Decision
Mr X and National Transport Authority
From Office of the Information Commissioner (OIC)
Case number: OIC-143232-Z6B4N3
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-143232-Z6B4N3
Published on
Whether the NTA was justified in refusing access to records regarding the clamping of cars in a particular car park
1 July 2024
Further to section 7 of the Vehicle Clamping Act 2015 (the 2015 Act), the NTA’s functions include the regulation of clamping activities in clamping places. It also administers second-stage clamping appeals and investigates complaints relating to clamping. Private car park operators act as parking controllers under the 2015 Act.
The applicant’s FOI request of 25 April 2023 concerned a parking controller’s clamping activities at a particular carpark, and requested access to the following:
1. The number of vehicles clamped at the carpark for having “No Permit Displayed” for each of the years 2020, 2021, 2022 and the first quarter (Q1) of 2023.
2. The number of vehicles clamped at the carpark for non-payment of parking fees for each of the years 2020, 2021, 2022 and Q1 of 2023.
3. The number of clamped vehicle owners who appealed to the NTA in each of the above cases.
4. The number of appeals that were successful and their money returned.
5. Regarding the vehicles at (1) and (2) above, the number of appellants who cited signage issues as part of their appeal.
6. Any correspondence between the NTA and the relevant parking controller on the issue of signage in the relevant car park over the time period 2020 to end Q1 2023.
The NTA’s decision of 24 May 2023 refused parts 1, 2 and 5 under sections 36(1)(b) (commercial sensitivity) and 36(1)(c) (prejudicial to conduct or outcome of negotiations) of the FOI Act. It refused part 6 under section 32(1)(a)(i) (prejudice to investigative procedures). It purported to grant parts 3 and 4 of the request.
The applicant sought an internal review on 12 June 2023. The NTA’s internal review decision of 3 July 2023 affirmed its refusal of parts 1, 2 and 5. It granted access to correspondence covered by part 6, subject to the redaction of names of individuals. Although the NTA said that these names were exempt under section 27 of the FOI Act, it presumably intended to rely on section 37 (personal information).
On 19 October 2023, the applicant applied to this Office for a review of the NTA’s decision. During the review, the NTA provided the applicant with clarified details relevant to parts 3 and 4. It also released further records relevant to part 6, from which it withheld excerpts under section 37. I also outlined to the applicant why the NTA is now relying on section 15(1)(a) of the FOI Act in relation to parts 1, 2, 5 and 6, on the basis that the requested records/further records do not exist. The applicant subsequently confirmed that I need not further consider parts 3, 4 or 5, or any redactions made under section 37 of the FOI Act.
I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges, to correspondence between this Office, the NTA and the applicant, and to the provisions of the FOI Act.
The scope of this review is confined to whether the NTA’s refusal in full of parts 1 and 2, and its refusal to release further records relevant to part 6, is in accordance with the provisions of section 15(1)(a) of the FOI Act.
Parts 1 and 2
Section 11 of the FOI Act provides for a right of access to records held by FOI bodies. The Act does not generally provide a mechanism for providing information/answering questions, except to the extent that a request for information or a question can reasonably be inferred to be a request for a record containing the answer to the information sought or the question asked. Given that Parts 1 and 2 of the request seek information (numbers), they must be taken as requests for access to records that would provide the numbers concerned. It is the NTA’s position that it does not hold such records and that section 15(1)(a) of the FOI Act applies.
Section 15(1)(a)
Section 15(1)(a) provides that an FOI body may refuse to grant a request where the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken.
It is open to this Office to find that an FOI body has satisfied the requirements of section 15(1)(a) where it demonstrates that records that an applicant believes ought to exist have not been located or have not been created. The OIC has no role in examining the NTA’s performance of its functions, or whether it should hold the records that have been requested.
The parties’ arguments
The NTA says that Regulation 19 of the Vehicle Clamping and Signage Regulations 2017 provides for information that it may request from parking controllers, as follows:
i. “a full list of all clamping places under [a parking controller’s] control, setting out details of their location and parking capacity (if any), relevant charge or charges applicable (if any) and other such information as may be reasonably requested;
ii. evidence showing that the parking controller is the beneficial owner, lessee or occupier of a clamping place under his or her control or evidence showing that the parking controller is authorised by the beneficial owner, lessee or occupier to carry out clamping activities at that clamping place; and
iii. all or specified records relating to clamping activities which took place in clamping places set out in subparagraph (i).”
The NTA says that, further to Regulation 19, it requires parking controllers nationally to make annual returns, to be provided in the first quarter of the following year. It says that its requests for such returns focus on the appeal process maintained by the controllers in relation to clamping, and that it does not enquire into why clamps were applied. In turn, the NTA contends that it does not hold details of the numbers of cars clamped for either “No Permit Displayed” or non-payment of parking fees for the relevant years, such that section 15(1)(a) applies. In support of its position, it has supplied this Office with details of the relevant requests for returns for the years 2020-2022.
I informed the applicant of the NTA’s position as set out above. He queries why the NTA initially relied on section 36 if it did not actually hold relevant records. He asks if it is possible to merge questions 1 and 2 and get the total numbers of cars clamped at the relevant car park for some or all the relevant years, and for 2023 in full. He says that the NTA should have offered him these details if it did not hold the requested information. He says that it is odd that the NTA would not ask for numbers of vehicles clamped when seeking other details from parking controllers, and that the parking controller or their auditors or the NTA should have access to such information.
Analysis
As the applicant now knows, the NTA was obliged to deal with his FOI request as framed. Therefore, it was not open to the NTA to unilaterally merge parts of the request. Neither could it purport to grant parts 1 or 2 by providing alternative information/records. It is also important to note that an FOI request may be narrowed but not broadened. Furthermore, a request, and any subsequent review by this Office, only covers relevant records that existed on the date of receipt of the request. In addition, in the circumstances of this case, the FOI Act does not require the NTA to obtain information from the parking controller (a regulated entity) in order to grant the request.
It appears that the NTA did not identify whether it held the records sought at parts 1 and 2 before it relied on section 36 in its original decision. I have examined the NTA’s requests to car park controllers for annual returns for the years 2020-2022. I am satisfied that these support the NTA’s position that it does not look for or receive the types of information specifically sought at parts 1 and 2. I am also satisfied that they support the NTA’s position that it had received no returns for any part of 2023 as at the date of receipt of the FOI request. In turn, I am satisfied that the NTA does not hold any records containing the information sought at parts 1 and 2, such that those records do not exist. I find that section 15(1)(a) applies to parts 1 and 2.
Notwithstanding the above, I note that the NTA is willing to provide the applicant with certain additional information outside of FOI (total numbers of clamps applied in the relevant carpark for 2022 and 2023). It explains that it sought and received such details from car park operators for those two years, but not for previous years.
Part 6
The parties’ arguments
The NTA has partially released a clamping signage compliance evaluation report regarding the relevant car park, a related cover letter to the parking controller and a cover email. It has also partially released a 2021 letter to the controller, which concerns an appeal arising from a clamping in the relevant carpark. As noted earlier, the applicant is not seeking a review of the redactions. However, he particularly queries the lack of follow up letters arising from the evaluation report.
I do not intend to repeat all details of my correspondence with the applicant. In summary, the NTA says that there is no record held on file to indicate any follow-up of the report, and no record of communication between it and the parking controller to confirm that rectifications had been carried out. It notes that there was an increase in the number of appeals ‘not allowed’ after it issued its report, which it says indicates that the parking controller carried out the changes required of it.
The NTA says that, other than the general correspondence in relation to signage, it also corresponded with the parking controller explaining its determinations on individual appeals. It says that it received no appeals regarding the car park in 2020. It says that only one of the three allowed appeals concerning the car park in 2021 and 2022 had ‘signage compliance’ as a reason for the determination. As noted above, it has partially released its correspondence to the controller on this matter. It contends that there is no additional correspondence on the matter of signage for this car park.
Having regard to the NTA’s submissions and the applicant’s comments on the matter, I have no reason to query it further. I am satisfied that the NTA has taken reasonable steps to look for records covered by part 6 and/or that no further such records exist. I find that section 15(1)(a) applies to part 6.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the NTA’s refusal of parts 1 and 2, and its refusal to grant access to further records covered by part 6, on the basis that section 15(1)(a) applies.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.
Anne Lyons
Investigator