First-tier Tribunal (General Regulatory Chamber)

Neutral citation number: [2025] UKFTT 445 (GRC)

 Case Reference: FT/EA/2024/0277

First-tier Tribunal

General Regulatory Chamber

Information Rights

Heard by Cloud Video Platform

Heard on: 22 January 2025

Decision given on: 28 April 2025

Before

 

JUDGE STEPHEN ROPER

MEMBER KATE GRIMLEY-EVANS

MEMBER STEPHEN SHAW

- - - - - - - - - - - - - - - - - - - - -

Between

 

PHILIP GATRELL

Appellant

and

 

THE INFORMATION COMMISSIONER

Respondent

- - - - - - - - - - - - - - - - - - - - -

Decision: The appeal is Allowed

 

Substituted Decision Notice:

 

The Tribunal's Decision Notice in case reference FT/EA/2024/0277, set out below, is substituted for the Information Commissioner's Decision Notice reference IC-285954-Y3X2, dated 20 June 2024, with regard to the request for information made to Bournemouth, Christchurch and Poole Council by Philip Gatrell dated 4 September 2023.

Substituted Decision Notice

1.             Bournemouth, Christchurch and Poole Council (the "Council") breached section 10(1) of the Freedom of Information Act 2000 by not providing all of the requested information within the timescales set out in that section in respect of the request for information made to it by Philip Gatrell dated 4 September 2023.

2.             As all of the requested information has subsequently been disclosed by the Council, no further steps are required to be taken by the Council.

 

 

REASONS

 

Preliminary matters

1.             In this decision, we use the following terms to denote the meanings shown:

Appellant:	Philip Gatrell.
Commissioner:	The Information Commissioner (the Respondent).
Council:	Bournemouth, Christchurch and Poole Council.
Decision Notice:	The Decision Notice of the Commissioner dated 20 June 2024, reference IC-285954-Y3X2, relating to the Request.
FOIA:	The Freedom of Information Act 2000.
LAAA:	The Local Audit and Accountability Act 2014.
Request:	The request for information made to the Council by the Appellant dated 4 September 2023, as set out in paragraph 5.
Requested Information:	The information which was requested by way of the Request.

2.             Unless the context otherwise requires (or as otherwise expressly stated), references in this decision:

a.             to numbered paragraphs are references to paragraphs of this decision so numbered;

b.             to any section are references to the applicable section of FOIA;

c.              to the Commissioner's "investigation" mean the Commissioner's investigation, for the purposes of section 50, of the Appellant's complaint relating to the Council's response to the Request.

Introduction

3.             This was an appeal against the Decision Notice, which decided that (on the balance of probabilities) the Council did not hold any further information within the scope of the Request.  The Decision Notice did not require the Council to take any steps.

Background to the Appeal

4.             The background to the appeal is as follows.

The Request

5.             On 4 September 2023, the Appellant contacted the Council by email and requested information in the following terms [1]:

"I should be grateful for the following recorded information held by the Council...

 

1. Regarding the Accounts and Audit Regulations 2015 (as amended) & Local Audit and Accountability Act 2014 (LAAA): ANNUAL PUBLIC INSPECTION PERIOD 1.8.22 to 14.9.22

 

Concerning the statutory rights of any person under the above legislation to obtain copies of BCP's accounting records or documents and the separate related rights of registered local government electors or their representatives in BCP's area to raise written questions and objections with the Council's external auditor, Grant Thornton, I require for the specific purpose of this FOIA request the recorded information below:

 

1.1 The total number of individuals - EXCLUDING THIS WRITER -from whom the above public requests were received by the Council DURING the above noted qualifying inspection period in respect of the FINANCIAL YEAR ENDED 31.3.22 (2021/22) relating to separately -

 

(a) The Statement of Accounts (ie financial Accounts per se);

 

(b) The Annual Governance Statement (AGS) accompanying the Statement of Accounts.

 

In the unlikely event that separate totals for 1(a) and 1(b) above are not recorded by BCP, the total of all individuals excluding this writer making those types of request to the Council is required and to be stated as such.

 

1.2 The total number of items of information requested by all individuals - EXCLUDING THOSE REQUESTED BY THIS WRITER - in respect of separately –

 

(a) The Statement of Accounts per 1.1(a) above;

 

(b) The AGS per 1.1(b) above.

 

The above totals to include those items that were considered by BCP as not eligible requests for release of information in accordance with the specific exempting provisions of the LAAA.

 

In the unlikely event that separate totals for 1.2(a) and 1.2(b) above are not recorded by BCP, the total of all items of information requested excluding this writer is required and to be stated as such.

 

1.3 In respect of the public requests in 1.1 above the total number of individual public requesters and separate total number of related items - EXCLUDING THIS WRITER - not provided by BCP with the information asked for relating to the Statement of Accounts and accompanying AGS analysed as to–

 

(a) The number of individual requesters and separately the number of related items excluding this writer where the information was considered by BCP not eligible for release in accordance with the specific exempting provisions of the LAAA;

 

(b) The number of requesters and separately the number of related items excluding this writer at the close of Council business on 14.9.22 where information had not been provided by BCP with the full information asked for excluding those individuals and items considered by BCP as not eligible requests per 1.3 (a) above;

 

(c) The number of requesters and separately the number of related items excluding this writer at the date and time of the Council's receipt of this email where information had not been provided by BCP with the full information asked for excluding those individuals and items considered by BCP as not eligible requests per 1.3 (a) above.

 

The separate total numbers for requesters and related items of information in 1.3 above excluding this writer are for simplicity to be stated as those in respect of both the Statement of Accounts and the AGS and to be identified as such ie not in respect of each of those documents.

 

1.4 The total number of individuals - EXCLUDING THIS WRITER - communicating in writing with the external auditor DURING the above statutory public period 1.8.22 to 14.9.22 under the provisions of the LAAA in respect of separately –

 

(a) The number of individuals asking questions on the Statement of Accounts;

 

(b) The number of individuals asking questions on the AGS accompanying the Statements of Accounts;

 

(c) The number of individuals submitting objections regarding "Any item which is alleged to be contrary to law";

 

(d) The number of individuals submitting objections regarding "Any matter in respect of which it is proposed that the auditor could make a public interest report under Section 24 of, and Paragraph 1 of Schedule 7 to, the LAAA."

 

In the unlikely event that separate totals for the above are not recorded by BCP in respect of each of 1.4(a) and 1.4(b), the combined totals of all such requests by individuals excluding this writer as comprise separately 1.4(c) and 1.4(d) above are required and to be stated as such.

 

Concerning my FOIA information requests under 1.1 to 1.4 above please note that FOIA-exempted confidential information including the names of individuals is not being asked for in this FOIA enquiry.

 

2. Regarding the Accounts and Audit Regulations 2015 (as amended) & Local Audit and Accountability Act 2014 (LAAA): ANNUAL PUBLIC INSPECTION PERIOD 1.6.23 to 14.7.23

 

The recorded information EXCLUDING RELATING TO THIS WRITER is required regarding BCP's FINANCIAL YEAR ENDED 31.3.23 (2022/23) and is equivalent to all of the defined types requested under 1.1 to 1.4 above subject to the same italicised provisos noted there.

 

Additionally, the relevant date under 1.3(b) of course instead reads 14.7.23 for the purposes of 2.3(b).".

 

6.             The Council responded on 2 October 2023.  It disclosed information which it held within the scope of the Request.

7.             Following a query from the Appellant on 2 October 2023 regarding the Council's response (particularly regarding alleged omissions in its response), the Council responded further on 16 October 2023.  It corrected some of the information provided in its earlier response and provided some additional information.

8.             On 20 October 2023, the Appellant raised further concerns with the Council regarding its subsequent response.  Having not received a reply from the Council, the Appellant contacted the Council again on 13 November 2023 requesting an internal review.  Amongst other things, the Appellant considered that the Council had omitted to provide information within the scope of the Request.

9.             On 20 December 2023, the Council provided the Appellant with the outcome of its internal review.  In essence, it stated that no further information was held by it within the scope of the Request.

10.         The Appellant contacted the Commissioner on 31 January 2024 to complain about the Council's response to the Request.

The Decision Notice

11.         Paragraphs 13 to 17 (inclusive) of the Decision Notice stated as follows:

"The Commissioner understands that the request seeks information about the number of individuals who have asked to inspect the council's accounts for specified time frames.

The Council has explained to the Commissioner that this information, being numbers, was collated by the Deputy Head of Finance, who is the relevant officer who receives these requests and therefore holds the relevant information. The Deputy Head of Finance is therefore considered to be the most appropriate officer to consult.

The Commissioner has reviewed the council's response to the request, and notes that information, being very low numbers, or 'nil', has been provided in response to the relevant parts of the request.

Having noted what information is sought (numbers) and the steps the council has taken to collate the information - consultation with the relevant officer who deals with public requests for inspections - the Commissioner considers that the council has undertaken appropriate steps to compile the information.

There is no evidence available to the Commissioner that suggests that the steps taken by the council to compile the information are deficient.".

12.         The Decision Notice accordingly recorded the Commissioner's view that, on the balance of probabilities, no further information was held by the Council within the scope of the Request.

The appeal

The grounds of appeal

13.         The Appellant's grounds of appeal were relatively lengthy.  The relevant material contention within the grounds of appeal was, in essence, that the Commissioner erred in concluding in the Decision Notice that no further information was held by the Council within the scope of the Request.

14.         The Appellant also stated in his grounds of appeal that:

a.             the Decision Notice had incorrectly referring to the Request relating to information about the 'number of requests to inspect accounts'; and

b.             in addition to seeking a reversal of the Commissioner's decision in the Decision Notice, the Appellant sought "Commensurate recommendations by the Commissioner to BCP Council to ensure the Council's commitment to remedy the existing defective internal FOI practices.".

15.         The Appellant's grounds of appeal also included the Appellant's views as to: 

a.             the inadequacy of the Council's responses to the Request;

b.             the inadequacy of record-keeping by the Council; and

c.              the failure of the Council to comply with its obligations under the LAAA.

The Tribunal's powers and role

16.         The powers of the Tribunal in determining this appeal are set out in section 58, 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.".

17.         In summary, therefore, the Tribunal's remit for the purposes of this appeal was to consider whether the Decision Notice was in accordance with the law.  In reaching its decision, the Tribunal may review any findings of fact on which the Decision Notice was based and the Tribunal may come to a different decision regarding those facts.  Essentially, the Tribunal is empowered to undertake a 'full merits review' of the appeal before it (so far as the Decision Notice is concerned).

Mode of hearing

18.         The proceedings were held by the cloud video platform.  The Tribunal Panel joined remotely, with the Appellant joining by telephone (rather than via video).  The Tribunal was satisfied that it was fair and just to conduct the hearing in this way.  The witness (see paragraph 21) was also in attendance, via video, at the hearing.  The Commissioner did not appear and was not represented.

19.         The Appellant was slightly late joining the hearing for technical reasons, but after he joined there were no interruptions of note during the hearing.

The evidence and submissions

20.         The Tribunal read and took account of an open bundle of evidence and pleadings.

21.         The open bundle included a witness statement on behalf of the Appellant.  The witness's statement was given in their capacity as an individual residing within the Council's district.  It is not necessary for us to identify this witness personally in this decision - therefore we merely refer to them as "the witness" and we mean no disrespect to them in doing so.

22.         All of the contents of the bundle, including all the submissions of the parties (as well as the submissions of the Appellant during the hearing), were read and taken into account, even if not directly referred to in this decision.

The relevant statutory framework [2]

General principles

23.         Section 1(1) provides individuals with a general right of access to information held by public authorities.  It provides:

"Any person making a request for information to a public authority is entitled—

(a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and

(b) if that is the case, to have that information communicated to him.".

24.         In essence, under section 1(1), a person who has requested information from a public authority is entitled to be informed in writing whether it holds that information.  If the public authority does hold the requested information, that person is entitled to have that information communicated to them.  However, those entitlements are subject to the other provisions of FOIA, including some exemptions and qualifications which may apply even if the requested information is held by the public authority (but those are not relevant for current purposes). 

Section 10 - Time for compliance with request

25.         So far as is relevant for current purposes, section 10 provides:

"(1) ... a public authority must comply with section 1(1) promptly and in any event not later than the twentieth working day following the date of receipt.".

Discussion and findings

Scope of the appeal

26.         As noted in paragraph 15, some of the Appellant's grounds of appeal (as well as his subsequent submissions, including during the hearing) related to his views on certain failings on the part of the Council.

27.         As we set out in paragraph 16 (and summarised in paragraph 17), the scope of the Tribunal's jurisdiction relates to the lawfulness of the Decision Notice.  Any other issues are beyond the Tribunal's powers to determine and fall outside of the scope of the appeal.  It is therefore outside of our remit to consider or make any finding in respect of those other matters raised by the Appellant.  Likewise, it is beyond our powers to make any recommendations as sought by the Appellant (as referred to in paragraph 14.b).

28.         However, as we have noted, the Tribunal may review any relevant findings of fact in the Decision Notice and may come to a different decision regarding those facts.  Essentially, the Tribunal is empowered to undertake a 'full merits review' of the appeal before it (so far as the Decision Notice is concerned).  That is what we have done.

Whether the Council had disclosed all of the Requested Information

29.         The Appellant's grounds of appeal stated that the Appellant had become aware that the Council's response to the Request was defective because he happened to learn by chance that another individual (the witness) had also had a "negative experience regarding BCP's contravention of the LAAA in respect of 2021/22 and 2022/23".  The Appellant explained that this led to him realising that (in contrast to the Council's original response to the Request) there were three electors in total who had not received information in due time under the LAAA for those two financial years.  In essence, this is what the witness statement addressed - namely that the response received by the Appellant to the Request did not accord with the witness's own direct knowledge of the additional number of requesting electors.

30.         In his grounds of appeal, the Appellant therefore asserted that the Council does not hold 'further information' within the scope of the Request; rather, he considered that the issue was that the Council did not disclose all of the Requested Information which it held.  In that regard, the Appellant considered that the Decision Notice should not have referred to whether further information was held by the Council.  However, we think that is merely a question of semantics.  This is because where the Decision Notice referred to the Council not holding 'further information', it was referring to information which had not already been disclosed in response to the Request.  We apply the same meaning below when we refer to the question of whether the Council held further information within the scope of the Request.

31.         We would also note that, notwithstanding section 1(1), it is not the role of either the Commissioner or the Tribunal to determine conclusively (or, in other words, with certainty) whether or not information is actually held by a public authority for the purposes of that section.  The Decision Notice correctly recorded that the legal test to be applied is the 'balance of probabilities' - in simple terms, this means that something is more likely than not to be the case.  Accordingly, in determining whether or not information is held on the balance of probabilities, a decision is often reached based on an assessment of the adequacy of the public authority's searches for the information (where relevant) and any other reasons explaining why the information is not held.

32.         As we will explain, the Commissioner, in essence, merely relied on the submissions of the Council that the "relevant officer" had been consulted in respect of the Requested Information, concluding (as we noted in paragraph 11) that the Council had therefore "undertaken appropriate steps" to compile the Requested Information.

33.         In his investigation, the Commissioner asked the Council (by email dated 24 April 2024) to provide details of the searches which had been carried out for the Requested Information, including details of any electronic searches which had been undertaken (as well as details of any consultation with specific officers which had been undertaken).  In its response dated 9 May 2024, the Council essentially referred back to the previous correspondence between it and the Appellant and reiterated the outcome of its internal review (as notified to the Appellant on 20 December 2023).  On 5 June 2024, the Commissioner emailed the Council asking for responses to the information requested by the Commissioner on 24 April 2024.  The Council's response, dated 12 June 2024, did not provide the requested information other than to state that, after the Appellant's request for an internal review, there had been "consultation" with the relevant Council officer and the internal review had concluded that the officer had carried out a search of the information held to provide the statistical answers.  Just over a week later (on 20 June 2024), the Commissioner issued the Decision Notice.

34.         The Council, therefore, did not provide the information which the Commissioner had requested as part of his investigation.  We consider that the provision of such information, at the very least, was necessary in order for the Commissioner to adequately determine whether (on the balance of probabilities) the Council held further information within the scope of the Request.  Our remit does not extend to the adequacy of the Commissioner's investigation, but in order to make our own determination of that issue (for the purposes of assessing the lawfulness of the Decision Notice) we would also normally have expected to see such information.  However, this was not necessary in the current case, for the following reasons.

35.         In connection with the Commissioner's investigation, the Appellant contacted the Commissioner on 8 May 2024, 9 May 2024 and 10 May 2024, providing details of responses from the Council relating to other requests for information which the Appellant had made.  In essence, the Appellant provided evidence to the Commissioner that the Council had separately disclosed additional aspects of the Requested Information following two subsequent information requests which the Appellant made on 26 December 2023 and 8 March 2024 (with Council reference numbers 10389 and 11267, respectively).  The Commissioner acknowledged in his response to the appeal that such evidence had been provided during the Commissioner's investigation.

36.         During the hearing, the Appellant confirmed that he had received all of the Requested Information from the Council.  The Appellant had also previously stated, in correspondence relating to the appeal, that the Council's responses under reference numbers 10389 and 11267 together provided, respectively, the correct number of qualifying LAAA information requesters other than the Appellant in respect of 2021/22 and 2022/23 and  copies of the dated responses by the Council to the latter LAAA requesters.  Those responses were also included in the bundle.

37.         In his response to the appeal, the Commissioner submitted that, because the Council had disclosed the Requested Information, the appeal should be allowed.

38.         That submission of the Commissioner was, to some extent, at odds with an earlier part of the Commissioner's response, which stated that he conceded the appeal to the extent that he should have concluded in the Decision Notice that the Council held some information which "could be responsive" to part 1.3(b) and part 1.3(c) of the Request. In contrast, the Appellant submitted that information relating to part 2 of the Request (the reciprocal items to part 1.3(b) and part 1.3(c), but regarding financial year 2022/23) had also not previously been disclosed by the Council (although, as noted, it had since been provided to the Appellant).

39.         It was, however, common ground between the parties that the Council had now disclosed all of the Requested Information.  We find that the subsequent disclosure by the Council (other than in response to the Request) of aspects of the Requested Information demonstrates that it did not communicate the Requested Information to the Appellant within the timescales required by section 10(1) and that, accordingly, the Council was in breach of that section.  It follows that we also find that the Commissioner was wrong to conclude, by way of the Decision Notice, that the Council did not (on the balance of probabilities) hold any further information within the scope of the Request.

Other observations

40.         We briefly include some other final observations.

41.         As we have noted, the Appellant stated in his grounds of appeal that the Decision Notice had incorrectly referring to the Request relating to information about the 'number of requests to inspect accounts'.  We agree that that was an inaccurate reflection of the Request (which was more accurately summarised by the Commissioner in his response to the appeal) but it was not material to our consideration of the appeal, as we assessed the Commissioner's findings in the Decision Notice in the context of the actual wording of (and responses to) the Request.

42.         The Appellant argued in the hearing that (with regard to the Commissioner's concession referred to in paragraph 38), the Commissioner should have accepted that the subsequently disclosed information was responsive to the Request (rather than 'could be', as stated by the Commissioner).  We agree that the Commissioner's language, given his concession, should have been less circumspect.

43.         Further, given that the Commissioner had been provided with evidence, during his investigation, demonstrating that the Council had not disclosed all of the Requested Information, we consider that it was remiss of the Commissioner to find (by way of the Decision Notice) that the Council did not hold any further information within the scope of the Request.

Final conclusions

44.         For all of the reasons we have given, we find that the Decision Notice involved an error of law in concluding that the Council did not (on the balance of probabilities) hold any further information within the scope of the Request.

45.         We therefore allow the appeal and we make the Substituted Decision Notice as set out above.

 

Signed:      Stephen Roper                                                                    Date: 22 April 2025

                   Judge of the First-tier Tribunal