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7.27 The Director replied on 30 January and apologised for VOA's failure to notify the Ombudsman any earlier of several matters relevant to the investigation. He gave an additional explanation of the statutory background regarding the provision to a valuation officer of trade information concerning public houses.  He explained that the information contained in the 1990 guidance had been compiled from information collected for the purposes of determining rating assessments. This information had in turn been obtained under the General Rate Act 1967 and the Local Government Finance Act 1988 (which replaced the General Rate Act 1967 in July 1988). The Director said that, while there was no explicit statutory guarantee in either act that the information provided would be kept confidential, the circumstances in which the information could be released was very specific under each of them.  

7.28 The Director said that under section 82 of the General Rate Act 1967 information was sought by sending 'rent returns' to occupiers of non-domestic property so that relevant details could be obtained. Section 83(4) of that Act said that information provided under section 82 could not be used in proceedings relating to the valuation of (inter alia) public houses. There was, therefore, no provision in the Act for ratepayers to see 'rent returns' in relation to properties valued on a 'profits' basis such as a public house and, in VOA's view, this meant that the information was confidential. This legislation is set out below.  

7.29 Section 82 (1) of the General Rate Act 1967 ('Power for valuation officer to call for returns') states:

(1) 'In every case where a new valuation list is to be made for any rating area, the valuation officer may serve a notice on the occupier, owner or lessee of any hereditament or premises in the area, or on any one or more of them, requiring him or them to make a return containing such particulars as may be reasonably required for the purpose of enabling him accurately to compile the list.'  

Section 83 of the 1967 Act concerns the 'Use of returns as evidence'. Sub-sections (2 - 4) state:  

(2) 'Subject to the following provisions of this section, any return to which this section applies shall in any valuation proceedings be admissible as evidence of the facts stated in the return; and any document purporting to be a return to which this section applies shall, in any valuation proceedings, be presumed, unless the contrary is shown -  

(a)     to be such a return;  

(b)     to have been made by the person by whom it purports to have been made; and  

(c)     if it purports to have been made by that person as occupier, owner or lessee of a hereditament, or in any other capacity specified in the document, to have been made by him as such occupier, owner or lessee, or in that other capacity, as the case may be.  

(3) Returns to which this section applies shall not be used by or on behalf of the valuation officer as evidence in any valuation proceedings unless -  

(a)      not less than fourteen days' notice, specifying the returns to be so used and the hereditaments to which they relate, has previously been given to the person who made the proposal to which the proceedings relate (where the proposal was not made by the valuation officer) and to every person who has served, and has not unconditionally withdrawn, a notice of objection to the proposal; and  

(b)      the valuation officer has permitted any such person, who has given not  less than twenty-four hours' notice of his desire to do so, to inspect at any reasonable time, and to take extracts from, any of the returns specified in the notice under paragraph (a) of this subsection.  

(4) Subsections (2) and (3) of this section shall not apply to any proceedings relating to the ascertainment of the net annual value of a heriditament on the profits basis:  

Provided that this subsection shall not be construed as preventing the use of any return in any such proceedings in circumstances where the return could be so used apart from this section'.

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7.30 The Director also set out his understanding of the position with information collected under paragraph 5(2) of Schedule 9 of the Local Government Finance Act 1988. He explained that the provision in section 83(4) of the General Rate Act 1967 was not replicated in the 1988 legislation (nor in any Orders or Regulations made by the Secretary of State for Wales). However, the circumstances under which ratepayers could view evidence provided on 'forms of return' under the 1988 Act were nevertheless very specific.  He said that the current law was set out in Regulation 41 of the Non-Domestic Rating (Alteration of Lists and Appeals) Regulations 1993; S.I. 1993/291. Regulation 41 (6) states:  

"Nothing in the foregoing provisions of this regulation shall be construed as requiring the making available for inspection or copying, or the production of, any document insofar as it contains information other than information -

(a)   constituting direct evidence of the rent payable in respect of the specified hereditaments, or  

(b)   which is otherwise reasonably required for the purposes of the relevant proceedings."  

The Director said that VOA's interpretation of Regulation 41(6) was that information could not be made available other than under this regulation.  

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7.31 The Director said that the difference in the Acts in this area had been of concern to brewers and publicans and, as a result, trade codes were agreed between VOA and the Brewers' Society, and VOA and the National Licensed Victuallers Association. These codes limited the circumstances in which information would be released to third parties.   

7.32 The Director went on to say that the information contained in the appendices to the 1990 guidance, which would have been obtained from forms of return and rent returns and supplied over a period of time under both Acts, was exempt from disclosure since it was, in effect, information covered by a statutory restriction. He added that there was some additional information provided in appendices 24 and 25 which would not have been requested on the statutory form of return and which had therefore to be regarded as having been provided voluntarily (probably during discussion of individual appeals).  

7.33 On 22 March 2001 there was a pre-hearing review of the Tribunal under Regulation 36 of the Non-Domestic Rating (Alteration of Lists and Appeals) Regulations 1993, in relation to Mr N's appeals against the list entries for his property in both the 1990 and 2000 Rating Lists. Inter alia, the Tribunal considered the matters that are the subject of this investigation. The Tribunal suggested, according to the report of the hearing, that 'the VOA provided the appellant (Mr N) with copies of the 1990 Rating List and 2000 Rating List guides...without breaking the VOA's rules on confidentiality' but that if (on matters of confidentiality) 'the Ombudsman later ruled differently, this information should be forwarded to the appellant as a matter of urgency.' The Tribunal also suggested that 'all the information should be provided to the appellant at no cost unless the Parliamentary Ombudsman ruled otherwise...' The Tribunal noted that 'guidance of a similar nature had been provided free of charge on previous occasions and that this had more or less set a precedent in the instant case.'  Mr N confirmed that he would be prepared to pay a charge if, under the Code, the Ombudsman thought it appropriate that he should do so.    

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7.34 This complaint effectively raises three questions. First, is Mr N entitled under the Code to a complete copy of the 1990 guidance and, if not, are the exclusions proposed acceptable under the Code? Second, is VOA's proposed charge of £15 for an edited version of the 1990 guidance reasonable and in accordance with the Code? Third, is it reasonable, under the Code, for VOA to charge Mr N £15 for a copy of the 2000 guidance notes? Clearly, in considering these questions, other matters also need to be addressed and I shall also examine the way in which VOA have handled Mr N's complaint.  

7.35 It is appropriate at this stage to set out what the Code says about documents. Mr N has specifically asked for the release of two sets of guidance notes. Under the Code, there is no commitment that pre-existing documents, as distinct from information, will be made available in response to requests. However, the Ombudsman has previously said that the simplest way of releasing information is often through the release of the document itself. I am pleased that VOA have addressed Mr N's information request in that spirit.  

7.36 It is also appropriate at this stage to set out the relationship between the Code and any statutory restrictions which may apply since VOA have now concluded that most of the information contained in the relevant appendices to the 1990 guidance is, in fact, covered by such statutory restrictions. Paragraph 8 of Part I of the Code says;  

".The Code is non-statutory and cannot override provisions contained in statutory rights of access to information or records (nor can it override statutory prohibitions on disclosure)"  

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7.37 This matter is additionally covered by Exemption 15 of the Code. Exemption 15 covers  'Statutory and other restrictions' and the following categories are exempt from the commitments to provide information under the Code:  

"a) Information whose disclosure is prohibited by or under any enactment, regulation, European Community law or international agreement.  

b) Information whose release would constitute a breach of Parliamentary Privilege."  

It is clear from VOA's response that, although they have not specifically cited it, they consider that Exemption 15(a) applies to most of the information contained within these appendices.     

7.38 I turn first to the 1990 guidance. VOA have agreed to provide Mr N, at a charge, with an edited copy of the 1990 guidance.  Section 3 (Licensed Property - Public Houses) of the 1990 guidance contains 26 appendices. As I understand it, VOA now maintain that the information contained in appendices 1, 2, 5, 6, 16, 19, 24, 25 and 26 was collected under the auspices of either the General Rate Act 1967 or the Local Government Finance Act 1988, and, for the reasons given in paragraphs 7.26 to 7.31 above, is subject to statutory restriction.  

7.39 In summary, the excluded appendices contain the following information:  

i) Appendix 1 is headed "Computer Analysis Printout". This section contains the property reference, brewer and tied tenancy details, wet trade details, dry trade adjustment and domestic adjustment. There are no obvious references to any individual public houses.  

ii) Appendix 2 is headed "Adjustment for repairs and insurance to NAV" and consists of a hand-written table containing specific details relating to nine named public houses.  

iii) Appendix 5 is headed "Tied Rent Analysis - Domestic element - Open Market Rents". This hand-written table is divided into 10 separate Welsh offices, which are in turn sub-divided into rating areas. The rating areas are sub-divided again, this time into 14 public house categories. No specific public house details are provided.  

iv) Appendix 6 is headed "Tied Rent Analysis - Domestic element - Fair Rents". This table contains detailed information about the internal dimensions and rental values of 56 named properties.  

v) Appendix 16 is headed "House showing brewers overbid". The section consists of a hand-written chart divided into 24 columns containing details of the respective lease, tied rent, trade and profits of three named public houses.  

vi) Appendix 19 is headed "Retail Prices 1/4/88 - Local Public Houses". This section contains a list of drink and catering prices for six named public houses.  

vii) Appendix 24 is headed "Accounts - Summary of analysis on 3 rented houses". As the heading suggests, this section is concerned with an analysis of three public house accounts including details of their profits and expenditures and expressed as a percentage of their Gross Takings All Sources (GTAS).  

viii) Appendix 25 is headed "Accounts - Analysis of accounts on 3 rented houses". This section contains a more detailed analysis of the accounts of three named public houses than those shown in Appendix 24.  

ix) Appendix 26 is headed "Accounts - Schedules showing accounts and analyses on 63 houses" (Note: the appendix actually lists 64 public houses.) This is an analysis of the profits, receipts and rental out-goings of 64 public houses in the form of a 12-column hand-written table spread across seven pages of A3 size paper.  

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7.40 VOA now contend that the information contained in these appendices (other than Appendix 19) can only be disclosed in very specific circumstances (described above) which are determined by statute: in effect the Code (being non-statutory) cannot override statutory conditions and the information should therefore only be released when these conditions have been satisfied. I have considered this argument and the legislation very carefully and my understanding is that the process by which one may obtain this kind of information is very specific. For example, under Regulation 41 of the Non-Domestic Rating (Alteration of Lists and Appeals) Regulations 1993, information relating to no more than four hereditaments can be disclosed for the purposes of an appeal (unless the valuation officer wishes to rely on such information in relation to a greater number of hereditaments). The interpretation of this regulation, therefore, is that this information can only be disclosed for the purposes of an appeal, cannot be disclosed for any other purpose, nor can any such information about any other hereditaments be disclosed. I accept that argument, in respect of that regulation and others that apply to this kind of information. The Code was never intended to override statutory restrictions on the disclosure of information and I therefore accept that a statutory restriction applies to the majority of the information contained in the excluded appendices as currently described.   

7.41 The Director also said that the accounts shown in Appendices 24 and 25 contain more detail than would have been required by the statutory form of return and would therefore have been provided voluntarily (probably during discussion of individual appeals).  It appears to me, however, that any such information can only have been provided to the valuation officer as an outcome of the initial statutory requirement to submit a 'return' and, in providing it, the publican is unlikely to have drawn any distinction between the two kinds of information: it is therefore reasonable to suppose that that information would have been given on the basis that it would also be treated confidentially. I recognise too that that information, relating as it does directly to the turnover of individual public houses, can legitimately be considered to be information about an individual (since knowledge of the name of a particular public house enables the identity of its licensees to be established). On that basis, I am satisfied that any remaining information in Appendices 24 and 25 not within the terms of the statutory restriction is, as presently drafted, covered by Exemption 12, which concerns the information relating to individual privacy. I have therefore not considered the applicability or otherwise of Exemption 14 to the information sought.  

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7.42 Briefly, I also consider Appendix 19. As I have described earlier, Appendix 19 is an out of date public house price list.  I do not believe that it could regarded as a breach of confidentiality by VOA should the contents of Appendix 19 now be disclosed and I recommended to the Director that this information should be released unchanged. In reply, the Chief Executive said he agreed with my recommendation and had no objection to the inclusion of Appendix 19, unchanged, in any provision of the 1990 guidance.

7.43 Having therefore established that most of the information contained in Appendices 1, 2, 5, 6, 16, 24, 25 and 26 is subject to a statutory restriction (with the remainder falling within the ambit of Exemption 12), does this mean that the information should not be provided? I took the view that the most sensible and reasonable way forward would be for VOA to consider releasing the information in these appendices in a suitably anonymised form to Mr N. In making this suggestion, I considered that it would be difficult to argue that releasing the information with the name of the individual public house, licensee and brewery omitted could in anyway compromise either VOA's statutory responsibilities or the privacy of the individuals concerned:  I was particularly conscious of the fact that the information could hardly be described as contemporary.  In response, the Chief Executive said that he had reconsidered the matter and was willing to release the appendices, with any reference to the name of the individual public house, licensee and brewery omitted, as part of the 1990 guidance.  

7.44 VOA have also sought to exclude section five of the 1990 guidance. VOA have not attached any statutory restriction to this information. Section five contains details relating to the Original Gravity (OG) bands of 247 beers from 25 different brewers. The OG of a beer gives an indication of its relative strength and is expressed as a gravity band (e.g.1033 - 1040.) VOA wish to exclude this information on the basis that the detail of these bands is commercially confidential in nature and therefore exempt under Exemption 13.  Exemption 13 is intended to protect sensitive commercial information, the disclosure of which would adversely affect those to whom the information relates. In deciding whether or not Exemption 13 applies in this case, I have to ask if the information would be useful to a competitor (in this case another brewer) and if it would be otherwise unobtainable by them. I have also to consider whether the information can realistically be considered to be a trade secret or a commercial confidence; whether its disclosure is likely to harm the competitive position of the subject (in this case the brewer) and whether the disclosure would prejudice the future supply of information to VOA.  

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7.45 Several points merit consideration here. First, my understanding is that this information, in relation to the beers listed, was probably already in the public domain (indeed, sometimes on beer bottles) and, if not, easily obtainable from other sources. Second, we are again considering information already over ten years old.  Even when the guidance was produced some of the beers listed in it had already gone out of production and it is inconceivable to me that the bulk of the information contained in this section of the guidance could be regarded as being of anything other than historic interest.  It is very hard, therefore, to see how the provision of any of this information now could conceivably be said to constitute a trade secret or cause harm to the competitive position of a third party: certainly no evidence has been provided to me in support of that view. I note also that legislative requirements mean that publicans will continue to need to provide this information if asked to do so by VOA, so there is no question of disclosure prejudicing future supply. I do not find Exemption 13 applies and recommended that the contents of section five be released in full. In response, the Chief Executive said he agreed with my recommendation and would include section five, in full, in any provision of the 1990 guidance.  

7.46 During the course of my investigation, VOA also informed me that the basis for dealing confidentially with the information provided to them by statute is now enshrined in agreements between them and, respectively, the National Licensed Victuallers Association and the Brewers' Society (the trade associations) in the form of codes of practice (the trade codes) first promulgated in 1990. These trade codes, it should be noted, came into being after the information sought by Mr N had been submitted to VOA and continue to operate. This was because information requested prior to 1988 was sought under the authority of the General Rate Act 1967. This Act prevented the disclosure of trade information for the valuation of certain properties, including public houses, as set out in paragraph 7.29 of this report.  

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7.47 The trade codes clearly recognise that they must take account of the requirements of the law. They nevertheless say that information can be made more widely available, albeit only in restricted circumstances. In particular, paragraph 5 (1) says:   

'Trade information supplied in respect of a hereditament will not be disclosed to any person without the written consent of the person supplying the information, or the person/body on whose behalf the information was supplied, except in the following circumstances:  

These circumstances are then set out. The trade codes, however, take no account of the Code under which I am considering this complaint: certainly, there is no evidence that the trade codes  were ever revised to take account of the Code  when it was first issued in 1994. In a case published in 1998 (A25/97, Selected Cases, April - October 1998, Access to Official Information, Second Report, Session 1998-99) the Ombudsman said:  

'I look first at the requirements of the Vehicle Safety Code and how, if at all, they affect obligations under the Information Code I am considering....The Vehicle Safety Code is not a statutory document: its provisions are therefore subject to the provisions of the Information Code and information covered by the Information Code can only be withheld by reference to one or more of the exemptions it contains.'  

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This applies equally to the trade codes under consideration here. Clearly, if departments are establishing codes of practice which deal, inter alia, with the provision of information, then such codes of practice must take account of the 'Information' Code and its requirements, as they do not have the force of statute. If trade codes are to continue, I invited VOA to ensure that future versions achieve this objective for the duration of the 'Information' Code.  In reply, the Chief Executive said he would ensure that, in future, any such trade codes took account of the Code.   

7.48 I turn now to the question of charging.  VOA have offered to provide Mr N with a copy of both the 1990 and the 2000 guidance at a cost of £15 each. Unlike its predecessor, the 2000 guidance has clearly been produced for public consumption.   Part 1 paragraph 3(ii) of the Code says that;  

".Subject to the exemptions in Part II, the Code commits departments and public bodies under the jurisdiction of the Parliamentary Commissioner for Administration (the Ombudsman).to publish or otherwise make available.explanatory material on departments' dealings with the public (including such rules, procedures, internal guidance to officials, and similar administrative manuals as will assist better understanding of departmental action in dealing with the public) except where publication could prejudice any matter which should properly be kept confidential under Part II of the Code."  

7.49 I have no difficulty with (indeed applaud) the decision to make this kind of information generally available to the public. But, in their booklet 'Open Government', VOA make it clear that they offer to the public, for purchase, a range of internal guidance manuals on CD-ROM. The documents sought by Mr N are clearly similar in kind to such manuals. VOA also make it clear that, if a request is made for information which would not have been provided free of charge before the advent of the Code, then a charge will continue to be made. This information falls into that category.   

7.50 The Code makes it clear (see paragraph 7.20 above) that departments are entitled in principle to charge for information. VOA have decided to levy a charge of £15 for the 1990 guidance. This document was not prepared for public consumption: indeed it was compiled several years before the Code came into existence at a time when much less information was routinely placed in the public domain than is now the case. I do not therefore find it unreasonable, under the Code, for VOA to charge £15 for that document, if it includes the information contained in the appendices on the basis set out in paragraph 7.43 of this report.  

7.51 The 2000 guidance is slightly different. Rather than photocopy this document to meet any request by the public to see it, VOA have had extra copies of it printed in order to ensure the accuracy of the graphs contained within it are maintained. This document is available for purchase at a price of £15 (a fact confirmed by this Office). VOA have explained (paragraph 7.16) the basis on which this figure was calculated: the approach seems to have been that, because VOA charge £15 for a simple information request and this request falls into that category, then that is the price that Mr N should be required to pay. The impression gained, therefore, is that VOA have adapted the cost of a simple (in their terms) information request to embrace a request for a document that has already been prepared. That is not how charging should be implemented under the Code. In my earlier draft, I invited the Director to consider a more appropriate charging regime, arguing that (as an example) a volume of Selected Cases produced by this Office which consisted of 32 pages as opposed to the 20 pages of the VOA guidance, retailed at only £8.30. In response to this the Director told me, in January 2001, that the guidance notes had been costed by VOA's own finance department, who had arrived at a figure of £13.52.  

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7.52 I therefore accept that, under the Code, it is reasonable for VOA to charge Mr N £15 for the 1990 Guidance but I still consider the price of the 2000 Guidance as excessive. I invited the Director to look at that matter again. In doing so, however (and this applies equally to the 1990 Guidance), I asked him to bear in mind the view of the pre-review Tribunal in respect of the provision of the 1995 Guidance to Mr N and the precedent that this might be said to have created. In reply the Chief Executive said the minimum charge of £15 was set some years ago. This sum was to cover the cost of dealing with the 'average' simple request for information and it followed Inland Revenue policy. In respect of this particular request, the Agency has costed production of the 2000 guidance at £13.52. This was not a significant amount less than the standard minimum charge for simple requests and he believed it was still appropriate to make the guidance available at the minimum charge of £15. He said that, with hindsight, the Agency should also have made a charge for the 1995 guidance. However, since Mr N requested the 2000 guidance, he had made an appeal against the rateable value shown in the 2000 Rating List for his property. This appeal is due to be heard at the local valuation tribunal at which the Valuation Officer intends to refer to the 2000 guidance as evidence. Accordingly, the Valuation Officer will send Mr N the 2000 guidance before the tribunal hearing, at no cost.  

7.53 I turn finally to VOA's handling of Mr N's complaint. The Ombudsman has said that it is good practice, when departments refuse requests for information, for them to identify in their responses the specific exemptions in Part II of the Code on which they are relying. In making this point, I have in mind that in their responses to Mr N VOA failed to make any reference to the Code, nor did they inform him at any stage during their correspondence of his right under the Code to have his request reviewed. I am critical of those failures, particularly coming as they do from a Department which has issued a leaflet on open government containing many references to the Code.  

7.54 In addition, I am also critical of VOA's handling of Mr N's complaint once it reached  this Office.  It was not until we had submitted our draft report to VOA for comment, some eight months after VOA had been notified of Mr N's complaint, that VOA first drew this Office's attention to certain statutory restrictions on the disclosure of information of the kind sought by Mr N. That is very regrettable, as it has unnecessarily prolonged this Office's investigation.  I therefore suggested to the Chief Executive that steps should be taken within VOA to ensure that there was a continuing commitment to dealing with all requests for information with reference to the Code's requirements as long as the Code continued to operate, and that this commitment extended to its handling of complaints subsequently made to this Office. In response, the Chief Executive apologised for the way the Agency had dealt with Mr N's request for information, and the way it handled the subsequent complaint. He said he would remind the Agency's staff of the requirements of the Code, and the need to comply with it when dealing with requests for information.  

7.55 Most of the information contained in the 1990 guidance was subject to a statutory restriction. I therefore welcome VOA's decision to provide Mr N with an anonymised version of this guidance at a cost of £15. I also accept that VOA were entitled to charge Mr N for a copy of the 2000 guidance, although I am disappointed that they did not agree to my suggestion that the cost should be reduced. I am pleased however that VOA have now agreed to provide Mr N with a copy of the 2000 guidance free of charge, on the basis that the Valuation Officer intends to refer to the guidance in evidence at Mr N's appeal. Finally, the Chief Executive accepted that there were shortcomings in the way in which Mr N's information request and subsequent complaint had been handled, and agreed to take steps to ensure that his staff were aware of their responsibilities under the Code.  

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Last updated: 4 April 2005