Appeal No. UA-2024-001502-GIA
Between
GERRY WOODHOUSE
Appellant
- v -
THE INFORMATION COMMISIONER
First Respondent
AND
POTTO PARISH COUNCIL
Second Respondent
Before: Upper Tribunal Judge M Brewer
Decided on consideration of the papers
On appeal from:
Tribunal: First-tier Tribunal (General Regulatory Chamber)
Tribunal Case No: EA/2024/0028
Neutral citation number: [2024] UKFTT 000751 (GRC)
Tribunal Venue: Considered on the papers
Decision Date: 20 August 2024
DECISION
The decision of the Upper Tribunal is to allow the appeal. The decision of the First-tier Tribunal made on 20 August 2024 under EA/2024/0028 was made in error of law. Under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 I set that decision aside and remit the appeal to be decided by a differently constituted First-tier Tribunal.
DIRECTIONS
The new First-tier Tribunal should not involve either the tribunal judge or the two members who were previously involved in considering this appeal on 20 August 2024.
These directions may be supplemented by later directions issued by the Tribunal Caseworker, the Registrar or a Tribunal Judge in the General Regulatory Chamber of the First-tier Tribunal.
OBSERVATION
The Tribunal may wish to consider the following: (i) the factual disputes in this case may require oral evidence; and (ii) requesting the complete press articles cited by Mr. Woodhouse, as only extracts currently appear in the appeal bundle.
REASONS FOR DECISION
Introduction
This appeal relates to the Information Commissioner's (‘the Commissioner’) decision about a Freedom of Information request. Mr. Woodhouse asked Potto Parish Council (‘the Council’) for a copy of a letter (“the PIR letter”). Extracts of this letter, which criticised Mr. Woodhouse, appeared in the Daily Mail and The Sun. One newspaper said the letter was from the Council to Potto Parish residents. The Council told the Commissioner they never published the letter, nor did they hold it. The Commissioner accepted there was no evidence that the Council held the letter. When Mr. Woodhouse appealed to the First-tier Tribunal (‘the Tribunal’), they agreed with the Commissioner's finding.
Issues on appeal to the Upper Tribunal
The central issue in this appeal is whether the Tribunal erred in law by failing to consider material evidence relevant to considerations including:
whether the information (Public Interest Report letter) had an appropriate connection to the Council in that it was for the purpose of carrying out the Council’s functions as a public authority.
the content of the information in the PIR letter.
the circumstances in which it was created.
and how was it held.
Factual background to the appeal
In July 2022, following an external audit of the Council, the auditors published a Public Interest Report (PIR). The PIR highlighted concerns about the Council's handling of FOIA requests and correspondence. Mr. Woodhouse alleges the Council sent a letter (“the PIR letter”) to select Potto residents encouraging them to attend a Council convened meeting about the PIR's financial impact. He believes the Council has blamed him and his FOIA requests and complaints for these financial consequences in their communications to residents and media.
On 3 July 2023, Mr. Woodhouse submitted a 15-part Freedom of Information request to the Council, of which he now only challenges the Tribunal's reasoning regarding Part 5, concerning this alleged PIR letter.
The request made was as follows:
Potto Council produced and published a ‘letter’, shortly after the July 2022 PIR, see Press extract below:
The letter states: “Not only does your parish Council need your support (they are only volunteers trying to make our lives her in Potto better) but you need to protect your right to have control over your finances. If you value our current parish council and you appreciate all the good work they have done recently, show your support and attend the meeting. We may have to pay £500 this year, but what will it cost us all next year if these “petty complaints continue?”
The Council responded on 25 July 2023, stating they had not published the PIR letter. Subsequently the Council clarified to the Commissioner that:
We can confirm that Potto Parish Council did not produce or receive a copy of the letter noted, we understand that it was addressed to residents directly, it may have gone to individual Councillors personal emails but we cannot confirm this, we also believe that it was published on the local village Facebook pages (Potto Patter) which are not in any way part of the parish council, we can confirm that it was not received by the parish council therefore we do not hold a copy.
In support of his appeal to the Tribunal, Mr. Woodhouse relied on further extracts of media articles and other documents as evidence that the Council had produced the PIR letter circulated to residents and media. This evidence included an extract of text from a Council publication from early August 2022 stating:
Every household in the parish of Potto is being affected by the on-going campaign of vexatious behaviour from this single individual. The parish council would welcome your comments at the meeting.
He also referenced and provided extracts from regional and national media news outlets (bold added):
In a letter to villagers, the Council said: 'Are you aware that one person in the village has raised 366 complaints and objections about the parish Council's activities? [emphasis added] (Mail Online article, 8 September 2022)
Potto is overseen by Hambledown District Council but is also run by the parish council, which is made up of volunteers. A letter, seen by Teeside Live, has now been sent out to residents in the village calling for support for the parish council. The letter states: “Not only does your parish council need your support (they are only volunteers trying to make our lives here in Potto better) but you need to protect you right to have control over your finances. If you value our current parish council and you appreciate all the good work they have done recently, show your support and attend the meeting. We may have to pay £500 this year, but what will it cost us all next year if these ‘petty’ complaints continue.?” (Yorkshire Live, 7 September 2022)
A letter sent out to the parish called for locals to band together and support the council. The letter states: “Not only does your parish council need your support (they are only volunteers trying to make our lives here in Potto better) but you need to protect your right to have control over your finances. (Sun article, 8 September 2022)
Teeside Live has now reportedly seen a letter, sent out in the village,calling for support for the parish council. The letter states “Not only does your parish council need your support they are only volunteers trying to make our lives her in Potto better! But you need to protect your right to control over your finances. If you value our current parish council and you appreciate all the good work, they have done recently show your support and attend the meeting. (Teeside Live, circa early September 2022)
Based on these extracts, Mr. Woodhouse argued that under section 3(2)(b) of FOIA, even if the letter was physically held by third parties such as individual Councillors, the letter should be considered as held by the Council because it was conducting the business of the Council. Mr Woodhouse identified that the Council’s clerk was a member of PottoPatter, where the letter was published.
The Commissioner did not uphold Mr. Woodhouse's complaint, concluding that "on the available evidence and on the balance of probabilities, the Council has correctly confirmed that it holds no additional information." The Commissioner found that the Council had complied with section 1 of FOIA regarding these parts of the request. Mr. Woodhouse subsequently appealed to the Tribunal against the Commissioner's decision notice.
The Tribunal directed that the Council be made a party to the appeal as a second respondent at the invitation of the Commissioner. The Council indicated to the Tribunal that they did not have the resources to participate on the appeal.
The Tribunal heard and then dismissed Mr Woodhouse’s appeal on 20 August 2024. He sought permission to appeal the Tribunal's decision, which was refused by the Tribunal but subsequently granted by the Upper Tribunal.
The appeal specifically challenges the lawfulness of the Tribunal's reasoning with respect to Part 5 of the original request regarding whether the Council ‘held’ the PIR letter.
The legal and policy framework
Information ‘held’ by a public authority
Section 1(1) of FOIA affords a person a general right, subject to exemptions, to know:
if a public authority ‘holds’ requested information, and
if it does, to have such information communicated to them.
Schedule 1, Part II, paragraph 7(a) defines a public authority, so far as material, as:
A local authority within the meaning of the Local Government Act 1972, namely –
in England,….., a parish council.
Section 3(2) of FOIA sets out the criteria for when information is held by a public authority for the purposes of the Act (bold added):
it is held by the authority, otherwise than on behalf of another person, or
it is held by another person on behalf of the authority.
The Commissioner, in accordance with section 45 of FOIA, issued a Code of Practice to provide guidance to public authorities in respect of its duties under FOIA. As provided within the Code of Practice, further guidance is published by the Commissioner alongside the Code.
The Code of Practice at 1.10 states:
Information is ‘held’ by the public authority if it is retained for the purposes of the public authority’s business. Purely personal, political, constituency, or trade union information, for example, will not be ‘held’ for the purposes of the Act and so will not be relevant for the purposes of the request. Where a public authority holds or stores information solely on behalf of another person or body that material will also not be ‘held’ by that authority for the purposes of the Act.
1.12 of the Code provides guidance to public authorities on the conduct of such searches:
Public authorities need to search for requested information in order to communicate to the applicant whether the information they are seeking is held or not held by that public authority. These searches should be conducted in a reasonable and intelligent way based on an understanding of how the public authority manages its records. Public authorities should concentrate their efforts on areas most likely to hold the requested information. If a reasonable search in the areas most likely to hold the requested information does not reveal the information sought, the public authority may consider that on the balance of probabilities the information is not held.
The Commissioner’s published guidance states:
There will be occasions where a requester disputes that:
you don’t hold particular information; or
you have provided all the information you hold.
In these circumstances, it is important to demonstrate that you have carried out reasonable searches to identify all the relevant information that you hold.
…..
The Bromley case determined that it was acceptable for the Commissioner to rely on the results of a public authority’s searches – providing that those searches were appropriate and thorough. This principle has been consistently applied in Tribunal judgments since then and informs our approach to such cases.
…..
When deciding whether it is more likely than not that you have located all relevant information, the ICO looks at whether your search is a reasonable one. As well as considering the circumstances of the case, the ICO also takes into account the following:
Have you correctly identified the scope of the request?
What searches have you undertaken? Are they reasonable, and why?
Are there any business reasons why you should hold the information? Or any evidence suggesting that you do hold it?
Is there a legal requirement for you to hold this information?
What does your records management policy say about information of the type specified in the request?
Are there any other reasons why you should or should not hold further information?
Have you reviewed how reasonable your search was, in light of what has or has not been located or in view of new information?
Have you considered if anyone else does or could hold any of the information within scope of the request on your behalf? If so, have you asked them and are you satisfied with their response?
The ICO will ask for this information during the investigation. If you are unable to evidence the searches and enquiries conducted, you may be asked to carry out further searches and enquiries. It is therefore good practice to keep a record of any searches that you have carried out, particularly if the requester thinks you hold more information. You should record the areas of the organisation that you searched and the staff you consulted. If you conduct electronic searches, you should keep a record of the keywords, accounts and time parameters used.
In University of Newcastle upon Tyne v Information Commissioner and BUAV [2011] UKUT 185 (AAC) at [22], Judge Wikeley, accepted the following statement of the First-tier Tribunal as an accurate analysis of the effect of section 3(2) of FOIA:
[47] The effect of this subsection is to confirm the inclusion of information within the scope of FOIA s1 which might otherwise have been arguably outside it. The effect of paragraph (a) is that information held by the authority on behalf of another is outside s.1 only if it is held solely on behalf of the other: if the information is held to any extent on behalf of the authority itself, the authority ‘holds’ it within the meaning of the Act. The effect of paragraph (b) is that the authority ‘holds’ information in the relevant sense even when physically someone else holds it on the authority’s behalf.”
He went to confirm that the approach set out by the Tribunal to the question of whether a public authority “holds” information as an accurate statement of the law:
[47] ‘Hold’ is an ordinary English word. In our judgment it is not used in some technical sense in the Act. We do not consider that it is appropriate to define its meaning by reference to concepts such as legal possession or bailment, or by using phrases taken from court rules concerning the obligation to give disclosure of documents in litigation. Sophisticated legal analysis of its meaning is not required or appropriate. However, it is necessary to observe that ‘holding’ is not a purely physical concept, and it has to be understood with the purpose of the Act in mind. Section 3(2)(b) illustrates this: an authority cannot evade the requirements of the Act by having its information held on its behalf by some other person who is not a public authority. Conversely, we consider that s.1 would not apply merely because information is contained in a document that happens to be physically on the authority’s premises: there must be an appropriate connection between the information and the authority, so that it can be properly said that the information is held by the authority. For example, an employee of the authority may have his own personal information on a document in his pocket while at work, or in the drawer of his office desk: that does not mean that the information is held by the authority. A Government Minister might bring some constituency papers into his departmental office: that does not mean that his department holds the information contained in his constituency papers.
The above Upper Tribunal decision was cited with approval in The Scottish Ministers v The Scottish Information Commissioner [2023] CSIH 46 at [13]
The critical question was not whether Mr Hamilton, as an independent adviser, was to be regarded as a separate entity, but whether any information held by Mr Hamilton was held by the Ministers for the purposes of s 3(2) of FOISA. In order to determine whether an authority held information, a number of factors required to be considered, including: whether the information had an appropriate connection with the public authority in that it was for the purposes of carrying out the authority’s functions as a public authority (University of Newcastle upon Tyne v Information Commissioner [2011] UKUT 185 (AAC); Graham v Scottish Information Commissioner 2020 SC 199); the content of the information; the circumstances in which it was created; and how it was held. [emphasis added]
The Court went on to state at [55]:
It is important to stress that the effect of adopting a non-technical approach to the concept of holding information will not create undue problems for public authorities. In this connection the scheme of FOISA needs to be viewed as a whole. The point was well put by Judge Wikeley in University of Newcastle upon Tyne at para 41:
“… a key feature of the FOIA regime is the need to balance the interests of the requester and the public interest in the free flow of information with the legitimate interests of public authorities and third parties. Moreover, that balance is struck not by over-complicating the simple factual concept of whether information is “held” by a public authority – rather, it is achieved by the matrix of absolute and qualified exemptions and the application, where appropriate, of the public interest test.”
The Information Commissioner’s functions
Section 50 of FOIA establishes the complaint system through which the Commissioner oversees public authorities' handling of information requests. As the primary guardian of information rights, the Commissioner receives complaints, evaluates facts, and makes binding decisions that authorities must follow. For every complaint investigated, the Commissioner must issue a formal decision notice—whether finding compliance or violations. When violations occur, the Commissioner details the failures and orders specific corrective steps with firm deadlines. When finding proper compliance, the Commissioner must explain the supporting reasoning. If declining to investigate, the Commissioner must provide clear reasons why.
Section 51 of FOIA gives the Commissioner power to require information from a public authority if it is reasonably required to carry out its tasks. The Commissioner can issue "information notices" that specify what information authorities must provide and by when. These notices can demand specific formats for responses and extend beyond documents to include unrecorded information known by staff. The Commissioner's power applies during complaint investigations. This investigative authority forms the backbone of the Commissioner's ability to make informed decisions.
The Commissioner has a broad discretion whether it will investigate a complaint and if so to what extent, based on the facts of the case.
The First-tier Tribunal’s role in the determination of an appeal under section 58 FOIA
Section 57 of FOIA provides a right of appeal to the complainant or public authority against the Commissioner’s decision notice. It is now well-established that section 58 of FOIA provides that the First-tier Tribunal determining the appeal, must step into the Commissioner's shoes and the proceedings are inquisitorial. When a Tribunal allows an appeal, it takes on full decision-making power. The Tribunal replaces the Commissioner's judgment with its own. It weighs evidence directly. It applies the law independently. The Tribunal does not simply identify errors but resolves the dispute. Its powers match those the Commissioner had when the original decision was made.
Adequate reasons
Peter Jackson LJ, in Re B (A Child) (Adequacy of Reasons) [2022] EWCA Civ 407 gave the following guidance on the approach to judgment-writing:
Judgments reflect the thinking of the individual judge and there is no room for dogma, but in my view a good judgment will in its own way, at some point and as concisely as possible:
state the background facts
identify the issue(s) that must be decided
articulate the legal test(s) that must be applied
note the key features of the written and oral evidence, bearing in mind that a judgment is not a summing-up in which every possibly relevant piece of evidence must be mentioned
record each party's core case on the issues
make findings of fact about any disputed matters that are significant for the decision
evaluate the evidence as a whole, making clear why more or less weight is to be given to key features relied on by the parties
give the court's decision, explaining why one outcome has been selected in preference to other possible outcomes.
The last two processes – evaluation and explanation – are the critical elements of any judgment. As the culmination of a process of reasoning, they tend to come at the end, but they are the engine that drives the decision, and as such they need the most attention. A judgment that is weighed down with superfluous citation of authority or lengthy recitation of inessential evidence at the expense of this essential reasoning may well be flawed."
At [24], the Court of Appeal in C, D and E (Care Proceedings: Adequacy of Reasons) [2023] EWCA Civ 334 observed of the above:
“In suggesting this approach, Peter Jackson LJ was plainly not being overly prescriptive. Judges adopt different approaches to writing judgments. Some leave all their analysis to the end, whereas others include parts of it at various points in the judgment. There is no hard and fast rule about this. Peter Jackson LJ acknowledged as much in Re S (A Child: Adequacy of Reasons) [2019] EWCA Civ 1845 at paragraph 34):
"I would also accept that a judgment must be read as a whole and a judge's explicit reasoning can be fortified by material to be found elsewhere in a judgment. It is permissible to fill in pieces of the jigsaw when it is clear what they are and where the judge would have put them. It is another thing for this court to have to do the entire puzzle itself."
The First-tier Tribunal’s decision
The Tribunal dismissed the appeal (Part 5 of the request). The Tribunal drew the distinction between information held by individuals who are also parish Councillors compared to information officially held by the parish Council as the public authority. Their reasoning noted that in a small community with an active Facebook page, communications visible to those on the Facebook page, who are parish Councillors, should not be taken as information being formally sent to or held by the Council. The Tribunal concluded:
“[t]he Commissioner, on the balance of probabilities decided that it was not. There is no evidence upon which that conclusion may be overturned.”
In the Tribunal’s reasons for refusing permission to appeal, the judge rejected Mr Woodhouse's submission that information held by Council members should be considered held by the Council itself. The Tribunal identified an improper conflation between an individual's activities as a resident compared with activities undertaken in the role or capacity of a councillor conducting the business of the Council. A councillor merely possessing commentary about the Council in a facebook group, of which the councillor is a member is not caught by FOIA and should be contrasted with officially conducting Council business. These distinctions were deemed findings of fact and there was no identified error of law.
Grounds of appeal and the parties’ submissions
Mr Woodhouse submits that section 3(2)(b) of FOIA makes it clear that information counts as "held" even when it's kept by someone else on the public authority’s behalf. He relies on the Commissioner's guidance that the Council cannot avoid the FOI requirements by having others hold information for it. He reiterated that there was evidence, which was publicly available, which recorded that the "letter to villagers" was generated by the Council and its content concerned council business.
The Commissioner submitted that while the Mail Online article might indicate that the Council authored the letter, this would not necessarily establish whether the Council held the information. That the Council had confirmed, “that it had not produced the letter, nor received it, and, crucially, it did not hold it in any event.” The Commissioner observed that only the Council as a public authority is subject to FOIA, not individual Councillors even if they possessed the letter. The Commission in submissions said this:
The potential relevance of the Mail Online article was whether the letter had been written by PPC as a public authority. This would not necessarily however answer whether the information was held by (or on behalf of) PPC (para.25).
The Commissioner could have only been ‘sure’ the Council did in fact hold the letter if the required named journalist confirmed they had seen the letter or that it had be written by the Council. The Tribunal had sufficient information to determine that on the balance of probabilities the letter was not held by the Council.
The Council confirmed in short submissions that it supported the Commissioner's submission and stated that it did not produce or distribute the letter referenced by Mr Woodhouse. The Council characterised this appeal as a continuation of a "vexatious campaign of harassment" against the Council and its members that has allegedly been ongoing for more than ten years.
Analysis
As Wilson J (as he then was) said in Mibanga v Secretary of State for the Home Department [2005] EWCA Civ 367 at para. 24:
It seems to me to be axiomatic that a fact-finder must not reach his or her conclusion before surveying all the evidence relevant thereto. Just as, if I may take a banal if alliterative example, one cannot make a cake with only one ingredient, so also frequently one cannot make a case, in the sense of establishing its truth, otherwise than by combination of a number of pieces of evidence.
The question of whether the Council 'held' the PIR letter under sections 1(1) and 3(2) of FOIA is fundamentally factual. No technical or unnecessary legal restraints should limit what constitutes a public authority holding information. This required the Tribunal to examine several factors. First, whether the PIR letter had an appropriate connection to the Council's functions as a public authority. Second, the content of the PIR letter itself. Third, the circumstances of its creation. Finally, how it was held.
The Tribunal addressed the following material evidence cursorily or not at all. This evidence was plainly relevant to the considerations identified above and merited proper attention.
The Tribunal considered the Council's statements that it did not hold or produce the PIR letter. However, this represents only one piece of the evidential puzzle.
No evidence was presented about the extent of searches conducted by the Council in respect of the PIR letter. This absence of information about what searches were conducted represents a gap in the evidence assessment.
Unlike the Commissioner, the Tribunal had press extracts and Mr. Woodhouse's submissions that were material to the considerations outlined earlier (para.38). This included evidence confirming the PIR letter's existence. Media articles mentioned the letter, and the Council confirmed to the Commissioner, that the letter had been circulated in the 'PottoPatter' Facebook group. Additionally, a national news outlet identified the Council as the author of the PIR letter and that it had circulated this letter to the residents, yet the Tribunal's decision does not engage with this evidence connecting the Council to the letter.
Further evidence showed the PIR letter directly concerned Council business, specifically its purpose was to secure attendance at a Council meeting to discuss financial fallout from the PIR. The Tribunal does not consider this connection to Council business in its decision.
Multiple press articles illustrate that the letter contained information that would have been held by the Council, (i.e. one person made 366 complaints to the Council and the costs arising from the PIR). The complaints information was processed by the Council and therefore connected to the Council. The Tribunal failed to exercise its inquisitorial function to understand how information about Mr. Woodhouse's 366 complaints reached the public domain, in circumstances where it may constitute personal data processed by the Council and thus protected under the Data Protection Act 1998.
The Tribunal failure to engage with this material evidence constitutes a material error of law, as articulated in the Mibanga case. A fact-finder must survey all relevant evidence before reaching a conclusion, the Tribunal did not adequately consider multiple pieces of material evidence.
Moreover, the Tribunal has an inquisitorial function and broad powers under the Tribunal Procedure Rules. Despite the Council being a party to the proceedings, the Tribunal did not direct the Council to respond to the evidence in the media articles identifying it as the letter's source. Nor did it direct Mr. Woodhouse to provide the complete media articles.
The Tribunal also neglected to determine if the PIR's financial impact on the Council and parishioners was public knowledge before the press articles mentioned it. It did not explore whether Council members spoke about the letter, or made comments mirroring what was in the letter, to the press. Given the evidence available, this represents a material failure by the Tribunal to exercise its inquisitorial functions. The Tribunal had both the authority and responsibility to pursue these lines of inquiry but did not do so, undermining its factual findings.
Finally, I make this observation, the Council, as a party to these proceedings, provided a reply adopting the Commissioner’s submissions and maintaining that it had not produced or distributed the letter. However, the Council was silent on the media articles, and did not engage with the Mail Online article which attributed the letter and its contents to the Council. Lord Leggatt’s observations in Royal Mail Group Ltd v Efobi [2012] UKSC 33 at [41], may merit the Tribunal’s consideration upon this appeal’s remittal:
The question whether an adverse inference may be drawn from the absence of a witness is sometimes treated as a matter governed by legal criteria, for which the decision of the Court of Appeal in Wisniewski v Central Manchester Health Authority [1998] PIQR P324 is often cited as authority. Without intending to disparage the sensible statements made in that case, I think there is a risk of making overly legal and technical what really is or ought to be just a matter of ordinary rationality. So far as possible, tribunals should be free to draw, or to decline to draw, inferences from the facts of the case before them using their common sense without the need to consult law books when doing so. Whether any positive significance should be attached to the fact that a person has not given evidence depends entirely on the context and particular circumstances. Relevant considerations will naturally include such matters as whether the witness was available to give evidence, what relevant evidence it is reasonable to expect that the witness would have been able to give, what other relevant evidence there was bearing on the point(s) on which the witness could potentially have given relevant evidence, and the significance of those points in the context of the case as a whole. All these matters are inter-related and how these and any other relevant considerations should be assessed cannot be encapsulated in a set of legal rules
Conclusion
It follows that this appeal is allowed.
Michelle Brewer
Judge of the Upper Tribunal
Authorised by the Judge for issue on 13 May 2025
Authorised for re-issue on 3 June 2025, correction of minor error in the headnote of decision (rule 42 of the UTPR applied)