Decision: The appeal is Allowed
Substituted Decision Notice:
The Tribunal's Decision Notice in case reference EA/2023/0279, set out below, is substituted for the Information Commissioner's Decision Notice reference IC-199663-K9B6, dated 5 May 2023, with regard to the request for information made to the London Borough of Newham by Prakash Puchooa dated 20 June 2023.
Substituted Decision Notice
- The London Borough of Newham (the "Council") must make a fresh response to the request for information made to it by Prakash Puchooa dated 20 June 2023.
- Subject to paragraph 3 below, the fresh response must:
a. specify what searches were undertaken, including details of what systems and records were searched and what key words were used as search terms in respect of any searches for information which is held electronically;
b. specify what other enquiries (if any) were made to identify whether further information is held within the scope of that request;
c. make clear whether or not any further information (beyond that already disclosed) is held within the scope of that request; and
d. disclose any such further information if it is held, or claim any relevant exemptions to disclosure pursuant to the Freedom of Information Act 2000 (the "Act").
- The Council is not obliged to respond in accordance with paragraph 2 above if and to the extent that the duty to confirm or deny does not arise in accordance with any applicable provision of the Act. However, if the duty to confirm or deny does not arise then the Council must cite the applicable exemption and its reasons in its fresh response.
- The Council must issue the fresh response within 35 days of this decision being sent to it in accordance with the directions below, or (if there is an application to appeal this decision) within 28 days after being notified of an unsuccessful outcome to such application or any resulting appeal.
- The fresh response will be subject to the rights given under section 50 of the Freedom of Information Act 2000 to make a new complaint to the Information Commissioner.
- Failure to comply with this decision may result in the Tribunal making written certification of this fact pursuant to section 61 of the Freedom of Information Act 2000 and may be dealt with as a contempt of court.
Directions
The Information Commissioner is directed to send a copy of this decision to the London Borough of Newham within 14 days of its promulgation.
REASONS
Preliminary matters
- In this decision, we use the following terms to denote the meanings shown:
| 2019 Letter: |
The letter from the Council to the Appellant dated 27 June 2019. |
| 2020 Email: |
The email from the Council (Mayor's office) to the Appellant dated 6 May 2020. |
| Appellant: |
Prakash Puchooa. |
| ASB: |
Anti-Social Behaviour. |
| Commissioner: |
The Information Commissioner (the Respondent). |
| Council: |
The London Borough of Newham. |
| Decision Notice: |
The Decision Notice of the Commissioner dated 5 May 2023, reference IC-199663-K9B6, relating to the Request. |
| FOIA: |
The Freedom of Information Act 2000. |
| Mayor: |
The Mayor of the Council. |
| PCSO: |
Police Community Support Officer. |
| Request: |
The request for information made to the Council by the Appellant dated 20 June 2023, as set out in paragraph 6. |
- 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.
- Nothing we say in this decision should be taken as an indication that any further information within the scope of the Request is held by the Council.
Introduction
- This was an appeal against the Decision Notice, which (in summary) decided that the Council had disclosed all of the information it held within the scope of the Request. The Decision Notice did not require the Council to take any steps.
Background to the Appeal
- The background to the appeal is as follows.
The Request
- On 20 June 2023, the Appellant contacted the Council by email and requested information in the following terms:
"On 6 May 2020, you responded to my request to stop antisocial behaviour on [address redacted]. Please see the document entitled, Correspondence - Mayor, which lists all correspondence between the Mayor and I. You refused to look into this matter, stating that the ASB team had investigated this matter. Among your comments, you mentioned that there was no ASB and that I was implicitly responsible for causing tension in the area. This contradicts the Council's own ASB letter sent in June 2019, addressing ASB head on. (see pdf document attached).
1. Under the FOI Act, could you please provide the names of the ASB officers, who reached this conclusion since I have not dealt with Newham ASB officers, other than [name redacted] (see PDF document).
2. Could you please clarify whether these were, in fact, ASS officers or PCSOs who work in the area?
3. Could you also disclose information about how they reached their decision regarding ASB in the area
4. and their conclusion that I was an instigator?
5. I have attached correspondence between PCSO [name redacted] and myself dated back to 2019, which shows that ASB was a concern. This contradicts the conclusion of the Mayor's Office.
This information is needed to understand the council's decision-making process.".
- The Council responded on 15 July 2022. In summary, it stated as follows, for each numbered item of the Request:
a. items 1 and 2: there was no information held, as there were no other ASB officers investigating the Appellant's case;
b. item 3: an ASB officer would consider all relevant aspects in their decision making process to conclude the case on the action taken and actions taken would have been outlined to the Appellant in letters from the ASB officer;
c. item 4: the information would be exempt under section 40(1); and
d. item 5: commenting on individual cases was outside of the scope of FOIA.
- The Appellant requested an internal review on 29 August 2022. He disagreed with the responses to items 1 to 3 (inclusive) of the Request, stating that the relevant ASB officer had not dealt with anything after 2019. He also stated that he was still unaware of how the decision referred to in the 2020 Email Request was reached. In essence, the Appellant considered that more information must be held by the Council within the scope of the Request.
- The Council responded on 9 December 2022 with the outcome of its internal review. It stated that it considered its previous responses to have been factually correct and reiterated that the ASB officer assigned to the Appellant's case was the only ASB officer involved. It also stated that other officers, from other sections of its Law Enforcement team, as well as the PCSO team, had responded directly to the Appellant in relation to his reports made to the Council.
- On 31 October 2022 (prior to receiving the Council's outcome of its internal review), the Appellant contacted the Commissioner to complain about the Council's response to the Request. The Commissioner therefore contacted the Council asking it to carry out the requested internal review (which was subsequently provided on 9 December 2002, as stated above). On 20 December 2022, the Appellant's complaint was accepted by the Commissioner for his investigation.
- During the course of the Commissioner's investigation, the Council changed its position in relation to item 4 of the Request (with regard to recorded information about why the Council had concluded the Appellant was an instigator), stating in an email to the Commissioner dated 17 January 2023 that it should not have cited section 40(1), but instead its response should have been that that the information had already been provided in the 2019 Letter[1].
- Following correspondence from the Appellant dated 23 January 2023, the Commissioner considered that the scope of his investigation was to determine whether any further recorded information was held in relation to items 1 to 4 (inclusive) of the Request.
The Decision Notice
- Paragraph 15 of the Decision Notice recorded the Commissioner's view that he considered that the Appellant's complaint related to the Appellant's belief that:
a. ASB officers or PCSOs, other than the initial ASB officer assigned, must have provided advice to the Mayor and accordingly the Council should have provided additional names; and
b. there should be recorded information held by the Council which shows why the Appellant was labelled as an instigator.
- The Decision Notice also recorded that the Council had asserted throughout that there were no other ASB officers involved. The Commissioner stated in the Decision Notice that he could appreciate why the Appellant believed this to be untrue, based on communications which the Appellant had with the ASB officer in January 2020, but that the Commissioner was also "aware that that Officer may well have been asked to comment on issues after this date and would already have documented his findings before May 2020 so it is entirely possible the letter was based on his findings".
- With regard to whether any other information may be held by the Council which sets out how conclusions were reached, the Decision Notice recorded that the Council had explained how an ASB officer would make a decision (and had also re-sent the 2019 Letter to the Appellant setting out the conclusions reached and explaining this) and that no other recorded information was held. The Commissioner stated that he "has seen no evidence to dispute this position".
- 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
- The main contention of the Appellant in his grounds of appeal was, in essence, that the Commissioner was wrong to simply accept the word of the Council. In part, this was because the 2019 Letter did not infer or demonstrate that the Appellant was an 'instigator' which was in stark contrast to the position reflected in the 2020 Email and therefore the Appellant considered that the same ASB officer could not have been responsible for both pieces of correspondence.
- We address later below the material aspects of the Appellant's arguments in grounds of appeal.
- We would briefly note that the Appellant's grounds of appeal made reference to other matters, such as a complaint he had made to the Metropolitan Police Professional Standards, but those other matters fall outside the scope of this appeal (see paragraphs 20 and 21) and accordingly we have not addressed them in this decision.
The Tribunal's powers and role
- 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.".
- 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
- The proceedings were held by the cloud video platform. The Tribunal Panel and the Appellant joined remotely. The Tribunal was satisfied that it was fair and just to conduct the hearing in this way. The Commissioner did not appear and was not represented.
- There were no interruptions of note during the hearing.
The evidence and submissions
- The Tribunal read and took account of an open bundle of evidence and pleadings.
- 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
- 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.".
- 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).
Discussion and findings
- We start by noting 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.
- The Appellant's grounds of appeal referred to four aspects of the Decision Notice, which we address in turn below. In his response to the appeal, the Commissioner generally relied on the Decision Notice as setting out his findings and the reasons for those findings, but we refer below to other relevant points set out in his response.
- First, the Appellant submitted that the Commissioner, in paragraph 8 of the Decision Notice, had relied on the Council's reasoning that referring to the Appellant as an 'instigator' in the 2020 Email was information which had already been provided in the 2019 Letter[3]. This was relevant to item 4 of the Request, as the May 2020 Email had effectively suggested that the Appellant had been responsible for causing or escalating tensions in his neighbourhood (which is the relevant context to be applied when we use the term 'instigator' below). The Appellant accepted that the Commissioner had not included this in the part of the Decision Notice under the heading "Reasons for decision" but rather within the "Scope of the case" section of the Decision Notice, but nevertheless contended that the Commissioner had wrongly accepted the Council's reasoning.
- The Appellant referred to the 2019 Letter to explain why he considered that it did not contain reference to him being the instigator. We agree with the Appellant's assessment of the 2019 Letter, which (in summary) was that it essentially recorded that certain action had been taken following the Appellant's complaint about ASB in his neighbourhood, including that parents had been spoken to regarding children causing a nuisance. Likewise, we also find that the 2019 Letter made no reference to, or implied in any way that there was, any wrongdoing on the Appellant's part. We therefore agree with the Appellant's submissions that it is unreasonable to conclude that the 2019 Letter included information referring to the Appellant as an 'instigator'.
- For those reasons, we find that the 2019 Letter did not provide the information which was requested by way of item 4 in the Request. We comment further below on matters relating to item 4 of the Request.
- Secondly, the Appellant referred to the statement in paragraph 16 of the Decision Notice to the effect that the ASB officer may have been asked to comment on issues after January 2020 and would already have documented his findings before May 2020 and consequently it was possible that the 2020 Email was based on his findings. The Appellant's position was that the Commissioner was relying on assumptions. The Appellant submitted that no comparison could be made between the 2019 Letter and the 2020 Email on the basis that the findings of the ASB officer had been clearly set out in the 2019 Letter (which we summarised in paragraph 31). He also explained that the ASB officer stated in an email dated 27 January 2020 that they were no longer dealing with the case. The Appellant also considered that it was illogical to argue that the same ASB officer who previously accepted (in the 2019 Letter) that there was ASB in the Appellant's neighbourhood is now the same officer arguing (as alluded to in the 2020 Email) that there was no such ASB and that the Appellant was an instigator. Accordingly, the Appellant submitted that it was wholly erroneous to make assumptions that the ASB officer contributed to the May 2020 Email in the absence of any clear evidence indicating that they had.
- In his response to the appeal, the Commissioner commented that he had acknowledged in the Decision Notice that he understood why (given the ASB officer's email dated 27 January 2020) the Appellant would believe that another individual may therefore have been responsible for the contents of the 2020 Email. However, the Commissioner reiterated that the Council has confirmed that no other ASB officer was involved in this matter and referred back to his statement in paragraph 16 of the Decision Notice.
- The Commissioner also stated in his response that the Council had acknowledged in its internal review that other officers from other sections of the Council's Law Enforcement team as well as the PCSO team had responded to ASB reports made to the Council and consequently the Council had not disputed that other officials had been involved.
- The Commissioner therefore stated in his response that he remained of the view that the only ASB officer to have been involved was the individual who sent the 2019 Letter. The Commissioner referred to Oates v Information Commissioner and Architects Registration Board[4] where the First-tier Tribunal recognised that "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". The Commissioner's view was that he was therefore correct to conclude, on the balance of probabilities, no further information is held other than that which has been provided to the Appellant.
- We agree with the general premise cited in the Oates case. However, in our view the Commissioner had no sound basis on which to form his view as recorded in paragraph 16 of the Decision Notice. In essence, we consider that that view was based on conjecture as there was no corroborating evidence to support such a conclusion. We consider that the Appellant put forward cogent arguments as to why there may be another ASB officer involved. However, even if that were not the case (as per the Commissioner's view) then it does raise the question as to why there was such a change in the position recorded in the 2020 Email compared to the 2019 Letter. Accordingly, we consider that should itself have led the Commissioner to explore further with the Council whether there was any other recorded information which would explain that changed position. However, the Commissioner did not do so and, as we have stated, based his view on conjecture about what might have happened (and apparently without any curiosity as to why there was such a change in the position).
- More fundamentally, the 2020 Email did not merely set out the Council's views on matters but it actually cited a separate response which it stated had been provided by the Council's ASB team. Accordingly, there was evidently other recorded information held by the Council (namely, the response from the ASB team which was quoted in the 2020 Email) which itself was not provided in response to the Request (and which was also not included in the bundle in the appeal). We accept the possibility that that response from the Council's ASB team may no longer have been held at the time of the Request, but the relevant point is that this was not explored by the Commissioner. Accordingly (and having regard to the principle cited in Oates) there was relevant evidence which meant that the Commissioner should have investigated further.
- Further, the Commissioner referred in paragraph 16 of the Decision Notice to the possibility that the ASB officer would already have documented their findings before the 2020 Email. As the Commissioner therefore considered that there may be documentation relating to the ASB officer's findings then the Commissioner should have investigated this. There was no evidence before us of any investigation or explanation regarding the potential existence of such records (nor of any disclosure of any records relating to any such documented findings). Therefore, the Commissioner took into account, in his findings in the Decision Notice, the possibility that there may be other documented findings but did not explore this issue further and nevertheless concluded that (on the balance of probabilities) no further information was held by the Commissioner. That was self-evidently erroneous.
- We would also comment that, as noted, there was a clear change in the Council's position from the 2019 Letter to the 2020 Email, with the former effectively stating that there had been ASB in the Appellant's neighbourhood and the latter effectively stating that there had not been. We think that it is doubtful that such a change in position would occur without some other documentation relating to it, such as staff notes or emails, or minutes of meetings – at least, we consider that the possibility of such documentation should have been explored by the Commissioner. Again, as there had been no adequate investigation or explanation regarding the possibility of such other records then we consider that it was not appropriate to conclude, on the balance of probabilities, that no further information existed within the scope of the Request.
- Thirdly, the Appellant referred to paragraph 18 of the Decision Notice which stated that the Council had explained how an ASB officer would make a decision and that it had re-sent the 2019 Letter setting out the conclusions reached and explaining this. The Appellant's position was, effectively, that this was not actually reflected in the 2019 Letter, which had simply confirmed that there had been ASB and that certain actions had been taken as a result.
- We agree that the 2019 Letter did not set out how the ASB officer made their decision (but rather it just recorded that there had been ASB and that certain actions were taken, as we noted above). Accordingly, we find that the 2019 Letter did not disclose information regarding how the officer(s) in question reached their decision, as requested by way of item 3 of the Request. We consider that it should have been clear to the Commissioner that the Council's response to the Request was inadequate in this regard.
- Fourthly, the Appellant cited the statement in paragraph 17 of the Decision Notice which stated that the Commissioner "has no reason to dispute the statement made by the Council that no other ASB Officer was involved". The Appellant referred to his earlier argument that the 2020 Email did not align with the 2019 Letter and he considered that that alone was sufficient to dispute the Council's approach and conclusions.
- For the same reasons we gave in paragraph 37, we agree with the Appellant that there was reason for the Commissioner to dispute (or at least question) the Council's statement that no other ASB officer was involved. Further, as noted in paragraph 9, the Council had acknowledged that other officials had been involved and, even if they were not ASB officers, in our view it was clear from item 2 of the Request that the Appellant had sought to know what officers were involved. Given that the Commissioner was aware that other officials were involved, this is another reason why the Commissioner should have considered that the Council's response to the Request was inadequate.
- In respect of item 4 of the Request, the Commissioner's submitted in his response to the appeal that if any further information were held (other than the 2020 Email) explaining why the Council had concluded that the Appellant was the instigator, this would probably comprise the Appellant's own personal data and would therefore be exempt from disclosure under section 40(1) (in accordance with the Council's original response to this part of the Request).
- We agree with the Commissioner that, to the extent that any information is held by the Council relating to item 4 of the Request, it would inevitably (given that it would have to relate to the Appellant) constitute personal data of which the Appellant is the data subject and according that it would be exempt information pursuant to section 40(1). Accordingly, the appropriate route for the Appellant in seeking that information would have instead been by way of a subject access request pursuant to the UK GDPR. We would observe incidentally, though, that the Council had considered that the information had already been provided in the 2019 Letter (see paragraph 11) but, as we have noted, the 2019 Letter does not refer to the Appellant being the instigator and accordingly we consider that it does not pertain to item 4 of the Request.
- We end by briefly commenting, for completeness, on item 5 of the Request. As we have noted, the Council's response to the Request was that commenting on individual cases was outside of the scope of FOIA. We consider that item 5 was not actually a request for information, but rather a clarificatory statement from the Appellant regarding other correspondence with the Council to help provide context as to why he had queried (with regard to the other items in the Request) the position which was reflected in the May 2020 Email.
Final conclusions
- 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.
- We therefore allow the appeal and we make the Substituted Decision Notice as set out above.
Signed: Stephen Roper
Judge of the First-tier Tribunal
Date: 28 April 2025
