Michael Bell v The Information Commissioner & Anor

The environmental information within the properly agreed scope of the Appellant’s request, other than that supplied to him pursuant to the request, was not held by the Second Respondent at the time of the request.

Accordingly, the appeal is dismissed.

The Second Respondent (‘the Council’) is the parish council for a group of communities in a rural part of Hampshire not far from Basingstoke, one of which is the village (or perhaps hamlet) of East Woodhay.

On 3 September 2021, the Appellant, Mr Michael Bell, a resident of East Woodhay, made a request to the Council for information in the following terms:

For context, Mr Bell had submitted an earlier information request to the Council, on 24 August 2018. That request resulted in a decision notice in which it was found that certain relevant information had not been disclosed.

The Council responded on 6 October 2021. As to parts a) ii, iv, v, vi and vii, it stated that no information was held. For part a) i it stated that it did hold a lease agreement, but that it had been shared in confidence and was exempt from disclosure. As for part a) iii, the council advised that a public document outlining its stance on the sports facilities was available on its website, but the information sought was provided in response to his previous request made in 2018. Turning to part b) the Council stated that all information on the Neighbourhood Plan minutes and related emails were provided in response to the 2018 request and, as previously informed, all updates via the Neighbourhood Plan Steering Group (hereafter, ‘NPSG’) were published in the EWPC monthly minutes which could be viewed on the Council’s website. For part c) of the request, the Council provided emails it held.

Mr Bell challenged the Council’s answer but on 22 October 2021, following an internal review, it confirmed it.

Mr Bell then complained to the Commissioner about the way in which the Council had dealt with his requests. An investigation followed.

In a letter of 24 March 2022 to Mr Bell, the Commissioner stated:

By a Decision Notice dated 9 May 2022 (‘the DN’), the Commissioner determined, on a balance of probabilities, that (apart from that already communicated to Mr Bell) the Council did not hold any of the information requested. The material parts of the DN were the following:

The Commissioner has asked the council to explain the searches it has carried out to determine that no further information is held that falls within the scope of the request.

The council has told the Commissioner that the clerk has carried out numerous searches on email and Dropbox, as this holds all council documents and since the findings of the previous decision notice FER07952241, the process of saving documents has been improved.

The clerk has carried out the searches because the clerk holds all copies of documents and correspondence. The Neighbourhood Plan Steering Group was also contacted and it confirmed no other information was held by them.

The council has confirmed to the Commissioner that no information has been deleted or destroyed relevant to this request.

The council, in its initial response to this request, said some information was previously provided in response to the complainant’s 2018 request which it provided following the decision notice FER0795224.

However, the complainant has stated to the Commissioner that with regards to this, in particular, he is interested in being provided with Steering Group minutes created and held that post dates his 24 August 2018 request.

The Commissioner has asked the council to confirm therefore that it has also focused its searches for information between 25 August 2018 up to the date of this request of 3 September 2021.

The council has confirmed that and told the Commissioner there were no Neighbourhood Plan Steering Group minutes created between the complainant’s 2018 request and 3 September 2021.

The council has explained that in its January 2019 meeting it was anticipated that the steering group would “publish minutes of meetings held on the Parish website and Facebook”.

The council added that the steering group was never formalised as anticipated at that January 2019 meeting and so the minutes of meetings were never taken by the steering group, primarily because they were not required to be taken. So instead summaries of the reports were recorded in the minutes of the council’s meetings which are available on the council’s website, as advised in its response to this request.

The council maintains that there are no further minutes and that no further information is held falling within the scope of the request. …

The Commissioner has reviewed the above, and having reviewed the previous decision notice FER0795224, can understand why the complainant would be of the view that he has not been provided with all the information requested, as that investigation brought to light further information held.

However, the council maintains that, in this case, it holds no further information and appears, to the Commissioner, to have carried out reasonable checks in the most relevant places to determine this.

On review of the explanations given, the Commissioner has determined that, on the balance of probabilities, no further information is held falling within the scope of the request.

Pursuant to a direction of the Tribunal, the Council was in due course joined in the appeal. By a response dated 10 January 2023 it resisted the appeal, adopting the grounds relied on by the Commissioner.

The appeal came before us on 2 June 2023 for consideration on the papers. The parties had expressed themselves content with that procedure and we were satisfied that it was just and proper to decide the matter without a hearing.

We were provided with a bundle of some 575 pages.

In the event, the Tribunal did not reach a concluded view on 2 June and adjourned its deliberations until the next mutually convenient date, 24 August, inviting written submissions from the parties in the meantime on one particular point, namely whether, despite appearances, the Commissioner did in fact address the full breadth of Mr Bell’s request.

Mr Bell challenged the Commissioner’s finding that the requested information was not held on two quite separate bases. First, he mounted a narrow attack upon the determination that relevant information was not held. Second, he contended that the Commissioner had impermissibly confined his inquiry to the subject of the NPSG minutes, when the request had been framed in much wider terms.

By a response dated 28 November 2022 the Commissioner resisted the appeal, essentially on the grounds set out in the Decision Notice. He readily agreed that he had understood the request to be concerned with the minutes. He pointed out that he had been very clear with Mr Bell about the scope of the investigation which seemed to be required and the latter had raised no objection. In those circumstances, said the Commissioner, he could not be faulted for proceeding as he did. And his conclusion that the minutes were not held was unimpeachable.

It is common ground that the request relates to ‘environmental information’ and the applicable legislation is the Environmental Information Regulations 2004 (hereafter, ‘EIR’).

By EIR, reg 5(1) a public authority that holds environmental information is obliged to make it available on request.

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

Whether particular information is ‘held’ by a public authority is essentially a question of fact (University of Newcastle upon Tyne v ICO and BUAV [2011] UKUT 185 AAC, [41]). Any issue as to whether material requested under freedom of information legislation is ‘held’ is to be decided on a balance of probabilities (Bromley v Information Commissioner and Environment Agency EA/2006/0072).

By EIR, reg 18(1), the enforcement and appeals provisions of the Freedom of Information Act 2000 (‘FOIA’) are applied to environmental information disputes. The appeal is brought pursuant to FOIA, s57. The Tribunal’s powers in determining the appeal are delineated in s58 as follows:

It is convenient to consider first Mr Bell’s broad argument that the Commissioner wrongfully treated the request as being confined to the NPSG minutes. Here there is no real dispute about the approach taken by the Commissioner. In his representations sent following the Tribunal’s deliberations on 2 June, the Commissioner maintained his prior position that he had justifiably started by focussing on what he understood to be the nub of the request and, absent any resistance from Mr Bell, had seen no warrant for widening his inquiry thereafter. We agree that that is what happened, although perhaps certain passages of the decision notice can be read as evidencing a more ample investigation. Mr Bell also agrees, but says that the Commissioner’s focus was impermissible.

Was the Commissioner’s management of the case in accordance with the law, or did it involve any wrongful exercise of discretion? We think not. Like many others, the Information Commissioner’s Office is a hard-pressed public body with limited resources at its disposal, which it must use efficiently and in a proportionate way. One standard technique employed by the Commissioner to this end is to seek the requester’s agreement at an early stage as to the proper scope of the request. At least, this should ensure clarity and avoid misunderstandings. In some instances, it will result in a consensual narrowing of the inquiry, avoiding needless delay and expense. There is nothing wrong with this. On the contrary, it is to be encouraged. (Footnote: ²) The Commissioner reasonably, and certainly permissibly, formed the initial view that the request was directed to the minutes, and, by the letter of 24 March 2022, he explained his intention to concentrate on the minutes ‘only’ and invited Mr Bell to agree or disagree. No pressure was applied. A reasonable period for response was allowed. There was no material response, within the period or after it had elapsed. Mr Bell was (and is) a conspicuously capable and articulate individual. In our view, the Commissioner proceeded, and was entitled to proceed, on the footing that the scope of the statutory inquiry had been limited by agreement to the matter of the minutes. That involved no error of law or wrongful exercise of discretion.

If, as we hold, the Commissioner was entitled to limit his inquiry as he did, was he correct to find as a fact that no minutes within the (agreed) scope of the request were held? In our judgment, he was. There was ample material on which the finding was based (see in particular the decision notice, paras 20-33). We detect no error of law or wrongful exercise of discretion. To the contrary, the Tribunal considers that the Commissioner reached the right view, for the right reasons. The Council’s account of why there were no NPSG minutes between August 2018 and September 2021 was, we think, unremarkable. Much less plausible to our minds are the two alternative theories on which Mr Bell’s appeal necessarily depends: that minutes were generated in that period but somehow innocently (if perhaps carelessly) overlooked during the Council’s searches, or deliberately and dishonestly suppressed. The Council supplied convincing evidence of the detailed searches which were conducted. It is not, in our view credible that the minutes, had they existed, would have escaped detection. Nor do we think it credible that anyone on behalf of the Council would have stooped to serious wrongdoing in order to frustrate Mr Bell’s request. We will leave the obvious risks of doing so speak for themselves.

For all the reasons given, the appeal is dismissed.