When information that our Council holds must be published freely, charging for it could be considered fraud.
The Local Government Transparency Code 2015 makes it clear at page 15, para 35 that Local authorities, including Folkestone & Hythe District Council, must publish details of all land and building assets including:
all future commitments, for example under an agreement for lease, from when the contractual commitment is made.
This would include any option agreements the Council may have with any landowner/farmer inside the Otterpool Park boundary
So our public face sent an Environmental Information Request to the Council in late August 2018. It asked for all the land the Council had future commitments on, inside the Otterpool Park boundary. In their initial acknowledgement the response states:
Please be aware that there is currently a fee of £25 per officer hour for recovering environmental information that is not recorded as a part of a public register or list of environmental information.
This policy was introduced by the former CEO Alistair Stewartand the Council and announced last Sept 2017. It became an active policy on the 1st April 2018.
In early September 2018 the Council responded and stated:
An initial estimate of 1 hour 30 minutes work to locate the requested information was provided, requiring a fee of £XX. XX This charge relates specifically to the time elapsed locating the materials requested.
The fact that a fee is necessary demonstrates, we believe, that the Council holds information regarding land inside the Otterpool Park boundary.
The Council response indicates they hold the requested information and wish to charge a fee. How can information; which according to the Local Government Transparency Code 2015 MUST BE PUBLISHED freely by the Council, allow the Council to make a charge?
(a) dishonestly fails to disclose to another person information which he is under a legal duty to disclose, and
(b) intends, by failing to disclose the information—
(i) to make a gain for himself or another, or
(ii) to cause loss to another or to expose another to a risk of loss.
The Council is under a legal duty to disclose the information requested in the Environmental Information Request, as the Local Government Transparency Code 2015 says it MUST be published. The fact the Council must publish then does NOT allow them to make a charge. So the council could be seen to be making a financial gain by requesting a fee and committing fraud by failing to disclose the requested information.
In the last few days the Council have announced that Folkestone & Hythe District Council’s Cabinetwill on the 18th Oct 2018 consider:
options for securing further parcels of land within the site of the proposed Otterpool Park Garden Town, including making recommendations on the formation of a company to hold the land. It also sets out the current budgetary positions and gives an overview of decisions likely in the near future.
Now it is clear from the language used by the Council “options for securing “further parcels of land” within the site of the proposed Otterpool Park Garden Town” makes it clear they must already have parcels of land agreed with landowners. This is supported by the fact they wish to charge our public face for this requested information.
So this is why we believe in our opinion the Council may be committing fraud. However, we are not lawyers and we are sure that the Council will give some explanation as to why they are charging for information which should be free and publicly available to us all. However, as always we’ll leave you to decide if the Council may be committing fraud.
