, that should not add much more
time. We do not find it necessary to say exactly how much, but the
Council’s original estimate for this part of locating the information
was unreasonable.

39. In relation to the timings of the Second Stage, we again find that
the Council was in error because it had not sufficiently considered
what Miss Sheen had actually estimated. Miss Sheen had
estimated the time that it took to look at the first record, which was
going to take longer than each subsequent record because of the
need for various programmes to be “loaded up” when looking at the
first PCN. Subsequent inspection would have been quicker,
although the Tribunal is of the view that given the number of
records there would have been some flexibility as it is not
reasonable to expect 4,000 to be inspected at exactly the same
time and as efficiently at the end of the process as at the beginning.
The Tribunal notes that Miss Sheen had actually timed the process
on the new system and although it is not possible to conclude that
the POW would have “crashed” or to establish exactly how much
time it would have taken under the POW, bearing in mind the extra
steps needed in the POW to look for correspondence and the
number of records that would have to be looked at, we are of the
view that something in the region of 15 seconds would be an

appropriate estimate to review each record to identify whether or
not it had correspondence.

40. In relation to the Third Stage, the Tribunal is of the view that the
Council was in error in not questioning Miss Sheen further about
her estimate of five minutes. The Tribunal’s conclusion is that it is
not necessary to look at each piece of correspondence in its
entirety to establish whether or not it is an FSA, and to this extent
we agree with Mr Urmenyi. However, Miss Sheen’s evidence was
that it would take approximately two minutes to look at the
correspondence for this purpose. This was her evidence and we
think that the Council should have taken into account the fact that
she was initially considering that it was necessary to read all of
each letter and not simply consider whether or not it amounted to
an FSA. Therefore, that aspect of her evidence was an irrelevant
consideration for the Council.

41. As to the percentage of PCNs that are subject to FSA, the
Tribunal’s conclusion is that the reasonable estimate to take is
20%. The Council and the Commissioner erred in relying upon the
30% to the 1^st January 2005 as it was an exceptional day, but Mr
Urmenyi’s calculation of 10.7% is based on figures that cannot be
relied upon and is an under-estimate. In our view the best
evidence upon which an estimate can be compiled is Miss Sheen’s
review of the 3^rd December, namely 20% of PCNs were appealed.
Again, it is our view that the Council took into account irrelevant
material based on an exceptional day, namely the 1^st January 2005.

42. Taking all of the above into account, the Tribunal’s conclusion is
that the First Stage would have taken something in the region of 4-
6 minutes. The Second Stage would have taken something in the
region of 15 seconds per record, which comes to 16 hours and 40
minutes. Out of the 4,000 PCNs, 800 would have been FSAs,
which would have taken something in the order of 26 hours and 40
minutes to review for the Third Stage. The totality therefore does
exceed the appropriate limit.

43. In conclusion therefore, although it is the Tribunal’s view that the
Council erred in not questioning the estimate that had been given, it
is the Tribunal’s view that even if they had taken into account the
relevant facts, the appropriate limit would still have been easily
exceeded.

44. Mr Urmenyi, in his submissions, raised various other matters which,
for completeness, we deal with:

(i) Mr Urmenyi questioned whether querying the database
using “SQL query language” would have been faster. Whilst
the Tribunal did not have any evidence before it about what
“SQL” meant, it was clear that the Council did not in fact

have any other method of querying their database other than
the one described above.

(ii) The Tribunal agrees with Mr Urmenyi that it does not seem
relevant to examine the notebooks of parking attendants.
The evidence was that some PCNs were cancelled by
parking attendants on the spot, or otherwise invalidated.
Those might appear as PCNs on the database but should
not properly be counted. It seemed to the Tribunal that
those were irrelevant to the estimations that were provided
and would not have made any material difference.

(iii) The Council initially said that it would take 40 minutes to put
the data requested by Mr Urmenyi into a spreadsheet. Mr
Urmenyi said that a spreadsheet was not necessary and the
Tribunal has not found it necessary to consider this given the
fact that the conclusions are that the appropriate limit is, in
any event, easily exceeded.

(iv) The PCN fine automatically increases at day 14 from £40 to
£80. However, if an FSA has been made the potential fine
remains at £40 until the outcome of the FSA. Mr Urmenyi’s
submission was that it must, therefore, be possible to search
on those PCNs where the fine did not increase at day 14.
Miss Sheen and Mrs Ashby explained this was not possible
as the deferment of the increase from £40 to £80 was put in
manually to POW. In addition, there were various reasons
for a deferment, not just an FSA. The Tribunal’s conclusion
is that this would not have helped in identifying the
information sought.

45. Mr Urmenyi has made various allegations that various members of
staff have not told the truth in the course of this appeal and in the
course of other proceedings. The Tribunal wants to make it clear
that the Tribunal was satisfied that those who gave evidence before
it did so honestly and to assist the Tribunal as best they could. It is
the Tribunal’s view that a lot of the confusion has arisen out of
differences in terminology and individuals not understanding what
was being referred to by others when requesting information, due to
confusion over that terminology. The Tribunal found no reason to
suspect dishonesty or a deliberate attempt to mislead anybody.

Issue (c) - Are Public Authorities obliged to consider each
component part of a request for the purpose of determining whether
each part exceeds the cost limit?

46. The Commissioner’s submissions were that there was no obligation
to divide up a request for the purposes of determining whether it
exceeded the appropriate limit. The “Freedom of Information and
Data Protection (Appropriate Limits and Fees) Regulations”

provided for the aggregation of requests and to split up requests
that were similar would render this part of the regime defunct. The
Council supported the Commissioner’s submissions. Mr Urmenyi
did not address this in his skeleton argument.

47. The Tribunal’s conclusion is that where more than one request
relates to the same or similar information, there is no obligation on
a public authority to “split up” a request and answer each piece
individually. To do so would defeat the purpose of the Freedom of
Information and Data Protection (Appropriate Limits and Fees)
Regulations 2004 No. 3244. It may be a different matter for a
single document that includes requests for different sorts of
information. However, this is where the duty to provide advice and
assistance under section 16 of the FOIA comes into play and a
public authority ought to provide such advice and assistance to
clarify the nature of the request and determine what information
might be provided.

48. The Tribunal does not find that the Council was under an obligation
to divide up Mr Urmenyi’s request in relation to six months worth of
Saturdays preceding the 1^st January 2005, but we do find that there
was an obligation to provide advice and assistance.

Issue (d) - Whether the Commissioner erred in failing to take any
action against the Council for its failure to comply with its duty under
Section 16 FOIA

49. The Commissioner’s submissions were that as the Council
provided the information in relation to the first part of the request,
there was no need to go any further in relation to the duty to
provide advice and assistance. The Council apologised to the
Tribunal for not having provided the advice and assistance and
stated that, as it had provided the information in relation to the first
part of the request, there was nothing more that needed to be done.
The Tribunal’s conclusion is that it would have been open to the
Commissioner to require the Council to provide further advice and
assistance to Mr Urmenyi. It might have been possible for the
Council to provide information not relating to six months worth of
Saturdays, but for a shorter period that could have been dealt with
within the appropriate limit. It might have been possible for the
Local Authority to provide an estimate, as opposed to an exact
number of FSAs. However, this is all academic as the facts are
now over two years old. Shortly before the hearing, the Council
offered to provide Mr Urmenyi with the information in order to try
and prevent the appeal from going ahead, but Mr Urmenyi has not
accepted that proposal and wishes the appeal to proceed. There
would be no purpose in requiring the Council to provide advice and
assistance at this stage and therefore we do not do any more than
note that in our view, the Council should have provided further
advice and assistance.

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	United Kingdom Information Tribunal including the National Security Appeals Panel
You are here: BAILII >> Databases >> United Kingdom Information Tribunal including the National Security Appeals Panel >> Urmenyi v Information Commissioner and London Borough Of Sutton [2007] UKIT EA_2006_0093 (17 July 2007) URL: http://www.bailii.org/uk/cases/UKIT/2007/EA_2006_0093.html Cite as: [2007] UKIT EA_2006_0093, [2007] UKIT EA_2006_93



	Case No: EA/2006/0093 IN THE MATTER OF AN APPEAL TO THE INFORMATION TRIBUNAL UNDER SECTION 57 OF THE FREEDOM OF INFORMATION ACT 2000 Determined at an Oral Hearing on 13^th June 2007 Promulgation date: 13 July 2007 BEFORE THE INFORMATION TRIBUNAL Peter Marquand, DEPUTY CHAIRMAN Jacqueline Blake and Jenni Thomson, LAY MEMBERS B E T W E E N : MR WILLIAM R URMENYI Appellant v. THE INFORMATION COMMISSIONER Respondent and LONDON BOROUGH OF SUTTON Additional Party Representation: For the Appellant in person (in writing) For the Respondent: Mr Akhlaq Choudhury, Counsel For the Additional Party: Mr Damien Welfare, Counsel DECISION The Tribunal dismisses the Appeal for the reasons set out below. The Tribunal has concluded that the Information Commissioner’s conclusion in the Decision Notice that the London Borough of Sutton could not deal with Mr Urmenyi’s request within the appropriate limit was correct, but for different reasons. REASONS FOR DECISION Background 1. The central facts of this case concern issues over Penalty Charge Notices (PCN) issued by the London Borough of Sutton. In

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	CONCLUSION This Appeal is dismissed. The Information Commissioner’s conclusions in the Decision Notice that the London Borough Sutton could not deal with Mr Urmenyi’s request within the appropriate limit was correct, although the Tribunal has come to this finding on different facts and for different reasons. Signed Peter Marquand Deputy Chairman 13 July 2007

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United Kingdom Information Tribunal including the National Security Appeals Panel