Liam McCarthy v The Information Commissioner

This appeal relates to a request made to the Council on 7 May 2023 for information contained in emails between Councillors Sizeland, Gourley and Adshead and two of the applicants in the section 82 legal proceedings or one of the applicants’ solicitors. The request is contained in paragraph 4 of the Commissioner’s decision notice and is not set out here because of its length.

Each of the 14 paragraphs in the request follows a similar structure, so for example, paragraph 4 reads:

In the Council’s response on 1 June 2023 the Clerk to the Council stated that ‘I have contacted Councillors Adshead, Gourlay and Sizeland and they have confirmed that they are not holding any information that should be disclosed under the Freedom of Information Act 2000/Environmental Regulations Protection Act 1990.’

The Council upheld its position on internal review, stating that:

In a decision notice dated 22 August 2023, the Commissioner concluded on the balance of probabilities that the Council did not hold any information within the scope of the request.

The Grounds of Appeal are, in essence, that the Commissioner was wrong to conclude that the Council did not hold the requested information. In particular the appellant argues that:

The main points of the Commissioner’s response are:

Section 1(1) FOIA provides:

The scope of a request is determined objectively, in the light of all the surrounding circumstances.

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 section 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 for the tribunal to determine is:

The tribunal read an open bundle.

The conduct of the Commissioner’s investigation is outside the remit of the tribunal. The tribunal is not reviewing the procedure adopted by the Commissioner in reaching his decision. The tribunal conducts a full merits review, standing in the shoes of the Commissioner and, and can take into account evidence that was not before the Commissioner. The tribunal has no power to remit the matter to the Commissioner for further investigation (Information Commissioner v Malnickand ACOBA [2018] UKUT 72 (AAC)).

Information held by councillors in their personal email accounts in their role of councillor may be, but is not necessarily, held on behalf of the Council. Councillors are not council employees. They may act on behalf of the Council when, for example, acting as a cabinet member or drafting the Council’s response to a consultation. However, they may instead be acting as an elected representative when, for example, corresponding with residents of their ward and seeking to resolve their problems. When acting as an elected representative they are not acting on behalf of the Council.

The Commissioner’s guidance is a useful illustration of where the dividing line falls.

The Commissioner’s guidance on ‘Official information held in private email accounts states:

The Commissioner’s guidance on ‘Information you hold for the purposes of FOIA’ states that FOIA covers:

We are not bound by the Commissioner’s guidance but we agree with and adopt that approach. Information that is held by councillors for the purposes of their role as elected members would not, in our view, be held on behalf of the Council.

We find that the information requested by the appellant is, if held at all, likely to be information held by the councillors for the purposes of their functions as elected members. We note the description of the correspondence that the appellant expects to exist:

Further insight into the nature of that correspondence is provided in an email from Mr. Gourlay to the Council dated 17 August 2023:

We find that emails sent to residents relating to supporting them in their complaint against the Council are not part of a councillor carrying out the functions of a public authority. They are ‘councillor’s casework’ sent in their role as an elected member.

Each of the three named councillors was sent a copy of the request for information. In a later email they were also given the following information:

In addition, the councillors were forwarded emails from the Commissioner which stated ‘You will need to get the named councillors to send you any emails relating to council business that you hold. They should be aware that the deliberate deletion of information held for the purpose of council business is a criminal offence under section 77 of FOIA.’ and ‘The councillors need to supply all emails which pertain to council business and relate to the complainant’s request’.

Their replies were as follows:

It is clear from Councillor Gourlay’s response that he does hold correspondence with Merren Jones, but the correspondence is part of his function as an elected member rather than relating to business of the Council as a public authority.

Councillor Adshead’s email was sent in response to an email from Peter Leppard attaching the ICO’s email cited above. The reference to ‘emails that fall into the category that require passing on’ must therefore be a reference to the category of emails ‘relating to council business’. His response is therefore that he does not hold any emails ‘relating to council business’.

Councillor Sizeland’s response is more ambiguous. He states ‘I am supposing your below email means that we do not have to anything’. The ‘below email’ is an email from Sue Stockdale that states that ‘only data held by the Parish Council or on behalf of the Parish Council will be in scope’. This must, in the tribunal’s view, mean that he considered that he did not have to do anything because he did not hold any information on behalf of the Parish Council, as opposed to information held in his capacity as an individual councillor.

When assessing whether information is held on the balance of probabilities, we take account of the quality and the rigour of the searches carried out. In this case the Council sent the councillors sufficient information to allow them to ascertain if they held any information on behalf of the Council. It forwarded the warning from the Commissioner in relation to section 77 of FOIA. Having been informed by each councillor that they did not hold any information on behalf of the Council, we do not think that it was incumbent on the Council to read all the councillors’ private emails to ascertain for itself whether that was the case.

We accept that it is likely that some of the councillors hold emails to some of the relevant individuals set out in the request, but we do not accept that these are likely to be held on behalf of the Council for the reasons set out above.

For that reason we find, on the balance of probabilities, that the Council did not hold any information within the scope of the request.

Although the Council responded to the request under FOIA and EIR, the Commissioner considered the case under FOIA. In our view the request is for ‘environmental information’ and therefore the Commissioner was wrong to consider it under FOIA. This was not raised by the appellant.

Having considered how we would have approached the matter under EIR we have concluded that the outcome would been the same.

Under regulation 12(4)(a) a public authority may refuse to disclose information to the extent that it does not hold that information when an applicant’s request is received.

Regulation 3(2)(b) provides that environmental information is held by a public authority if it is held by another person on behalf of the authority.

The question of whether information is held under EIR is applied in a similar way to the question of whether information is held under FOIA, including the question of whether information is held on behalf of a public authority.

The only significant difference is that, in theory, the public interest balance applies to this exemption. However, it is not possible to undertake a meaningful public interest test when a request is refused on the basis that the information is not held.

We would therefore have reached the same conclusion, i.e. that the Council did not hold the requested information.

For those reasons, the Commissioner’s error in considering the matter under FOIA was not material to the outcome and we do not allow the appeal on this alternative basis.