First-tier Tribunal (General Regulatory Chamber)

NCN: [2025] UKFTT 270 (GRC)

Appeal Reference:  FT/EA/2024/0373

First-tier Tribunal

(General Regulatory Chamber)

Information Rights

 

Determined without a hearing on 20 February 2025

 

Before

 

Judge ANTHONY SNELSON

TRIBUNAL MEMBER MARION SAUNDERS

TRIBUNAL MEMBER PAUL TAYLOR

 

Between

 

MICHAEL MURRAY

Appellant

and

 

THE INFORMATION COMMISSIONER

Respondent

Decision

 

The unanimous decision of the Tribunal is that:

 

(1)               The information sought by the Appellant's request was not held by the relevant public authority at the time of the request.

 

(2)               Accordingly, the appeal is dismissed.

Reasons

 

Introduction

 

1.                  The Forestry Commission ('FC') is a government Department which manages and promotes woodlands in the UK. Forestry England ('FE') is an executive agency of FC dedicated to managing woodlands in England.

2.                  The Appellant, Mr Michael Murray, owns a property which adjoins FC land. In 2021 a landslip occurred which affected his property as well as the FC land. Mr Murray believes that a programme of tree-felling on the FC land caused or contributed to the landslip.

 

3.                  Mr Murray has pursued a lengthy correspondence with FC and FE concerning the landslip and associated matters. For brevity, and because nothing turns for present purposes on the distinction between FC and FE, our reasons below will treat all relevant communications as having been between Mr Murray and FC.

 

4.                  One consequence of Mr Murray's complaints was that FC commissioned a consultancy company with which it had and has a commercial relationship ('the Consultants') to advise on the causes of the landslip and related points. This work resulted in three documents prepared by the Consultants: 'Technical Note Version 0.0', 'Technical Note Version 1.0' and 'Detailed Desk Study Version 2.0', the combined effect of which was to attribute the landslip to a cause other than the tree-felling relied on by Mr Murray.

 

5.                  The second and third of these documents were shared with Mr Murray in 2021 and 2022. The first was not, but was disclosed in the course of the investigation to which we will shortly turn.

 

6.                  On 7 December 2023 Mr Murray wrote to FC requesting information in the following terms:

 

I hereby request copies of all [FC/FE] recorded information with [the Consultants] on [redacted] since 24 February 2021 up to the present date. This includes, but is not limited to, documents, reports, memos, paper correspondence, email correspondence, text messages, messages, presentations, spreadsheets, inspection notes, maps, videos, photographs and records of telephone calls related to:

 

1.       ['Technical Note Rev 1.0'] dated 20 April 2021 ... and all previous revisions including Rev 0.0

2.       ['Detailed Desk Study Rev 2.0] ... and all previous revisions, including Rev 0.0 and 1.0

 

7.                  FC responded on 15 February and 6 March 2024, treating the request (rightly) as made under the Environmental Information Regulations 2004 ('EIR'). It provided some of the information requested and withheld some, citing applicable exceptions. No challenge is raised by Mr Murray in respect of the exceptions cited or their applicability.

 

8.                  In response to further representations from Mr Murray, FC advised him that it did not hold information in the form of draft reports because the Consultants had not shared drafts with it.

 

9.                  On 2 April 2024 Mr Murray wrote to FC seeking an internal review. He made the point, in particular, that his request had not sought drafts but earlier 'versions' of reports and that the Consultants had submitted earlier versions of the reports to FC for comment.

 

10.              By a letter of 29 April 2024, FC responded to the review application. It disclosed the 'Technical Note' Version 0.0., explaining that the responsible information rights team had missed it when the request had first been considered. It was held by FC by virtue of being an attachment to an email sent to it by the Consultants. That said, no other draft was held. In particular, FC did not hold an earlier draft of the Detailed Desk Study. The Consultants had made a link to their SharePoint site available enabling FC to view earlier drafts of the Detailed Desk Study, but there was no evidence of the document having been downloaded. Moreover, the Detailed Desk Study report having been finalised, the link was no longer active. In the same correspondence FC dealt with several residual matters (which are not, or no longer, controversial) and apologised for certain procedural shortcomings in the way in which Mr Murray's request had been handled.

 

11.              On 1 May 2024 Mr Murray complained to the Respondent ('the Commissioner') about the way in which FC had dealt with his request. An investigation followed.

 

12.              By a Decision Notice dated 22 August 2024 ('the DN'), the Commissioner determined, on a balance of probabilities, that FC had not held information within the scope of the request in addition to that which had been disclosed.

 

13.              By his notice of appeal of 15 September 2024 with lengthy grounds in support, Mr Murray challenged the Commissioner's decision.

 

14.              By a response dated 21 October 2024 the Commissioner resisted the appeal, essentially on the grounds set out in the DN.

 

15.              The appeal came before us for consideration on the papers with half a sitting day allocated. Both parties had expressed themselves content with that procedure and we were satisfied that it was just and proportionate to decide the matter without a hearing.  

 

16.              We were provided with a bundle of 246 pages.

 

The applicable law

                              

17.              By EIR, reg 5(1) a public authority which holds environmental information must, subject to exceptions, make it available on request.

 

18.              For the purposes of EIR, 'environmental information' includes information in written, visual, aural, electronic or any other material form on 'the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites ...'  (reg 2(1)).

 

 

19.              Environmental information is 'held' by a public authority if it is in the authority's possession and has been produced or received by the authority, or is held by another person on behalf of the authority (reg 3(2)).

 

20.              Whether particular information is 'held' by a public authority is essentially a question of fact (University of Newcastle upon Tyne v ICO and BUAV [2011] UKUT 185 AAC, [41]).

 

21.              Any such question is to be decided on a balance of probabilities (Bromley v Information Commissioner and Environment Agency EA/2006/0072). 

           

22.              The appeal is brought pursuant to FOIA, s57.  The Tribunal's powers in determining the appeal are delineated in s58 as follows:

 

(1)    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.

 

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

 

The rival cases

 

23.              Mr Murray makes many points in support of his central thesis that the documents are held and that FC is suppressing them because they are seen as damaging. It would not be proportionate for us to attempt to list or catalogue his arguments, but we have had careful regard to all of them. In addition, he goes so far as to suggest or imply (although not directly allege) criminal conduct under EIR, reg 19. [1]

 

24.              The Commissioner submits that, on a balance of probabilities, FC did not, and does not, hold the disputed information. Its account is consistent with the documentary material and ordinary business practice and experience.

 

Conclusions

 

25.              Mr Murray has pursued his case with great energy and at considerable length. That said, the scope of the appeal is narrow. The dispute is confined to the plea of 'not held' in relation to the two earlier 'versions' of the Detailed Desk Study report and any written representations or suggestions by FC to the Consultants concerning those documents.

 

26.              Despite Mr Murray's arguments, we have reached the clear conclusion that his appeal fails. We have a number of reasons.  

 

27.              First, we see no basis for inferring that FC has adopted a strategy of evasion in dealing with the request. There was a degree of delay and the request was not in all respects dealt with competently. But that does not point to a likelihood that FC is seeking to avoid its disclosure obligations.

 

28.              Second, Mr Murray's theory of a policy of evasion is not helped by the fact that he has received from FC a number of documents which he (quite understandably) seizes upon in his grounds of appeal as evidence of a strategy to influence the Consultants to adjust their report in such a way as to strengthen its (FC's) position.  If FC was prepared to flout its legal obligations why did it not balk at presenting Mr Murray with this ammunition?

 

29.              Third, addressing specifically the two earlier 'versions' of the Detailed Desk Study, we are not at all persuaded by Mr Murray's distinction between a 'draft' and a 'version'. It is quite plain that there was only one Detailed Desk Study report. It is equally plain that the document went through two substantial iterations on the way to being finalised and delivered. (No doubt there were many minor drafting amendments as well.) Whether one uses the term 'draft' or 'version', the report was a work in progress for some time. But the finished document was the only 'deliverable' which the Consultants contracted to produce and for which they were paid. In these circumstances, we see nothing suspect or peculiar about FC's case. It says that Versions 0.0 and 1.0 were made available to it by means of a link and that it sent comments on both documents to the Consultants using the link. It further says that, following delivery of the final version of the Report, the link was discontinued. We see no reason to doubt that account, which seems to us to be entirely rational and plausible.

 

30.              Fourth, we also find nothing surprising or unsatisfactory about FC's assertion that it did not download Versions 0.0 and 1.0. In the first place, it had no need to do so since it had ready access to the drafts by means of the link. In addition, we are not at all surprised that, as the Commissioner noted, FC accepts (indeed asserts) that it is disinclined to 'hold' information which it has no business need to hold, since doing so makes it vulnerable to freedom of information requests. This defensive mentality is increasingly prevalent in public bodies generally.

 

31.              Fifth, we reject Mr Murray's contention that, if FC did not at any material point directly 'hold' the disputed information, it held it through a proxy in the form of the Consultants. As noted above, EIR, reg 3(2) treats environmental information as being held by the public authority if it is held by another person 'on behalf of' the public authority. There is no basis for treating the drafts (or preparatory versions) of the Detailed Desk Study as held by the Consultants on behalf of FC. The Consultants were charged with performing the work of producing the report. As the documents before us show, under its agreement with FC it expressly reserved its right to 'ownership' of the work. The fact that the parties envisaged that the finished product would be delivered to FC and become its property does not begin to justify the view that iterations of it in the course of preparation were held by the Consultants on its behalf.

 

32.              Sixth, we see no inconsistency in the fact that FC admittedly held two versions or copies of the Technical Note (DN, para 29) yet denies holding any draft or preparatory version of the Detailed Desk Study. The simple fact is that the Technical Note documents, whatever their precise character, were, as FC rightly accepts, disclosable. They were within the scope of the request and they were 'held' by FC by virtue of forming attachments to emails sent to it by the Consultants. Moreover, the fact that disclosure was given lends further support to FC's case that it is conscious of its disclosure obligations and not disposed to flout them.

 

 Outcome and postscript

 

33.              For all the reasons given, the appeal is dismissed. 

 

34.              Finally, we would add that FC was entirely right to apologise to Mr Murray for its procedural mismanagement of his case. Measures should be taken to avoid such errors in the future.

 

 

 

 

 

 

 

(Signed)         Anthony Snelson

Judge of the First-tier Tribunal

 

Dated: 28 February 2025

Decision given on: 4 March 2025