London Motorists Action Group - FOI - Congestion Charge criteria for dealing with representations

Following protracted argument over whether or not to release this information Transport for London lost a review application to the Information Commissioner and were ordered to dislose the document.

Originally TFL refused to release the document arguing that the release would prejudice the exercise of TFL's functions and Freedom of Information Act exemptions under section 30 (Investigations and proceedings conducted by public authorities) and 31 (Law enforcement) were claimed.

The information commissioner agreed with TFL, but then the information tribunal overturned the information commissioner's decision and ordered the document be released.

The Information Tribunal decision Appeal Number: EA/2009/0061

The Congestion Charge Criteria for dealing with representations

Excerpts from the Tribunal Decision "TfL has provided a number of examples to support its conclusion that disclosure would be likely to prejudice its enforcement functions in relation to [penalty charge notices] by reference to the material contained in [the disputed document]. However as stated above due to the nature of this information the Commissioner has not provided further details of this evidence in this Notice. The examples are particularly sensitive as they provide definitive circumstances under which an appeal representation will be accepted or rejected. It is not possible to detail these arguments without disclosing the contents of the withheld information. However upon consideration of TfL’s arguments, the Commissioner is satisfied that this evidence does demonstrate that the prejudice to the function in 31(2)(c) is real and significant.

The Commissioner went on at paragraphs 38 to 42 to refer to various websites which indicate clearly that there are individuals who seek to manipulate the representation process and who would be willing to take advantage of any information they could in order to put forward false representations that might enable them illegitimately to avoid liability for a penalty charge notice. He concluded in effect that the disputed document may assist them in this way and that this would be prejudicial to TfL’s regulatory functions.

10. We have no doubt that if indeed there was a real and significant risk that the disputed document would assist such individuals in this way the necessary prejudice would be established. The question is whether the evidence establishes the existence of such a risk. In order to help it to test that question the Tribunal gave a direction (at paragraph 4 of the directions order dated 3 September 2009) that TfL should produce the publicly available guidance document and the disputed document and should give details of the examples referred to by the Commissioner in paragraph 37 of his decision notice.

11. The closed evidence of TfL in relation to paragraph 37 of the decision notice (which is given by Paul Cowperthwaite, Head of Contracted Services within their Congestion Charging and Traffic Enforcement Directorate) simply refers to an exhibit containing screen shots from various websites with commentary. These establish clearly and unsurprisingly that there are individuals prepared to go to great (and illegitimate) lengths to avoid liability for penalty charge notices. They do not, however, indicate how those individuals would be assisted by the disputed document. The Tribunal has also seen a letter from TfL to the Commissioner dated 26 March 2009 produced as part of the Commissioner’s closed material which sets out two specific areas where they say disclosure of the disputed document would prejudice their functions. We have read what is said in the letter carefully and it seems to us that, although the letter refers to some specific evidential problems faced by TfL in those specific areas, there is nothing in the relevant parts of the disputed document whose disclosure of which would make those problems worse. We have also read through the whole of the disputed document in order to see if we can identify any way in which it may help those intending to evade liability for a penalty charge notice but we have been unable to identify any (there are, for example, no cases where TfL staff are instructed to accept statements at face value without corroborating evidence); indeed our impression was that disclosure of the document to the public might positively assist (rather than prejudice) the whole process by making it clear to some would-be evaders that certain representations would have no prospect of success."

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