Decision:
1. Appeal number FT/EA/2024/0037 is struck out.
2. The decision of the Information Commissioner dated 30 July 2024 (Ref. IC-286740-L3J7) is confirmed.
REASONS
The Application
- On 29 November 2024 the Respondent ("IC") applied for the Appeal to be struck out under Rule 8(3) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (the "Tribunal Rules").
Background
- On 24 August 2023 the Appellant wrote to the Police Fire and Crime Commissioner for Staffordshire (the "PFCC") in relation to a complaint he had previously made about the former Chief Constable in 2019. When he had escalated this to the Independent Office for Police Conduct ("IOPC"), the IOPC directed the PFCC to conduct an investigation on 14 October 2020 and the Appellant sought information about the progress of this investigation. The key request made by the Appellant, which is the subject of this Appeal, was as follows: "Considering the complaints directed for 'Investigation' by the IOPC are now some four years old without any apparent resolution; what has been the cost to the tax payer so far". The PFCC responded to this request saying this was not a valid request under the Freedom of Information Act 2000 ("FOIA") and that no information was held.
- On 4 February 2024, the Appellant complained to the IC. In the relevant Decision Notice ("DN") (Ref. IC-286740-L3J7) dated 30 July 2024, the IC considered the PFCC's evidence which stated "There are no systems or processes in place to make a record therefore, no mechanisms or methods available to ascertain any costings or estimated costings in this case or any other similar case. When dealing with cases/investigations/complaints staff are required to deal with matters accordingly and as part of business as usual, timings on these may vary for a variety of reasons."
- The IC concluded the DN by saying "The Commissioner considers this to be an entirely plausible explanation from the PFCC. Much in the same way as the Commissioner conducts his own investigations, the costs for doing so are not broken down to such a granular level. While appreciating the complainant's frustration that the PFCC does not record this information, the Commissioner is mindful of the comments made by the Information Tribunal in the case of Johnson/MOJ (EA 2006/0085) which explained that FOIA "...does not extend to what information the public authority should be collecting nor how they should be using the technical tools at their disposal, but rather it is concerned with the disclosure of the information they do hold." Based on the information provided, the Commissioner is satisfied that, on the balance of probabilities, this information is not held."
The Appeal
- The Appellant appealed on 24 August 2024 in respect of 2 separate decisions made by the IC, of which this decision was one, the other being decision reference Ref: IC-300802-Y7K8 which has been dealt with by the Tribunal under appeal number FT/EA/2024/0336.
- In Part 8 of the Notice of Appeal the outcome sought was seeking the IC's decision to be overturned and for the PFCC to provide the requested information. The grounds of appeal set out in Part 7 of the Notice of Appeal were as follows "The PFCC has in my view contributed to the reason why the FOI requests have been made. The PFCC has been aware of the very serious complaints issue since September 2019 without any sign of resolution and in my opinion has abused its power and position to cause serious obstructions to the complaints and criminal justice system. The PFCC is in breach of his elected and statutory duty to hold a Chief Constable to account but has failed to do so by employing a device which fails to comply with an IOPC direction made in October 202 to 'investigate' the complaints but the PFCC has only ever 'Scoped' the complaints information. This has caused unnecessary cost to the public purse and has become a matter of considerable public interest through the abuse of process and subversion of the complaints and criminal justice system."
- The IC responded on 29 November 2024 and set out in its Response under Rule 23 the grounds for seeking to strike the Appeal out under Rule 8(3)(c). It concluded its response with these submissions:
"The sole issue for the Tribunal to determine is, was the Commissioner's DN an error in law in deciding that, based on the explanation provided by PFCC, on the civil balance of probabilities, it did not hold the information requested?
Unfortunately, as the Tribunal will no doubt agree, the Appellant's lengthy Grounds of Appeal fail to deal with this issue at all. There is no reference to why costs might be held or challenge to the balance of probabilities. The Commissioner submits that the Appellant's chances of succeeding in this appeal are sufficiently slim such that it has no reasonable prospect of success per Rule 8(3)(c) of the 2009 Rules. There is nothing for the Commissioner to 'respond to' in respect of the grounds as sadly none of them engage the decision notice."
FOIA and the role of the Tribunal
- Under section 1(1) FOIA a person who has made a request to a 'public authority' for information is, subject to other provisions of FOIA, entitled to be informed in writing whether it holds the information requested (section 1(1) (a)) and if it does, to have that information communicated to them (section 1(1) (b)).
- When determining whether or not information is held the Commissioner and Tribunal has applied the normal civil standard of proof, on the balance of probabilities, for instance in Linda Bromley v the Information Commissioner and the Environment Agency (EA/2006/0072) at (§13), Malcolm v Information Commissioner EA/2008/0072, at (§24); Dudley v Information Commissioner EA/2008/008, at (§31), and Councillor Jeremy Clyne v Information Commissioner and London Borough of Lambeth EA/2011/0190 (Clyne) at (§21-22).
- The Tribunal in Clyne held that the 'issue for the Tribunal is not what should have been recorded and retained but what was recorded and retained.' (§38). The Tribunal was satisfied that a gap in the public authority's documentary records reflected 'inconsistent and poor administrative practice' but this did not amount to a breach of FOIA. I agree with the IC that this is further supported by the Tribunal's guidance in Sophie Dunwell v Information Commissioner EA/2016/0289 in which the Tribunal stated that:
"10. … The rights under these provisions is for recorded information (s84 FOIA) … a public authority is not required to create new information. Nor is a public authority required to draw inferences from information it holds, or ask members of staff what they know about a specific subject. …"
- The role of the Tribunal is set out in Section 58 FOIA and provides that:-
- If on an appeal under section 57 the Tribunal considers—
- that the notice against which the appeal is brought is not in accordance with the law, or
- 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.
- It is not part of the Tribunal's role to look into the way in which the complaint was investigated as opposed to the outcome. (see for example William Stevenson -v- Information Commissioner (EA/2015/0117) and Peter Wilson -v- The Information Commissioner [2022] UKFTT 149.)
Striking out an Appeal by Rule 8(3)(c) Tribunal Rules
- Rule 8 of the Tribunal Rules provides that: -
(3)The Tribunal may strike out the whole or a part of the proceedings if
(c) the Tribunal considers there is no reasonable prospect of the appellant's case, or part of it, succeeding.
- In HMRC -v- Fairford Group (in liquidation) and Fairford Partnership Group (in liquidation) [2014] UKUT 329 the Upper Tribunal summarised the task to be carried out by a Tribunal in these circumstances: -
"41. In our judgment an application to strike out in the FTT under Rule 8(3)(c) should be considered in a similar way to an application under CPR 3.4 in civil proceedings (whilst recognising that there is no equivalent jurisdiction in the First-tier Tribunal Rules to summary judgment under Part 24). The Tribunal must consider whether there is a realistic, as opposed to a fanciful (in the sense of it being entirely without substance) prospect of succeeding on the issue at a full hearing, see Swain v Hillman [2001] 2 All ER 91 and Three Rivers (see above) Lord Hope at [95]. A 'realistic' prospect of success is one that carries some degree of conviction and not one that is merely arguable, see ED & F Man Liquid Products v Patel [2003] EWCA Civ 472. The tribunal must avoid conducting a 'mini-trial'. As Lord Hope observed in Three Rivers, the strike out procedure is to deal with cases that are not fit for a full hearing at all"
- In AW-v-Information Commissioner and Blackpool CC [2013] 30 ACC the Upper Tribunal at paragraph 7ff set out the principles governing the application of rule 8(3)(c). These included: -
"7…It is well established in the ordinary courts that the historic justification for striking out a claim is that the proceedings are an abuse of process …. On that basis, the power should only be exercised in plain and obvious cases
8. More recent rulings from the superior courts point to the need to look at the interests of justice as a whole ….It is, moreover, plainly a decision which involves a balancing exercise and the exercise of a judicial discretion, taking into account in particular the requirements of Rule 2 of the GRC Rules."
Application procedure and matters considered
- As required by rule 8(4) the Appellant was informed of the IC's application and he has provided a response to it by way of his letters dated 3 December 2024 and 14 February 2025.
- In reaching my Decision I had regard to the GRC5 and the response to it, the DN, Notice of Appeal with supporting documentation and IC's Response. I also considered the overriding objective in Rule 2 of the Tribunal rules.
Conclusions
- It is clear that the Appellant has strongly held concerns about the way in which he says PFCC has been dealing with him and this request for information. The Tribunal does not have jurisdiction to deal with these wider concerns. The Tribunal does, however, have jurisdiction where the Appeal seeks to challenge the IC's conclusions in the DN regarding whether on balance of probabilities PFCC were to be taken to be correct (as the IC says) in saying certain information was not held.
- However, I agree with the IC in its Response when it submits that there is no reference in the grounds of appeal to why the Appellant believes information about costs might be held or challenge to the balance of probabilities applied by the IC in making the DN.
- I agree with the IC that if there is an issue about whether information is held or not that question is resolved on the balance of probabilities. I also agree that in the absence of some relevant indication otherwise that it can be appropriate for the IC to accept the public authority's (in this case PFCC's) position on this issue.
- I considered the Appellant's response to the application to strike out in his letters dated 3 December 2024 and 14 February 2025 as well as the Appeal itself to establish if there was something said that might indicate the IC should not have accepted PFCC's 'not held' position and if so what that was.
- I concluded that while the Appellant explains his concerns about PFCC (and generally), there was nothing said which provided enough of a challenge to PFCC's position and the IC's conclusions on this matter for there to be a reasonable prospect of the Appellant's case or part of it succeeding.
Decision
- Accordingly the Appeal is struck out by Rule 8(3)(c) of the Tribunal Rules because in my view it has no reasonable prospect of succeeding.
Signed Judge Harris
Date: 23 April 2025
