Gail Judson v Information Commissioner & Anor

The parties agreed that this appeal could be determined on the papers without a hearing. The Tribunal was satisfied that it was fair and just to determine this appeal in this way. 

This appeal is against a decision of the Information Commissioner (the “Commissioner”) dated 17 November 2022 Ref. IC-153819-W0G3, (the “Decision Notice). The appeal relates to the application of the Environmental Information Regulations (EIR) 2004 (“EIR”). It concerns a site known as King George V fields. The appellant asserts that the fields are protected by way of a deed of dedication such that they are to be used for public recreation in perpetuity. The appellant asserts that an agreement (which the appellant asserts is a lease) and planning permission granted by the Second Respondent (the Council) enabled a local football club to construct a 3m high fence which would be locked to exclude the public.

This appeal relates to two information requests made by the appellant.

On 19 November 2021 the appellant wrote to the Second Respondent and made a request (the First Request) for the following information:

The Second Respondent responded citing s.1(1) of the Freedom of Information Act 2000 (FOIA) and stating that they did not hold the information. In addition, the Council set out:

On 23 December 2021 the appellant sought an internal review. The appellant asserted that a Fields in Trust solicitor had informed her that “the deed remained valid under contract law” and that “Fields in Trust’s consent was sought for the proposal”. The implication being that there was external information which contradicted the Second Respondent’s position. The appellant stated that the information requested had not been received and also provided photographs of signage at the playing fields which the appellant asserted contradicted the information provided by the Respondent.

On internal review the council maintained its position. In addition, the council indicated that a contradictory search and statement by a third party did not affect the council’s position and the signage to which the appellant referred had not been erected by the Second Respondent but by a friend of King George V playing fields group.

On 2 November 2022 the appellant made a complaint to the First Respondent in relation to the First Request.

On 22 January 2022 the appellant wrote to the Second Respondent and requested the following information (“the Second Request”):

The appellant requested an internal review on 28 April 2022. On internal review the appellant confirmed that the following information was outstanding:

The Second Respondent responded to the internal review as follows:

On 22 March 2022 the appellant made a separate complaint to the First Respondent in relation to the Second Request.

The Respondent decided both complaints in the Decision Notice. Prior to the Decision Notice the First Respondent wrote to the Appellant and confirmed that the scope of the investigation into the complaint would be limited to whether the Second Respondent was correct to state that it did not hold the following information:

In the Decision Notice the First Respondent decided that:

The Appellant appealed. The appeal was received on 13 December 2022. The Appellant asserts that:

The First Respondent responded and maintained that the Decision Notice was correct. The First Respondent indicates that he believes that there is a single ground of appeal but nonetheless addresses other assertions made by the appellant. The First Respondent’s response can be summarised as follows:

The Second Respondent has provided a response to the grounds of appeal. The contents of that response can be summarised as follows:

The appellant responded as follows:

The relevant provisions of the EIR are as follows:

Duty to make available environmental information on request.

In determining whether or not information is held, the standard of proof is the balance of probabilities. It is rarely possible to be certain that information relevant to a FOIA request is not held somewhere in a large public authority’s records. The Tribunal should look at all of the circumstances of the case, including evidence about the public authority’s record-keeping systems and the searches that have been conducted for the information, in order to determine whether on the balance of probabilities further information is held by the public authority.

A relevant and helpful decision is that of the First-Tier Tribunal in Bromley v the Information Commissioner and the Environment Agency (EA/2006/0072). In discussing the application of the balance of probabilities test, the Tribunal stated that, “We think that its application requires us to consider a number of factors including the quality of the public authority’s initial analysis of the request, the scope of the search that it decided to make on the basis of that analysis and the rigour and efficiency with which the search was then conducted. Other matters may affect our assessment at each stage, including for example, the discovery of materials elsewhere whose existence or content point to the existence of further information within the public authority which had not been brought to light. Our task is to decide on the basis of our review of all of these factors, whether the public authority is likely to be holding relevant information beyond that which has already been disclosed.” 

In Oates v Information Commissioner and Architects Registration Board EA/2011/0138 at [11], the First-tier Tribunal stated “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. Were this to be otherwise the IC, with its limited resources and its national remit, would be required to carry out a full scale investigation, possibly onsite, in every case in which a public authority is simply not believed by a requester.”

In Councillor Jeremy Clyne IC and London Borough of Lambeth EA/2011/0190 [23] the Tribunal accepted that the Commissioner was entitled to accept at face value the response of a public authority, where there was no evidence of an attempt to mislead the Commissioner, or of a motive to withhold information actually in its possession.

The issues for determination in this appeal are:

There is no dispute between the parties that the EIR is the correct regime in which to assess the information request.

By way of evidence and submissions we had an agreed bundle of open documents and written submissions all of which we have taken into account in making our decision.

In accordance with section 58 of FOIA, our role is to consider whether the Commissioner’s Decision Notice was in accordance with the law. As set out in section 58(2), we may review any finding of fact on which the notice in question was based. This means that we can review all of the evidence provided to us and make our own decision. We deal in turn with the issues.

A significant proportion of the appellant submissions relate to the correct legal status of the land to which the request relates and the lawfulness of the Second Respondent’s decision making in light of that claimed status. Whilst these submissions are relevant to context they are not issues that the Tribunal can determine. The Tribunal’s remit is to establish whether the requested information is held and if so whether it should be disclosed.

In addition, to the two requests considered above, there has been ongoing dialogue between the parties as to the disclosure of the Second Respondent’s legal advice in relation to the dedication of the land to which the request relates. The Second Respondent has claimed that the legal advice is exempt from disclosure due to legal privilege. However, this element of the dispute between the parties does not appear in the Decision Notice. The First Respondent clearly defined the scope of the investigation and Decision Notice as limited to items 1-3 above. While the legal privilege exemption is referred to within the Second Respondent’s response and referred to in correspondence between the parties it was not identified as an issue before the First Respondent. In addition, the legal advice is not specifically requested in the grounds of appeal . There is no closed bundle setting out the legal advice for the Tribunal to consider and the arguments in relation to public interest in disclosure, notwithstanding the legal privilege exemption, have not been fully developed by the parties. For example, the appellant does not fully engage with public interest arguments but rather states that if the legal advice supports the Council’s position why would it not be disclosed. In the circumstances the Tribunal believes that it is inappropriate for it to make a decision in relation to the disclosure of the legal advice. If there is still a dispute in relation to this issue it is within the appellant’s gift to make a request and if necessary a further complaint to the Information Commissioner and appeal to the Tribunal in relation to this issue .

Accordingly, the scope of the Tribunal’s decision is limited to the whether the information described in items 1 to 3 above is held by the Second Respondent and if so whether it should be disclosed. In addition, we agree that the request for any conditions relating to the proposal for a licence agreement between the Second Respondent and Guisborough Town Football Club was not a feature of either request or internal review. Accordingly, we find that this element is beyond the scope of the Tribunal’s decision. However, should the Appellant require this information it is within her gift to make a subsequent request of the Second Respondent.

We have considered the evidence produced by the appellant and contained within the bundle.

The appellant has produced a Charity Commission Guidance note. The appellant refers to page 5 of that note which indicates that where a local authority has entered into contractual covenants with the foundation or its trustees, Fields in Trust, those legal obligations remain in force. They are not affected by the charitable status of the land in question. We find this does not advance the appellant’s case. The issue before the tribunal is whether the information is held. A statement in guidance from a third party that contracts or covenants are not affected by the charitable status of the land has no evidential weight in relation to assessing whether the Second Respondent holds the information requested.

The appellant relies upon the King George V Fields foundation final report at page 32 of the PDF bundle. The appellant has drawn the Tribunal’s attention to sections of that report which provide that the King George V scheme was open to any local authority or other body to register a field as a King George V field. The predecessor of Fields in Trust was involved in the administration of the scheme. Certain conditions that had to be observed including security of tenure of the land by the local body and its dedication for permanent preservation as a King George V field were intrinsic to the conception of a national memorial and funds could not be properly spent on schemes which might disappear after a few years. Again, we find that the information is general in nature, it applies to King George V fields generally, it provides no insight into whether specific documents are held by the Second Respondent and we give this evidence no weight in this regard.

The appellant has produced photographs which they assert are “heraldic panels” at the entrance of the relevant fields which the Appellant claims would have been supplied by the foundation, a predecessor of Fields in Trust. This is corroborated by the extracts of the internet pages considered below. Again, we find that the information is general in nature, it applies to King George V fields generally, it provides no insight into whether specific documents are held by the Second Respondent and we give this evidence no weight in this regard.

The appellant has produced a photograph of a plaque/sign (with a transcript of the text) which the Appellant asserts is displayed at the land . The plaque indicates that the field was dedicated as King George V Field in 1954 by a deed of dedication. However, it is unclear who has written the text contained in the plaque. The Second Respondent asserts that the plaque was erected by a local community group. It is unclear from where the information has been derived. Accordingly, we place little evidential weight upon this photograph in terms of its corroborative value that a deed of dedication exists. The plaque provides no insight into whether specific documents are held by the Second Respondent and we give this evidence no weight in this regard.

The appellant has produced what appears to be a screenshot of an internet page relating to King George V playing fields [page 40 PDF bundle]. The article highlights that all King George V fields are protected forever with Fields in Trust. The protection is a legal agreement between Fields in Trust and the spaces landowner that they will retain it for use as public use in perpetuity. The article indicates that heraldic panels are displayed at the entrance to King George V fields. The article states that consent to Fields in Trust is required for changes to include the grant of a lease to a sports club. The article states that whether consent is required is set out within governing instruments which may be included in conveyances transfer documents deeds and land registry office copy entries. Applications will need to be made by the landowner and that permanent fencing which requires key would require consent. Again, the evidence is general in nature. The article goes no further than stating that the arrangements may be set out in a deed. The standard in this case is the balance of probabilities and accordingly the possibility that arrangements are set out in a deed in insufficient. In any event, the documents provide no insight as to whether specific documents are held by the Second Respondent.

An email dated 5 December 2019 from Fields in Trust [page 58 PDF bundle] states “I have also met previously this year with the football club and council representatives to discuss their obligations to Fields in Trusts and all parties”. Firstly, there is no indication as to who the relevant Council is whether this is the Second Respondent or a parish council as referred to in other emails of Fields in Trust. Secondly whilst there may be discussions in relation with Fields in Trust the issue for determination by this Tribunal is whether the relevant information is held. The relevant email gives no insights as to whether the specific documents are held by the Second Respondent. We give the email no evidential weight in relation to whether the documentation is held by the Second Respondent.

The appellant relies upon an email from Fields in Trust dated 14 April 2021. The email states that the proposal was approved on a number of conditions being met by the parish council. The appellant stated that the application must have been submitted by the council as landowner and accordingly reference in the email to a “council” is a reference to the Second Respondent. However, the email does not say that. The email refers to a parish council. The email also states that all decisions were made in accordance with a deed of trust. The email does not refer to the second respondent engaging with Fields in Trust. It refers to a parish council. In any event we find that an email from a third party organisation about consultation has no evidential value in relation to whether the disputed information is held by the Second Respondent. Similarly, the email from Fields in Trust dated 4 April and August 2022 which refers to the Second’s Respondent’s position as to the validity of the deed have no evidential weight as to whether the deed is held by the Second Respondent or not.

The appellant has produced an extract from Bill Clarke’s social media posts which states “this field is protected forever by the fields in trust who must be consulted and also friends of King George V’. However, again there is no evidential basis upon which this assertion is made. In addition, this post has no evidential weight in relation to assessing whether the information is or is not held.

Within the bundle [page 188 PDF stitched bundle] there is a conveyance dated 11 August 1950. The conveyance includes a memorandum. The memorandum states:

Indeed, the appellant has produced a document which starts “it is declared by the urban district council of Gainsborough”. The document identifies a field within Gainsborough which will be preserved in perpetuity as a memorial to King George V under the provisions of the King George V fields foundation. The document is sealed with the seal of Urban District Gainsborough. The document is dated 12 February 1954. On the balance of probabilities, we find that this is the document the memorandum of which is noted on the conveyance. We note that this document has been supplied to the appellant by Fields in Trust. Accordingly, we find that there is no indication within the documents produced that the process that was undertaken in 1954 with the intention of dedicating the fields was carried out otherwise than pursuant to the memorandum endorsed on the conveyance and the declaration document produced. There is no significant evidence other, than one email from a third party, that deed of dedication was ever entered into. Accordingly, we find the appellant has failed to demonstrate that a deed of dedication exists. Failure to demonstrate such documentation exists supports the Second Respondent’s assertion that this document is not held. It also supports the Second Respondent’s assertion that there has been a misunderstanding that there is a separate deed of dedication.

We find that the responses from the Second Respondent set out detailed background information to assist the Appellant. For example, in relation to the first request the Second Respondent set out in full detail how the land was acquired, the declaration that the land would be dedicated as a memorial field in 1954, why that declaration was considered to be unlawful and the subsequent reappropriation pursuant to section 122 of the Local Government Act 1972. We find that the Second Respondent has acted in a transparent manner and demonstrated a desire to assist the appellant in fully understanding why they consider the land not to be dedicated.

We find that where the Second Respondent has subsequently discovered that it has responded to requests in error it has promptly sought to rectify its responses. For example, in relation to the internal review in relation to the second request the Second Respondent apologised that there was relevant information in that regard to the declaration noted in a memorandum on the conveyance which had already been disclosed. The Second Respondent also confirmed it had made an error and did not hold communications stating it was declining to re-dedicate the land. We find that the Second Respondent’s approach in correcting errors promptly weighs in favour of openness and transparency, it is not indicative of attempts to mislead.

There are other similar examples of open transparent and co-operative behaviour within the correspondence passing between the appellant and the second respondent. On the balance of probabilities, we find that the Second Respondent has acted in an open and transparent manner and has used all reasonable endeavours to assist the appellant in understanding the circumstances and legal status of the relevant land to which the requests relate.

The appellant has indicated that there is evidence that certain Councillors have links to the football club who was granted a licence. The suggestion being that there is some motive for withholding the information. The implication being bias or impropriety. We find that evidence of mere connections between local councillors and the local football club is insufficient to demonstrate that there was a motive for withholding the information or that the Second Respondent has in some way acted improperly.

During the First Respondent’s investigation he asked the Second Respondent a number of questions. One of those questions was what searches were conducted in order to locate the information and whether these included searches of archived materials. The Second Respondent indicated that it was able to identify that it held records relating to land in question dating back to the 1970s. The records were both paper and electronic records. The Second Respondent also confirmed that it held files in relation to the tenants of the land in question such as the football club and leisure centre. The Second Respondent confirmed that extensive searches of all relevant records were conducted but none of the files contain the information requested. The second respondent confirmed searches included archived information.

The Second Respondent also asked why it held some documents from 1954 but not all. The Second Respondent indicated that it was only formed in 1996 following the abolition of Cleveland County Council. The Second Respondent indicated that it retained some documents which related to predecessor authorities especially where they were of historical or legal importance such as the conveyances.

We find that there is no evidence of any reluctance by the Second Respondent to conduct searches. Indeed, the evidence indicates quite the opposite and that the Second Respondent took a transparent and open approach seeking to assist the Appellant. We find that the searches conducted were reasonable within the context of the requests. The Second Respondent took an appropriate approach in identifying where relevant information was likely to be held then conducting an extensive search of those records. The Second Respondent has provided reasonable explanations why some records may be incomplete, which is that there has been restructures following which the Second Respondent inherited files of other councils. The explanation is plausible. There is no significant evidence to suggest a motive for withholding information. Accordingly, we find that the council has conducted appropriate searches for the information in question. In the in absence of any significant countervailing evidence that would suggest that the information exists and/or is held we find that the Second Respondent’s appropriate searches have not revealed the existence of the information.

We have considered the appellant’s evidence but found that there is no significant corroborative evidence to support the appellant’s assertion that the council holds the information in question. Indeed, in in relation to item 1 we have found there is no significant evidence to indicate that a deed of dedication exists. We have found that the council has acted in an open and transparent way and has sought to assist the appellant in understanding the circumstances surrounding the land and the former dedication. We have found that the appellant has failed to demonstrate that there is a motive for withholding the information. We found that the Second Respondent has carried out appropriate searches which confirm that the information is not held. We remind ourselves that the relevant standard is the balance of probabilities. For all of the reasons set out within this paragraph we find on the balance of probabilities that the council does not hold the information.

The EIR require that a public interest assessment is made in relation to disclosure in all circumstances. However, where the information is not held there can be no public interest in its disclosure.

We dismiss the appeal and uphold the Decision Notice.