John Rubino & Anor v The Information Commissioner & Anor

The Hearing Bundle contains an e-mail from Govresources Ltd to the second respondent dated 8 February 2021 at page D105. The appellants submit that it is unclear why this was not originally released to the appellants in response to the Freedom of Information/Environmental Information request, given that it is within the scope of such request.

That email has been redacted for reasons which are unclear to the appellants. The appellants have been able to identify this difference in redaction due to having previously had sight of this specific piece of correspondence in a lesser redacted form. However, given the reason for this redaction is unclear, the appellants are concerned that there may be redactions of other documents which ought properly not to be redacted, but which the appellants would not be able to identify in the absence of the original material.

The appellants do not accept a statement of fact included in an email in the bundle at pages D86-B87. The appellants considers that the statement is a deliberate attempt to smear the character of the appellants so as to support any future defence of vexatiousness/manifest unreasonableness in respect of a second Freedom of Information/Environmental Information request.

It is submitted that the request was made with the intention of obtaining the paperwork associated with the SEA process undertaken by the second respondent because of the failure of the second respondent to carry out its neighbourhood plan process in an open and transparent manner. The appellants’ site was excluded from the process with no justified or reasonable explanation for such. It then became apparent that the second respondent had failed to carry out its duty to prepare an SEA to inform the preparation of the neighbourhood plan and this was done retrospectively and not in full. The appellants therefore sought clarity as to the instructions of the second respondent provided to its appointed consultants, by way of the request, to understand the way in which its site was being treated by the second respondent.

The second respondent has no objection to the removal of the redactions to the document at p D101-105 of the bundle.

The allegations that the second respondent is effectively abusing the tribunal process are denied. The appellants are raising speculative concerns about how the second respondent may decide to defend itself in future legal proceedings. This can be of no concern to this tribunal, which is only concerned with determining the matters subject of the appeal.

It is noted that the majority of the submissions made by the appellants within the documentation submitted as part of the appeal, the Response of the appellants to the second respondent of 16 August 2023 and its Further Submissions of 6 October 2023, remain uncontested by the second respondent. Most notably, the second respondent has failed to engage entirely with the appellants’ case led in respect of the second respondent not having exhausted all avenues in seeking to obtain the relevant information.

The appellants note that the correspondence at D105 has been fully unredacted as opposed to partially unredacted, which includes a paragraph the appellants has not previously had sight of. This reiterates its view, as set out within its submissions made to the tribunal but supported by even this small release of information, that:

The appellants summarise the differences between the two versions of the SEA report and noted that he e-mail from Govresources Ltd to AECOM (both consultants appointed by the second respondent) dated 23 July 2021 (see page D233 of the Hearing Bundle), it states:

“We would like the report to show what actually has the potential to be included in the NP as a Non-designated Heritage Asset. I am just checking back with the team because I think some of the items, although we have found more information on them, do not exist now.”

It is submitted that this implies that there would have been further exchanges as to the extent of features to be included, but no such material has been released to the appellants.

The appellants provided a copy of the Terms of Reference of the Steering Group. The appellants noted that the reference to ‘Paul’ in the now unredacted correspondence at page D104 of the Hearing Bundle is believed to be a reference to Paul Wolstencroft, who was a member of the Steering Group and therefore would hold information on behalf of the Parish Council within the scope of the original FOI/EIR request. Further, the appellants noted that the reference to ‘Bob’ in the correspondence at the same page of the Hearing Bundle is believed to be a reference to Bob Frost, who is the Chairman of the Steering Group and therefore will likely also hold information on behalf of the Parish Council within the scope of the original FOI/EIR request.

The appellants submit that they have demonstrated in that the Parish Council has not sought information held on its behalf by various appointed consultants which sits within the scope of the original FOI/EIR request. Whilst reference has been made to some of those specific appointed consultants (e.g. Govresources Ltd, Locality and AECOM), the appellants consider that the Steering Group also falls within this category.

The question of whether information was held at the time of the request is determined on the balance of probabilities.

The tribunal’s remit is governed by s.58 FOIA. This requires the tribunal to consider whether the decision made by the Commissioner is in accordance with the law or, where the Commissioner’s decision involved exercising discretion, whether he should have exercised it differently. The tribunal may receive evidence that was not before the Commissioner and may make different findings of fact from the Commissioner.

The issue we have to determine is whether or not the Council held further information within scope of the request on the balance of probabilities.

We have read an open bundle of documents. We also took account of the additional submissions set out above and the following additional documents:

Some of the submissions of both the appellants and the second respondents dealt with matters that are outside the scope of this appeal. We have not dealt with those matters in this decision.

Although not raised in the grounds of appeal, the appellants have subsequently raised the question of the appropriateness of redactions made to various emails in their submissions dated 6 October 2023. All the redactions to which the appellants objected have now been unredacted. Given that the matter was not raised in the grounds of appeal and is no longer in issue we do not deal with the issue of redactions.

Having reviewed the documents in the bundle and on the basis of the assurances from the Council we accept that p D105 does not contain an incomplete email.

A public authority should conduct an appropriate and reasonable search for information. This should include, as a minimum, searching in the places where it is reasonable to expect that the public authority would find the information, if it existed.

Where work relevant to the subject matter of a request has been carried out on behalf of the public authority by consultants, or by, for example, a steering group it is reasonable to expect that those parties might hold information within the scope of the request on behalf of the public authority.

In this appeal, the Council had initially misunderstood the scope of EIR, and had not appreciated that it extended to information held by another person on behalf of the public authority.

The appellants submit that the Council has not undertaken an adequate search for documents which were transferred by Jacqueline Veater at Govresources Ltd to AECOM and Robert Frost via a Dropbox link in an email dated 14 April 2021. This email reads:

“Bob and I are compiling all the information we can on the Site Assessment Process and I will be able to send you a Dropbox link to all our documents on Monday, if this is acceptable. We have quite a lot put together now but I think it would be easier if the information was complete to the best of our knowledge before I send the link.

If you want to start and would benefit from the examples I mentioned in our telephone call and the documents put together for the Reg 14 consultation by the landowners agent for the site we have chosen to allocate, these are in the attached link:

https://www.dropbox.com/sh/dxymd46ur2aemuz/AAAfXIvqQOhvjDRKdgR6XWyCa? dl=0”

We accept that the Dropbox folder has been deleted and the link is no longer available. However, we also find that it is likely that AECOM will have downloaded and saved the documents from the Dropbox folder. It also appears likely from the email that further documents were sent via Dropbox the Monday after (19 April 2021) and those documents, if sent, are likely to have been downloaded and saved by AECOM. This is because they had been sent those documents for the purposes of drafting the SEA, and it a Dropbox file is only available for a limited period.

In support of our finding that the documents are likely to have been downloaded and saved we note the email from AECOM to the appellants dated 15 May 2023 which states:

“AECOM retain relevant information. However, I suggest you direct your queries directly to the parish council, and if they request, we can provide them with the relevant information we have retained if they do not hold it already.”

In our view, given that the text of the email dated 14 April 2021 such information, if held, would at least potentially fall within the scope of the request. The email refers to ‘compiling all the information we can on the Site Assessment Process’ which would be sent the next Monday. The email states:

“If you want to start and would benefit from the example I mentioned in our telephone call and the documents put together for the Reg 14 consultation by the landowners agent for the stie we have chosen to allocate.”

This information appears to have been sent to AECOM so it can start reading the information relevant to the SEA process, and therefore appears that those documents would fall within the scope of the request, such that it would be reasonable to include them in a search. Whether or not they are actually in scope can be determined if and when those documents have been located.

On those grounds we conclude that a reasonable search would have included asking AECOM to carry out a reasonable search for:

There is no direct evidence before us that the Council have asked AECOM for this information. The Commissioner records in his response that the Council had made the Commissioner aware that it had contacted AECOM following its earlier email dated 11 April 2023 and explained AECOM had not engaged with the Council regarding the request. We do not have evidence of this in the bundle.

The appellants emailed Locality and AECOM on 4 May 2023 as follows (p A53):

“We have been informed by the ICO that on 11 April 2023, The Hertford Heath Parish Council wrote to you asking for you to provide them with a copy of all communications and correspondence (including any records of such communications such as meeting notes, diary entries, telephone notes, reports, e-mails, notes and memos) between you and Govt Resources Ltd/ Steering Group/Bob Frost/Hertford Heath Parish Council members, in respect of the production of the scoping report and the SEA, and that you have not engaged with the Council regarding the request.

Can you please confirm whether you have received an email request from the Parish Council regarding the above and whether you have responded.”

We note that this email is slightly inaccurate in that the Commissioner does not state that the enquiry was made on 11 April 2023, nor that it was in writing, nor the specific terms of the enquiry. Even so, in our view, Locality’s response that neither AECOM nor Locality ‘have received such a request for information’ does suggest that reasonable enquiries have not been made of AECOM/Locality.

The appellants then email Locality as follows on 10 May 2023:

“Would you kindly ask Aecom to confirm whether the information/instructions which were supplied to them by the Hertford Heath Parish Council, Steering Group/ Gov Resources Ltd either directly, emailed or transferred via Dropbox link have been filed, retained and are still accessible by Aecom, in relation to the production of the Hertford Heath NHP scoping and SEA process.”

Locality’s response is that set out above at paragraph 65 above.

On the basis of the above, we conclude that the Council have not made adequate enquiries of AECOM and have therefore failed to carry out an adequate search for information within the scope of the request held on the Council’s behalf.

Similarly, whilst the evidence shows that Govresources Ltd no longer have access to the Dropbox link or Dropbox folder it is not clear to us if they have been asked by the Council if they have retained and held, at the relevant time, any information on behalf of the Council within the scope of the request.

In our view a reasonable search would have included asking Govresources Ltd to carry out a reasonable search for:

Whilst the first question may already have been asked, it does not appear that the latter two questions have. On the basis of the above, we conclude that the Council have not made adequate enquiries of Govresources Ltd and have therefore failed to carry out an adequate search for information within the scope of the request held on the Council’s behalf.

Finally the appellants have drawn the tribunal’s attention to an email dated 11 February 2021 which states that Paul Wolstencroft, a member of the Steering Group, has been ‘collating all the information’. On that basis the appellants assert that he is likely to hold information. The appellants submit that the Chairman of the Steering Group will likely also hold information on behalf of the Parish Council within the scope of the request.

It is not clear to us whether these individuals have been asked whether they hold information, but we accept that an adequate search would include asking those individuals to carry out a reasonable search for any information within the scope of the request that they hold on behalf of the Council.

We deal with one additional small point. In their submissions dated 6 November 2023 the appellants refer to an email dated 23 July 2021 that suggests that further discussions would have taken place as to the extent of features to be included in the Neighbourhood Plan, which have not been released to the appellants. It appears to the tribunal that that information is likely to have come into existence after the request and would not fall within the scope of the request.

In conclusion we find that the failure to ask AECOM, or other parties who were likely to hold information on behalf of the Council was evidence of an inadequate search.

We conclude that there was evidence of an inadequate search by the public authority which the Commissioner should have considered before deciding not to make further investigation. In the circumstances of this case we have decided that he was not entitled to accept the word of the public authority without further inquiry.

Thus, adopting the same test as the tribunal did in Bromley, the Commissioner fell into error in accepting the assertion of the public authority, on the basis of which he decided on the balance of probabilities that it was more likely than not that the Council did not hold more information within the scope of the request.

We make it clear that we are not deciding that the Council does hold more information within the scope of the request but that in this case there was insufficient evidence to support the conclusion that it was more likely than not that the Council did not hold more information.

For all these reasons we have decided that the Information Commissioner’s Decision Notice was not in accordance with the law and the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised differently. Accordingly this appeal is allowed and the tribunal’s decision above is substituted for that of the Commissioner.

For the reasons set out above, the appeal is allowed.