James Irvin Margetson v The Information Commissioner

This is an appeal against Decision Notice referenced IC-304488-J9J2 dated 4 November 2024.

By the Decision Notice, the Respondent (“the Commissioner”) decided that, on the balance of probabilities, Gwynedd Council (“the Council”) does not hold information responsive to a request for information made by the Appellant of the Council on 10 October 2022, and that the Council has complied with the requirements of s1(1) of the Freedom of Information Act 2000 (“FOIA”).

The parties were agreeable to determination of the appeal without a hearing. The Tribunal was satisfied, pursuant to Rule 32(1) of the Tribunal Rules, that it could properly determine the issues without a hearing.

The Tribunal’s decision is unanimous.

The Request was this:

“Under the Freedom of Information Act 2000 I respectfully request the following information:

All Information held by Gwynedd council relating to the running of Ysgol Treborth/Ysgol Coed Menai, LL57 2RX. Under the National Minimum Standards for Residential Special Schools, I believe the school produced the following information which should be available:

1.

Any risk assessments that were carried out in relation to the school's premises and grounds

2.

Any risk assessments that were carried out in relation to potential risks to children from public access to children at the school or during activities or outings

3.

Any previous prospectuses for the school

4.

Any information from the meeting of governors relating to the grounds of the school e.g. access, security, members of the public etc.

5.

Any School Policy/Rules Documentation or Handbook

6.

Any additional information or correspondence relating to the running of the school that concerned security (gates, barriers, patrol staff etc.) or access.”

On 16 November 2022, the Council responded. It explained that since the school in question had closed in 2012, “the documentation relating to your questions will have been destroyed in accordance with the Council’s retention schedule...”. The Council sent with its response an extract from the “Council’s retention schedule” identifying for how long different categories of information, cross referenced to the specific categories of information requested by the Appellant, were to be retained, and how they were to be disposed of.

We understand the schedule to indicate that none of the requested information was retained and had been securely disposed of, save in relation to part 4 of the Request (“Any information from the meeting of governors relating to the grounds of the school e.g. access, security, members of the public etc”.), in relation to which the retention schedule marked such records as “PERMANENT”, which we take to mean should be retained permanently, and noted “If the school is unable to store these then they should be offered to the County Archives Service.”. The Council said that a member of staff would need to visit the Council’s modern records centre to ascertain whether any minutes had been retained and, if so, whether there was any reference to matters relating to the school grounds.

In November 2023, over a year later, the Appellant emailed the Council to explain that he had not received a response, and sought an update.

On 23 November 2023, the Council said that “much of the information is historical and there is a lot of work to bring everything together. The department has a meeting next week to discuss, therefore it will probably be the beginning of December when the response will be ready for you.”

On 24 November 2023, the Council confirmed to the Appellant that the Gwynedd Schools Data Protection Officer for Education “has looked and there are no Governors records to be found.”

On 12 December 2023, in further correspondence with the Appellant, the Council said that “There are no minutes of Governors meetings relating to the grounds of the school e.g. access, security, members of the public etc”.

On 9 February 2024, the Appellant requested an internal review. It appears that he was seeking an internal review in relation only to the Council’s response to part 4 of the Request. The Appellant said this:

On 1 March 2024, the Council responded. It said this:

“As a formal response to these request [sic] I would reiterate the position on the governors minutes. As I have stated I have spoken to the officers involved and understand that they have conducted searches in Council records for such information. Ysgol Coed Menai was formally closed at the end of August 2013. As a maintained school it's premise and use of the facilities would generally have been under the control of the governing body. So, information about day to-day site and operational matters would have been with the school. On discontinuance of the school the remaining records would have transferred to the local education authority. These should have been held or disposed of in accordance with the relevant retention policy.

I am aware also that the retention period for minutes of governing bodies is stated to be indefinite in the Councils Document Retention Policy. However, notwithstanding the minutes of the governing body for the period leading up to the closure cannot be found. I understand that this will be a source of frustration to you but unfortunately, I can offer no explanation as to the plight of these documents which have clearly gone astray. This does not necessarily mean that they have been disposed of but the Council cannot provide copies of the documents for the reasons outlined above. We have conducted searches including in the County Archives but those stored there are up to around 1972. Redacted copies can be provided. However, unsatisfactory as this situation is I can offer no better explanation of the situation than that outlined above. ...”

On 5 March 2024, the Appellant requested copies of the school governors’ minutes found in archive. On 6 March 2024 the Council sent them to him, having redacted certain personal data. The Council emailed the minutes to the Appellant by a link, which appears in the hearing bundle before us but which we are unable to open.

On 1 May 2024, the Appellant complained to the Commissioner. His complaint relates to the Council’s response to part 4 of the Request.

The Appellant explained to the Commissioner that:

“There is currently a Definitive Map Modification Order (DMMO) application for a footpath running through my parents home (Treborth Hall) which was a former residential special school run by Gwynedd Council. The former school governor minutes contain vital information as to the history and running of the school. By not releasing this information, the DMMO process has become extremely unfair and will make it easier for Gwynedd Council to create an order.

I believe the council has intentionally concealed this information.

I believe that this is fraudulent behaviour. Me and my parents will lose financially if the Council can push ahead with the order as our properties will be devalued (I also own a property near the former school). The council has every incentive to push ahead with making a footpath order as they will be creating a footpath and appeasing a number of local community members without having to compensate the landowners. Gwynedd Council are also trying to withhold other information relating to this DMMO application which I have made a separate ICO complaint about.”

The Commissioner investigated. He asked for the Council’s explanation as to the searches it had undertaken.

On 18 October 2024, the Council provided its substantive response to the Commissioner’s questions. It responded by reference to the totality of the Request, not just part 4. We set out the Council’s explanation in full.

The Council explained that thorough searches had been carried out; any records held by the school would have been transferred to the Council at the time of closure; “As the school was responsible for its own record keeping practices, it could have disposed of any records it had created at any time prior to closure of they could have been mislaid by the school. The transfer was overseen by an experienced records management officer and therefore any and all such records that could be located at the time and needed to be retained in accordance with the retention schedule would have been safely transported to Caernarfon.”

The Council further explained:

“The school was originally opened as Ysgol Treborth in 1950. The school changed its name to Ysgol Coed Menai in 2003 and later closed 31.12.2012.

Any paper documents including Governors minutes would have been transferred to the Records Management Centre following the school’s closure. These documents would not necessarily be a complete set of documents – this would be dependent upon the school’s record keeping practices.

The Council’s Records Centre is a repository for inactive paper documents that are transferred there from various departments within the Council and also from any schools that are closed.

We have located sets of Governors minutes but none that are relevant to question 4 of the request Any information from the meeting of governors relating to the grounds of the school e.g. access, security, members of the public etc’.

Searches conducted were:

• Searches within the records management centre (manual search through paper files) – with regards to question 4

• Searches with different departments including



Education – With regards to questions 1-6



Environment - with regards to question 1 and 6



Housing and Property – with regards to question 1 and 6



Gwynedd Council Archives – With regards to question 1-6 but focusing on question 4.”

The Council further explained its consultations with staff as follows:

“29.11.2023

- Meeting between Education and Property department to view documentation found in relation to other requests that had also arrived in case these answered questions 1 or 6

12.12.2023

– Meeting between Education and Property department to view and further discuss documentation found in relation to other requests that had also arrived in case these answered questions 1 or 6

18.12.2023

- Meeting held with Environment department to view documentation found in relation to other requests that had also arrived in case these were relevant to questions 1 or 6”

The Council explained that for electronic data searches, a search within the Council’s electronic SharePoint filing system titled iGwynedd was carried out by the Education department; there was no specific wording used to conduct the searches and the officer responsible searched all files.

The Council also explained that searches were conducted “using the words Treborth, Ysgol Treborth, Coed Menai and Ysgol Coed Menai on the Records Management system which provides a number and location of file(s) containg [sic] paper records matching the search criteria. (paper records management centre)”.

In response to the Commissioner’s question “If no or inadequate searches were done at the time, please rectify this now and let me know what you have done.”, the Council confirmed that a full search was “carried out at the time” and that no further searches were required.

In response to the Commissioner’s question “If the information were held would it be held as manual or electronic records?”, the Council simply answered, “See above.”, presumably meaning to indicate that it had conducted hard copy and electronic searches, but without answering the Commissioner’s question.

In response to the Commissioner’s question “Was any recorded information ever held relevant to the scope of the complainant’s request but deleted/destroyed?”, the Council said this: “School would have been responsible for their own record keeping arrangements as a separate Data Controller, therefore we are unable to answer this question.”

In response to the Commissioner's question “If recorded information was held but is no longer held, when did the Council cease to retain this information?”, the Council said this: “Any paper files would have been transferred to the Councils Records Management centre and stored in line with specified retention periods.”

In response to the Commissioner’s question “Does the Council have a record of the document’s destruction?”, the Council said this: “The Records Centre system stores paper documents that are transferred there from various departments within Cyngor Gwynedd. The Record Centre system retains a record of any documents destroyed. The retention period for Governors Minutes at the time of school closure was permanent therefore no Governors meeting documents would have been destroyed by the Council.” The Council explained that the Record of destruction is kept permanently, and provided this tabulated data:

The Commissioner asked the Council how the Council’s formal records management policy provided for the retention and deletion of records of the type requested. The Council supplied the same information to the Commissioner which it had provided to the Appellant on 16 November 2022 in the form of the extract from the Council’s retention schedule which we have already described.

The Commissioner asked the Council whether if the information requested was electronic data which had been deleted, copies might have been made or held in other locations. The Council said this: “Because of the date of school opening/closure, it is highly likely that all documentation consisted of manual paper records. As noted above, any paper files would have been transferred to the Councils Records Management centre and stored in line with specified retention periods. No electronic files were transferred to the Council at the time of closure.”

The Commissioner asked the Council whether there was a business purpose for which the requested information should be held, and, if so, what that purpose was. The Council said this: “There is no business purpose to hold the information ie risk assessments and prospectuses, which are necessarily time limited as per the retention period above. The only exception are the Governors minutes which were transferred to the Records Management Centre and stored in line with the specified retention period.”

The Commissioner asked the Council whether there were any statutory requirements to retain the requested information. The Council referred to its other responses and the extracts of the retention schedule supplied previously. It did not answer the Commissioner’s question as to any statutory requirement.

By the Decision Notice, the Commissioner decided that:

By Notice of Appeal dated 2 December 29024, the Appellant submits, in summary:

By way of outcome of his appeal, the Appellant asks the Tribunal to set aside the Decision Notice, and substitute a Decision Notice which requires the Council to:

By Response to the appeal dated 20 January 2025, the Commissioner submits, in summary:

By Reply to the Commissioner’s Response, dated 3 February 2025, the Appellant maintains his position and rejects the Commissioner's arguments. We have considered carefully the full detail of the Reply.

The relevant provisions of FOIA are as follows:

We have considered whether the Council should have handled the Request pursuant to the Environmental Information Regulations 2004 (“EIR”).

Regulation 2 EIR defines environmental information as follows:

“any information in written, visual, aural, electronic or any other material form on—

(a)

the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements;

(b)

factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a);

(c)

measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in (a) and (b) as well as measures or activities designed to protect those elements;

(d)

reports on the implementation of environmental legislation;

(e)

cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in (c); and

(f)

the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are or may be affected by the state of the elements of the environment referred to in (a) or, through those elements, by any of the matters referred to in (b) and (c);”

We remind ourselves that the part 4 of the Request was for “Any information from the meeting of governors relating to the grounds of the school e.g. access, security, members of the public etc.”

We do not consider that, as worded, that indicates a request for environmental information. The information requested is said to relate to “the grounds of the school”. We do not read the words “the grounds of the school”, construed in the totality of the wording of part 4 of the Request, to indicate that the Request is addressed to the grounds as an element of the environment, rather to information relating to the school’s management of the grounds as school grounds. By extension therefore, we do not read the exemplar types of information sought in relation to the grounds of the school, being information such as access, security and members of the public, as being any measure (including an administrative measure), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the state of the land or landscape itself, within the meaning of EIR 2(c).

We acknowledge that after the Request was made, the Appellant explained to the Commissioner that he is concerned about the prospect of creation of a footpath on the land in question. A request about a footpath might well be a request for environmental information but, in our view, the Request as presented was not a request for environmental information for the reasons we have given.

As it is, whether the Request is to be dealt with under FOIA or EIR, the issue in dispute in this appeal is whether the Council holds responsive information, and, in that context, the adequacy of its searches. Our analysis of those issues is the same, whether undertaken in the context of FOIA or EIR.

The import of s58 FOIA is that the right of appeal to the First-tier Tribunal (whether under FOIA or EIR) involves a full merits consideration of whether, on the facts and the law, the public authority’s response to the Request is in accordance with Part 1 of FOIA (Information Commissioner v Malnick and ACOBA [2018] UKUT 72 (AAC); [2018] AACR 29, at paragraphs [45]-[46] and [90]. The Tribunal has jurisdiction to decide, de novo on the merits, whether the Commissioner’s decision is in accordance with the law.

The Tribunal’s role is thus effectively confined to a review of the public authority’s decision. It is not open to the Tribunal to order all the reliefs sought by the Notice of Appeal, for example, to provide evidence of the transfer process following the school’s closure or direct the Commissioner to investigate wider data protection issues arising from the Council’s inability to account for records.

We start with two observations.

First, it is no part of the application of FOIA to regulate what information a public authority should create, hold, retain or destroy. FOIA’s application is to require a public authority to inform a person requesting information whether it holds information of the description specified in the request, and if that is the case, to have that information communicated to them, subject to any applicable exemption from disclosure.

Second, there can seldom be certainty that information responsive to a FOIA request may not continue to exist after adequate searches through a public authority’s records. The test, however, is whether such information remains on the balance of probabilities.

In assessing whether, on the balance of probabilities, a public authority holds information responsive to a request, the Tribunal pays careful regard to the adequacy of those searches.

We remind ourselves that the scope of this appeal is limited to part 4 of the Request: “Any information from the meeting of governors relating to the grounds of the school e.g. access, security, members of the public etc”.

Having carefully considered the Council’s explanation of matters, we are not satisfied that the Council’s searches have been adequate.

First, the adequacy of the searches is, in our view, called into question by inconsistencies in the Council’s account of what its searches identified:

Second, it is not evident to us that searches were undertaken in appropriate departments within the Council. Manual searches for hard copies of the requested governors’ minutes were undertaken in Education and something called Gwynedd Council Archives (and we do not know whether those archives are the same as, or something different from, the County Archives), but not in Environment or Housing and Property. Given that the subject matter of the requested minutes was the “grounds of the school”in relation to which the Appellant only identified issues of access, security and members of the public as examples, it seems to us that a search of hard copy records in Environment and Housing and Property should have been undertaken. That is our view even though we consider that the information requested is not environmental information within the meaning of EIR. The “grounds of school” is sufficiently broad, in our view, to have required searches of all three repositories of Environment, Housing and Property.

The Council has described certain meetings between Education and Property, and a “meeting with Environment”, all undertaken to consider documentation found in relation to other requests in case that documentation was relevant to parts 1 to 6 of the Request. On the basis of the brief description of those meetings, we do not consider they were an adequate substitute for searching the hard copy records of Environment, Housing and Property.

Third, in relation to electronic searches: the Council has said that it searched the Council’s electronic SharePoint filing system called iGwynedd. It also refers to searches on the Records Management System. We cannot tell whether those are different systems, and whether either of them is different again from the Council’s “modern records centre”, to which it referred in its response to the Appellant of 16 November 2022.

The search of iGwynedd was carried out by the Education department, without use of search terms because, as we understand it, all files were searched. We cannot identify whether the person searching only searched that section of the iGwynedd relating to Education’s information holdings. For the same reason we have identified into relation to the scope of hard copy searches, an electronic search should have covered the Council’s other departmental holdings.

The Council says that its Records Management system provides a number and location of files(s) containing paper records matching the search criteria. The Council used the following search terms: Treborth, Ysgol Treborth, Coed Menai and Ysgol Coed Menai. We do not know how the hard copy files were named and so whether such search terms were sufficient to identify potentially relevant files, whose contents might themselves be information responsive to part 4 of the Request.

Overall, our concern is that the searches described are vitiated by a number of issues, which may either be simply a matter of imprecise descriptors of the searches, or are substantive issues. The Council has proceeded throughout on the basis of speculation as to what may have happened to the relevant records. Where it has conducted searches, the scope of the hard copy information repositories searched appears insufficient. It is not evident to us that in conducting electronic searches, the Council has been justifiedly confident that the search terms used were appropriate. The Council has not provided evidence to the Commissioner of the searches undertaken and their results, for example lists of named files or screenshots of search results. We accept that generally the Commissioner is entitled to take the public authority’s word absent any contra-indication but in circumstances where the Council has issued a run of inconsistent accounts as to what exists or is held, we consider closer scrutiny of the searches ultimately described is required. We also accept that it is not possible, or at least easy, to produce evidence of negative results, but, again, in light of the Council’s inconsistent accounts, some visibility, for example, in the form of an audit trail of screenshots of searches, might reasonably be expected.

The Appellant has identified a motive for the Council withholding the requested information. He suggests that the Council is looking to apply for a footpath running through the grounds of his parents’ home, the site of the former school. We infer that the Appellant considers the requested information may shed light on matters relevant to the Council’s plans, presumably relating to former use of the land where the footpath is planned. We neither can nor need to determine that issue in this appeal and observe only that even if the searches were inadequate, we have seen no evidence of the Council deliberately concealing information, as the Appellant suggests. That is speculation on the Appellant’s part. The point is, however, potentially relevant to the need for the Council to search the Environment, Housing and Property parts of its information holdings.

In our view, the Commissioner was wrong to be satisfied that: the Council has conducted appropriate searches; that, on that basis, on the balance of probabilities, the requested information is not held; and that, against that background, the Council has complied with s1(1) FOIA.

To that extent the Decision Notice is not in accordance with the law.

The appeal must be allowed. We substitute the Decision Notice on the face of this judgment.

We should make clear: we are not finding that the Council does hold the information requested, only that the Commissioner was not entitled to conclude that, on the balance of probabilities, the Council does not hold the requested information. Compliance by the Council with its duties under s1(1) FOIA, including adequate searches, may not result in the provision of information to the Appellant which is responsive to the Request.