First-tier Tribunal (General Regulatory Chamber)

Neutral citation number: [2025] UKFTT 224 (GRC)

 Case Reference: FT/EA/2024/0250

First-tier Tribunal

(General Regulatory Chamber)

Information Rights

Heard by Cloud Video Platform

Heard on: 20 January 2025

Decision given on: 24 February 2025

 

Before

 

TRIBUNAL JUDGE MORNINGTON

TRIBUNAL MEMBER SAUNDERS

TRIBUNAL MEMBER PALMER-DUNK

 

 

Between

 

MESSRS RICHARD AND JOAN TAYLOR

Appellant

and

 

INFORMATION COMMISSIONER

Respondent

and

 

ENNERDALE AND KINNISIDE PARISH COUNCIL

Representation:

For the Appellant: In person with representative - Mr Paul Stewart. Witnesses: Nancy Rowson and Daniel Young.

For the First Respondent: Not represented

For the Second Respondent: Not represented. Witnesses: Jane Coltman, Steve Parker, Sarah Sharpe and Julian Thursz.

 

Decision: The appeal is Dismissed.

 

The Tribunal finds that, on the balance of probabilities, the information was not held by the Parish Council at the time of the request and accordingly, Regulation 12(4)(a) of the Environmental Information Regulations applies.

 

 

REASONS

Context

 

1.      The history of the relationship between the parties is important in this case in that it forms the backdrop of this appeal and adds context to the Tribunal's decision.

 

2.      In December 2020, The Appellants were approached by Natural England in relation to the constructions of a vehicle and livestock bridge across the River Ehen at Longmoor Head. The Appellants were to pay for the works for the bridge and reclaim the monies from Natural England upon completion of the bridge.  The Appellants aver that the purpose of the bridge being built was to eliminate or reduce the impact to water quality and the freshwater species within. Works to the bridge began in July 2022.

 

3.      In September 2022, Ennerdale and Kinniside Parish Council received four complaints regarding the construction of the bridge. The Appellants shared with the Council that this was a private matter and not something for the Parish Council to be involved in, despite Mr Taylor being a Parish Councillor at the time.

 

4.      Despite this, the existence of the complaints were discussed at a Parish Council meeting (although the complainant's identities and the content were withheld) at which it was decided that the complaints would be shared with the relevant authorities/agencies by way of letter.   The decision to circulate this letter has sparked an ongoing dispute between the Appellants and the Parish Council as the Appellants consider the complaints/allegations made against them to be "untrue, unsubstantiated and damaging".

 

 

Background to Appeal

 

5.      This Appeal dated 16 June 2024 and made by Messrs Richard and Joan Taylor (the "Appellants") arises following a request for information (the "Request") made by the Appellants to Ennerdale & Kinniside Parish Council ("the Parish Council") on 6 November 2023 in the following terms:

 

"I request a copy of the letter and the information sent regarding the alleged breaches/complaints about the construction of the bridge at Longmoor Head. Please include details of all departments and recipients who received this information. This was sent by the clerk following the discussion at the Parish Council meeting on 22 September 2022."

 

6.      The Parish Council responded to the request on 26 November 2023 to confirm that the requested information was not held in the following terms:

 

"After a search by all Councillors and the Clerk, I can confirm that the Council does not hold the information that you requested."

 

7.      Mrs Joan Taylor responded to the clerk on 27 November 2023 to provide clarity to the request and request that the clerk confirm that the proper search was carried out.

 

8.      On 28 November 2023, the Parish Council Clerk, Jane Coltman ("The Clerk") confirmed that the requested information was not held. The Clerk confirmed:

 

"In line with Government issued Code of Practice on the Management of Records, emails and documents that are considered ROT (redundant, obsolete or trivial), ephemeral, or no longer hold value, are routinely deleted. This is also compliant with the guidance from the ICO (Information Commissioner's Office) that personal data should not be kept for any longer than is necessary.

 

As the Council was merely passing the complaints on, not raising them, there would be no necessity for the Council to retain this information for more than three months, allowing enough time for any queries to be raised. These events were over a year ago, so the information was deleted several months ago."

 

9.      On 15 December 2023, Mrs Taylor made a formal complaint to the Parish Council regarding the destruction of the requested information on the advice of, she says, the IC. Mrs Taylor alleged that:

 

"In destroying the documents, the Clerk has breached the records retention policy of the principal authority (Cumberland) which requires retention for between 5- and 30-years retention after use for planning related documentation of various types, in alignment with various planning legislation relating to planning documentation unless she had otherwise been given approval to do so."

 

10.  The Parish Council responded on 19 January 2024 and confirmed that the Appellant was correct in that the Parish Council did not have a Document Retention and Destruction Policy and accordingly, the Clerk had observed the necessary legal requirements and best practice in managing communications. The Clerk confirmed that the Parish Council will commit to publishing a Document Retention and Destruction policy.

 

Reasons for Commissioner's Decision

 

11.  The matter was referred to the Information Commissioner's Office by the Appellants on 18 January 2024 and following some further information, in a decision notice (the "Decision Notice") dated 29 May 2024, the Information Commissioner ("IC") held that:

 

"The Commissioner's decision is that on a balance of probabilities, the Council holds no recorded information relevant to the complainant's request and that regulation 12(4)(a) of the EIR applies but that in failing to issue a refusal notice under the EIR it breached regulation 14(1).

 

The Commissioner does not require further steps."

 

12.  In summary, The Commissioner's reasons for the Decision were that it was accepted that the Parish Council had classified the requested information as "Redundant, Obsolete or Trivial" and accordingly the information had been deleted.

 

13.  The Commissioner recognised that it is for public authorities to determine which information is to be recorded and for how long it should be retained to comply with statutory duties and accordingly, the Commissioner's investigation is limited to assessing what information was likely to have been held at the time of the request, rather than what ought to have been held and/or retained.

 

14.  The IC noted that in their complaint, the Appellants had alleged that the Parish Council had deliberately destroyed the requested information so as to prevent the Appellants from accessing it. The IC confirmed that this was an allegation of an offence under Regulation 19 of the EIR. The Commissioner found no evidence of the information being deliberately destroyed and that the explanation of the Parish Council was reasonable and accepted by the IC.

 

15.  Whilst the IC Decision acknowledges that the Council were in breach of regulation 14(1) of the EIR by failing to specify to the complainant, within 20 working days, the exceptions upon which the Council relied (ie. Regulation 12(4)(a)), the Commissioner did not require any further steps to be taken by the Council.

 

Appeal and Responses

 

16.  This appeal relates to the application of the Environmental Information Regulations 2004.

 

17.  The Appellants appealed the Decision Notice on the following grounds:

 

a.      Had the ICO dealt with a previous complaint properly, the requested information may not have been destroyed and the IC has not considered all of the information as a whole or investigated the time period when the original complaint was made.

b.      The Parish Council does not have a document retention policy and the Clerk at the Parish Council has purposefully destroyed evidence in an attempt to prevent the Appellant's from having the truth and the IC has failed to investigate this.

c.       The Parish Council has caused harm and personal injury for which redress is sought.

d.     The IC investigation was biased and unfair.

 

18.  The Commissioner's response to the appeal maintains that the Decision Notice is correct, that the IC was satisfied with the Parish Council's explanation and that on the balance of probabilities, the information was not held by the Parish Council at the time of the request, and accordingly Regulation 12(4)(a) EIR applies.

 

19.  In response to ground (a) detailed above the Commissioner it is submits that this is not an arguable ground of appeal as it relates to the conduct of the investigation and consideration of the conduct of the investigation is not within the jurisdiction of this Tribunal. The IC refers the Tribunal to the case of Carins v IC EA/2009/0102 & 0119 at para 38:- "no jurisdiction exists entitling us to regulate or review the way in which an investigation is conducted. We may review the outcome of the investigation (in the form of the Decision Notice issued at the end of it) not the process by which it is conducted." Further, it is the IC's position that only the Request of 06 November 2023 was investigated, and it is that Request that is now the subject of this appeal.

 

20.  In response to Ground (b) detailed above The Commissioner submits that he is not able to look into allegations of maladministration or misconduct or make a judgment on the performance of a public authority. As previously stated, the IC acknowledges that it is for public authorities to decide what information to record and for how long it should be retained in order to comply with any statutory duties. The IC investigation was, therefore, confined to considering what information was likely to have been actually held when the Request was received rather than assessing what should have been held and/or retained.

 

21.  The IC reiterates that he has no evidence that the information was held by the Council at the time the Request was received, and, on the basis of the Parish Council's explanation, it seems to the IC to be more likely than not that the information was deleted many months prior to the Request being made.

 

22.  The IC recognises and accepts that the Parish Council did not have its own retention policy, indeed, the Parish Council themselves recognise this to be the case. In an email to the Appellants dated 19 January 2024, the Council clerk states that they did not have a Document and Destruction policy: "In the absence of its own Document Retention and Destruction policy, the Clerk has observed the necessary legal requirements and best practice in managing communications."

 

23.  The IC therefore submits that he is entitled to accept the responses of a public authority at face value unless there is some reason why the Commissioner ought not do so (for example, evidence that the Commissioner is being misled): in Oates v Information Commissioner and Architects Registration Board EA/2011/0138 at [11], the First-tier Tribunal remarked:

 

"As a general principle, the IC was, in the Tribunal's view, entitled to accept the word of the public authority and not to investigate further in circumstances, where there was no evidence as to an inadequate search, any reluctance to carry out a proper search or as to a motive to withhold information actually in its possession. Were this to be otherwise the IC, with its limited resources and its national remit, would be required to carry out a full scale investigation, possibly onsite, in every case in which a public authority is simply not believed by a requester."

 

24.  The IC is satisfied that he has applied the correct test and explained his reasoning for his conclusions within the DN. The Commissioner considers this Ground of Appeal provides no valid basis for disturbing the Commissioner's DN and resists the appeal.

 

 

Evidence and Submissions

 

25.  The Tribunal was provided with and took account of a 298-page bundle. The Tribunal also heard submissions from both Appellants and Mr Paul Stewart as representative for the Appellants. Oral witness evidence was provided under oath from Jane Coltman on behalf of the Second Respondent.

 

26.  In Oral submissions, Mr Stewart provided several examples of how the Appellants consider that the IC's investigation was flawed. He went on to argue that the evidence of Jane Coltman, the Parish Council clerk ought to be treated as unreliable in that the Appellant's allege that Ms Coltman has made misleading and/or defamatory comments regarding the Appellants, and, in their view, has concealed information in the past.

 

27.  Mr Stewart averred that the clerk to the Parish Council had concealed and purposefully destroyed the requested information to protect herself and the Parish Council from the repercussions of alleged serious breaches of local government rules and civil action in defamation.

 

28.  Mr Stewart directed the Tribunal to a "balloon diagram" to highlight the factors which, in the Appellants' view, ought to be considered by the Tribunal when considering the 'balance of probabilities' test. The Appellants made a number of assertions and conclusions in support of their argument that the information was still held, but presented no compelling evidence

 

29.  The Tribunal also heard the witness evidence of Ms Jane Coltman. The evidence was given to the Tribunal under Oath.

 

30.  Ms Coltman stated that the requested information was deleted by her in or around January 2023. She stated that she wanted to retain the information for around 3 months after the letter. She deemed this to be an adequate amount of time for any issues to be raised, conscious of her duty to not hold onto personal data for any longer than is necessary.

 

31.  Ms Coltman confirmed that upon receipt of the FOIA request from the Appellants she undertook a search for the requested information. The extent of the search included all emails and all electronic files on her laptop including within the 'recycle bin'. She confirmed that she held nothing in hard copy.

 

32.  In addition, she emailed all Councillors and asked them to check their own emails and devices for the requested information. Ms Coltman took this step as she was aware that she had shared the requested information with an ex-Councillor and couldn't be sure that this councillor had not shared it elsewhere before her departure. All Councillors return to Ms Coltman to confirm that they did not hold the requested information.

 

33.  In response, Mr Stewart on behalf of the Appellants averred that Ms Coltman had no right or reason to delete the requested information and that she had no authority to do so. The Appellants consider Ms Coltman's actions to be illegal.  

 

 

Applicable Law

 

34.  The powers of the Tribunal in determining this appeal are set out in section 58 Freedom of Information Act ("FOIA"), as follows:

"If on an appeal under section 57 the Tribunal considers -

(a) that the notice against which the appeal is brought is not in accordance with the law, or

(b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he           ought to have exercised his discretion differently, the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner, and in any other case the Tribunal shall dismiss the appeal.

 

On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based."

 

35.  Under section 58 FOIA the Tribunal conducts a full merits appeal (de novo) of the Commissioner's handling of the decision under appeal.

 

36.  Regulation 2(1) of the Environmental Information Regulations ("EIR") defines "environmental information" as:

 

"...any information in written, visual, aural, electronic or any other material form        on -

(a)     the state of the elements of the environment, such as air and atmosphere,              water, soil, land, landscape and natural sites including wetlands, coastal              and marine areas, biological diversity and its components... and                                     interaction among these elements;

....

(c)     measures (including administrative measures), such as policies, legislation,                   plans, programmes, environmental agreements and activities affecting or            likely to affect the elements and factors referred to in (a) and (b) as well as                           measures or activities designed to protect those elements;

...

(f)     the state of human health and safety, including the contamination of the               food chain, where relevant, conditions of human life, cultural sites and                 built structures inasmuch as they are or may be affected by the state of the                   elements of the environment referred to in (a) or, through those elements,              by any of the matters referred to in (b) and (c);

 

37.   It was not disputed by the parties that the Request was to be subject to the EIR and not the Freedom of Information Act 2000 (although the Appellants have referred to "FOIA" in submissions).

 

38.  Regulation 5 EIR provides:

(1)   Subject to paragraph (3) and in accordance with paragraphs (2), (4), (5) and (6) and the remaining provisions of this Part and Part 3 of these Regulations, a public authority that holds environmental information shall make it available on request."

 

39.  Regulation 12(1) EIR provides:

Subject to paragraphs (2), (3) and (9), a public authority may refuse to disclose environmental information requested if—

 

(a)  an exception to disclosure applies under paragraphs (4) or (5); and

(b) in all the circumstances of the case, the public interest in maintaining     the exception outweighs the public interest in disclosing the                                 information."

 

40.  Regulation 12(2) provides that: "A public authority shall apply a presumption in favour of disclosure."

 

41.  The duty to make information available applies when the relevant public authority holds the requested environmental information. There are exceptions to the duty to disclose in regulation 12(4) EIR, which as relevant reads as follows

 

42.  Regulation 12(4) provides that:

"For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that—

 

(a) it does not hold that information when an applicant's request is received;

43.  Whether a public authority holds material is a question of fact to be determined on the balance of probabilities, see the case of Linda Bromley v the Information Commissioner and the Environment Agency (EA/2006/0072; 31 August 2007) which has subsequently been followed and approved by the Upper Tribunal. The type of fact that will be considered in determining whether the material is held may include the quality of the public authority's initial analysis of the request, the scope of the search that it decided to make on the basis of that analysis and the rigour and efficiency with which the search was then conducted. As noted in that case

"There can seldom be absolute certainty that information relevant to a request does not remain undiscovered somewhere within a public authority's records. This is particularly the case with a large national organisation like the Environment Agency, whose records are inevitably spread across a number of departments in different locations. The Environment Agency properly conceded that it could not be certain that it holds no more information. However, it argued (and was supported in the argument by the Information Commissioner) that the test to be applied was not certainty but the balance of probabilities. This is the normal standard of proof and clearly applies to Appeals before this Tribunal in which the Information Commissioner's findings of fact are reviewed. We think that its application requires us to consider a number of factors including the quality of the public authority's initial analysis of the request, the scope of the search that it decided to make on the basis of that analysis and the rigour and efficiency with which the search was then conducted. Other matters may affect our assessment at each stage, including, for example, the discovery of materials elsewhere whose existence or content point to the existence of further information within the public authority which had not been brought to light. Our task is to decide, on the basis of our review of all of these factors, whether the public authority is likely to be holding relevant information beyond that which has already been disclosed."

 

44.  If a public authority wishes to rely on an exception, they are required to issue a refusal notice in accordance with Regulation 14 which provides, as relevant to this appeal, as follows:

14      (1) ...the refusal shall be made in writing and ...

(2) The refusal shall be made as soon as possible and no later than 20 working    days after the date of receipt of the request.

(3) The refusal shall specify the reasons not to disclose the information                           requested, including—

 

(a) any exception relied on under regulations 12(4)... and

(b) the matters the public authority considered in reaching its decision        with          respect to the public interest under regulation 12(1)(b) ....

 

(5) The refusal shall inform the applicant—

 

(a) that he may make representations to the public authority under                        regulation 11; and

(b) of the enforcement and appeal provisions of the Act applied by                        regulation 18

 

 

Discussion and Conclusions

45.  In accordance with section 58 FOIA, the issue for the Tribunal to decide upon is whether the IC's Decision Notice was in accordance with the law and whether the IC was correct in finding that Regulation 12(4)(a) of the EIR applies in that on the balance of probabilities, the requested information was not held by the Parish Council on the date of the request.  

 

46.  Under section 58(2) FOIA, the Tribunal can review any finding of fact upon which the Decision Notice was based, consider all of the evidence before it and reach its own decision.

 

47.  The Tribunal has considered all of the extensive documentation provided by the Appellants and the Appellants' oral submissions along with the witness evidence of the Parish Council clerk, Jane Coltman. Should a piece of evidence not be mentioned within this decision, it should not be interpreted that the Tribunal has not considered it.

 

48.  The only issue for the Tribunal to consider in this case is whether, on the balance of probabilities, the requested information was held by the Parish Council at the time of the Appellants' request and accordingly, whether the IC's DN was incorrect in finding that Regulation 12(b)(a) of the EIR applies. Assessing the scope of the IC's investigation and conduct of the IC is not within the jurisdiction of this Tribunal.

 

49.  In oral submissions, the representative for the Appellant argued that the evidence of Jane Coltman, the Parish Council clerk, ought to be treated as unreliable in that the Appellants allege that Ms Coltman has made misleading and/or defamatory comments regarding the Appellants, and, in their view, has concealed information in the past.

 

50.  The Tribunal does not accept that the evidence of Ms Coltman was unreliable. This is particularly the case since Ms Coltman provided evidence on oath.

 

51.  The Tribunal accepts that upon receipt of the Appellant's request, Ms Coltman conducted an extensive search for the information with rigour and efficiency. That Ms Coltman also considered that an ex-Councillor may have shared the document with others prior to her departure shows that Ms Coltman as the clerk to the Parish Council considered the search in detail and that the scope of the search was appropriate.

 

52.  Having considered the evidence of the parties and all of the circumstances, the Tribunal accepts the evidence of the clerk, Ms Coltman, that the information was deleted in or around January 2023 and accordingly, on the balance of probabilities, the information was not held at the time of the request. This is the correct civil standard of proof, it is not appropriate to leave 'no stone unturned' in searching for information, but to carry out a diligent, competent and appropriate search in all the circumstances. The Tribunal considers that the Parish Council has conducted such a search.

 

53.  Accordingly, the IC was correct to find that Regulation 12(4)(a) of the EIR applies

 

54.  The Tribunal notes that at the time of the request, the Appellants were in possession of redacted versions of the requested information, albeit from a different source, rendering this appeal to be without merit.

 

55.  The Tribunal dismisses the appeal for the reasons given above.

 

 

Signed       Judge Peri Mornington                                   Date: 18 February 2025

 

Correction

Pursuant to rule 40 of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009, on 27 March 2025, the Tribunal corrected errors under 'Representation' and in paragraphs 4, 15 and 37 of the Decision.