EIR Request - Review of Flytipping Offences 2010 to 2018

Request 101002186126

Re: FOI  101002167641

I am writing to request an internal review of Moray Council's handling of my FOI request 'Number of flytipping offences in Moray between 2010 and 2018'.

I would like to thank your authority for answering the 1st (albeit starting from 2015 onwards) and 4th questions of the previous FOI request but still there are more questions to be asked than answers.

1. In response to the 2nd question, you answered that you do not hold this information. Considering that your authority stated the number of offences being reported were in the 3 digits, surely there would be cases being processed for prosecution or subject to no further investigation? I ask the 4 part questions with the 3 previous ones included:
i) How many flytipping cases reported to your authority between 2015 and 2018 resulted in FPNs and/or criminal convictions?
ii) How many flytipping cases reported to your authority between 2015 and 2018 were subject to no further investigation due to insufficient evidence?
iii) How many flytipping cases reported to your authority between 2015 and 2018 were not subject to further investigation due to tampering of evidence?
iv) How many flytipping cases reported to your authority between 2015 and 2018 were not subject to further investigation due to concerns raised from the complainant(s) about reprisals from the reported offender(s)?

2. In response to the 3rd question, I find it interesting that your authority claims they would slightly welcome members of the public to covertly capture flytippers using hidden cameras albeit within limits of the RIPSA 2000. This is a bit odd considering that other councils that have been asked the same question [] including West Dunbartonshire and West Lothian and they have openly stated that members of the public are not permitted to use covert cameras because of many laws including RIPSA 2000, Data Protection Act 1998, Dog Fouling (Scotland) Act 2003 and regulations from the Information Commissioner's Office. West Lothian Council responded to the same answered questions:

"Covert cameras would not be allowed to be set up by individuals for us to use the footage. As a Council, if we wanted to use covert cameras we have to comply with Regulation to Investigatory Powers (Scotland) Act 2000 (RIPSA) legislation to be able to use them.

If overt camera footage is supplied by anyone, along with a statement from them then we could consider its use as part of evidence for issuing a Fixed Penalty Notice."

West Dunbartonshire Council responded:

"West Dunbartonshire Council residents, as with other members of the general public, cannot set up covert CCTV cameras. In terms of house/residence security any CCTV cameras would have to be clearly marked with signage. Moreover the camera itself would also need to be positioned in such a way that it was confined to entry security and would not capture street images which might contain personal data of members of the public going about their daily business.

The second part of your question 3 is based on covert cameras. Only those bodies listed in the Regulation of Investigatory Powers (Scotland) Act are permitted to carry out covert surveillance. In this regard I would refer you to the Office of Surveillance Commissioners.

I refer also to our response dated 27 September 2018 to your FOI
18/1951137 review request where we confirmed that West Dunbartonshire Council does not use surveillance including covert surveillance to pursue or identify flytipping offences."

I would like to rephrase the questions so they can be answered in this internal review request:
i) If the citizens of the Moray Council area give over their contact details to your authority when reporting flytippers, are their details involving their name(s) and address(es) mentioned to the offender(s)?
ii) Does your authority use covert and overt surveillance cameras to capture flytippers in the act?
iii) Would Article 8 (Section 2 for exemption to privacy) of the European Convention on Human Rights be applied as an excuse by your authority and the citizens of Moray to deploy covert and overt cameras to catch flytippers in the act? This has been advised in a 2013 ICO document (see link here: https://ico.org.uk/about-the-ico/consultations/the-regulation-of-investigatory-powers-scotland-act-2000-revised-codes-of-practice-for-covert-surveillance-and-covert-human-intelligence-sources/).

Can your authority confirm if all the rules and regulations highlighted in this internal review request as well as the article above are abided by? Is the COPLAR 2018 also complied with?

Response 27-06-2019

Following your request for a review of our response to the FOI you submitted, Flytipping Offences 2010 to 2018 - 101002167641 , a review meeting was held at the Council offices on 20th June 2019. In attendance were the Acting Records and Heritage Manager, Senior Solicitor, Waste Policy Officer and Information Co-ordinator.

The meeting addressed your first comment, that only data from 2015 had been provided when you had requested it from 2010. The reason that information prior to 2015 was not provided in our original response was that it is not held on the current system and we failed to include this description when citing section 10(4)(a) of the Environmental Information (Scotland) Regulations 2004.

However, upon investigation it was found that although this information should have been deleted, data from 2012 is in fact held. The records prior to 2015 came from the old KSB (Keep Scotland Beautiful) reports which were changed to the fly mapping system in 2015. We should have deleted them when the Confirm system was also updated as we cannot cross reference back to the enquiries that were raised.

We apologise for this error and have provided the updated figures below. In accordance with section 10(4)(a) of the Regulations, please be advised that information prior to 2011/12 is not held.

2011/12 - 302
2012/13 - 311
2013/14 - 242
2014/15 – 251
2015/16 - 149
2016/17 - 139
2017/18 – 336

1. The Council responded to your original question 2 citing section 10(4)(a), information not held. The department who initially responded to the request confirmed that they do not hold this information, however it was highlighted at this stage that information may be held and so this area was checked and we are able to provide answers to questions 1.iii and 1.iv. We note that you have revised your questions to include one additional question and while it was felt that this should be considered as a new request, for ease of reference we have answered all together within this review response.

i. 17 FPNs were issued between 2015 and 2018.
ii. In accordance with section 10(4)(a) we can confirm that this information is not recorded. 6 of the cases were marked as ‘No Further Action’ but this may not necessarily be due to insufficient evidence as the reason for no further action being taken is not recorded.
iii. None
iv. None

2. With regards to your third question, it was highlighted that misinterpretation may have occurred. To clarify the Council’s original response, the Council does not accept covert recordings from members of the public and would direct them to guidance from the ICO on this. Although your additional question on this subject should be considered as a new request, for ease of reference we have answered them within this review response below.

i. No
ii. No
iii. We are unable to comment on hypothetical scenarios and as we do not deploy covert surveillance for flytipping. We can only advise that, in accordance with section 10(4)(a) of the Act, this information is not held.

Your final point was also addressed and it was agreed that yes, we do comply with COPLAR however as we have not undertaken the act of covert surveillance for fly tipping detection, we do not need to comply with RIPSA or Article 8 (section 2) as described.

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