John Mitchell v The Information Commissioner

The Appellant’s grounds of appeal reflected his views that Decision Notice was “inaccurate and incorrect”. The material aspects of the Appellant’s grounds of appeal were, in essence, that:

The powers of the Tribunal in determining this appeal are set out in section 58, as follows:

“(1)

If on an appeal under section 57 the Tribunal considers—

(a)

that the notice against which the appeal is brought is not in accordance with the law, or

(b)

to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently,

the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal.

(2)

On such an appeal, the Tribunal may Review any finding of fact on which the notice in question was based.”.

In summary, therefore, the Tribunal’s remit for the purposes of this appeal was to consider whether the Decision Notice was in accordance with the law. In reaching its decision, the Tribunal may review any findings of fact on which the Decision Notice was based and the Tribunal may come to a different decision regarding those facts. Essentially, the Tribunal is empowered to undertake a ‘full merits review’ of the appeal before it (so far as the Decision Notice is concerned).

The hearing was held by the cloud video platform. The Tribunal Panel and the Appellant joined remotely. The Tribunal was satisfied that it was fair and just to conduct the hearing in this way. The Commissioner did not appear and was not represented.

The Tribunal read and took account of a bundle of evidence and pleadings, as well as some separate written submissions from the Commissioner (together with some attachments to those submissions).

We also heard oral submissions from the Appellant during the hearing.

All of the contents of the bundles and the submissions of the Appellant during the hearing were taken into account, even if not directly referred to in this decision.

Section 1(1) provides individuals with a general right of access to information held by public authorities. It provides:

“Any person making a request for information to a public authority is entitled—

(a)

to be informed in writing by the public authority whether it holds information of the description specified in the request, and

(b)

if that is the case, to have that information communicated to him.”.

In essence, under section 1(1), a person who has requested information from a public authority is entitled to be informed in writing whether it holds that information. If the public authority does hold the requested information, that person is entitled to have that information communicated to them. However, those entitlements are subject to the other provisions of FOIA, including some exemptions and qualifications which may apply even if the requested information is held by the public authority (but those are not relevant for current purposes).

Inaccordancewith the remit of the Tribunal to which we have referred, the fundamental issue which we needed to determine in the appeal was whether the Commissioner was correct to conclude, in the Decision Notice, that the ICO does not hold any further information within the scope of the Request.

We consider that it is important to stress what is outside of the scope of the appeal.

The Appellant made allegations regarding incompetency on the part of the ICO and its staff, as well as certain allegations of deceit in connection with the ICO’s section 50 investigation and the Decision Notice.

The Appellant’s submissions included comments on issues regarding the ICO allegedly deciding that it no longer needed to monitor Devon and Cornwall Police, as well as his views about the activities of other public authorities.

During the hearing, the Appellant also criticised the Commissioner’s investigation, commenting that the Decision Notice had been issued without the Appellant being given the chance to clarify and comment on matters, as well as referring to the ICO not taking action regarding alleged non-compliance by Devon and Cornwall Police in dealing with FOIA requests and Subject Access Requests.

As we noted in paragraph 17 (and summarised in paragraph 18), the scope of the Tribunal’s remit relates to the lawfulness of the Decision Notice. Any other issues are beyond the Tribunal’s powers to determine and fall outside of the scope of the appeal.

Consequently, the appeal was not about any of the above issues, or any other issues relating to any allegedfailings or impropriety by the ICO or any other public authority. We have no jurisdiction to consider or determine any such issues.

We turn now to the question of whether any further information is held by the ICO within the scope of the Request.

It is important to note that, notwithstanding section 1(1), it is not the role of either the Commissioner or the Tribunal to determine conclusively (or, in other words, with certainty) whether or not information is actually held by a public authority for the purposes of that section. The Decision Notice referred to the ‘balance of probabilities’ in respect of the Commissioner’s conclusion that no further information was held by the ICO within the scope of the Request. In simple terms, the ‘balance of probabilities’ means that something is more likely than not to be the case. This was the correct legal test to be applied by the Commissioner in reaching his conclusions in the Decision Notice.

Accordingly, in determining whether or not information is held on the balance of probabilities, a decision is often reached based on an assessment of the adequacy of the public authority’s searches for the information (where relevant) and any other reasons explaining why the information is not held.

The crux of the Appellant’s arguments that the Decision Notice was wrong centred around the Appellant’s position that the ICO had confirmed that it held information within the scope of the Request. We address the material aspects of those views below.

The Appellant referred to a separate decision notice of the ICO, dated 21 December 2023, under reference IC-272614-H5F4. The Appellant averred that that decision notice had confirmed that the ICO holds further information within the scope of the Request.

The Other Decision Notice was issued in response to a request from the Appellant dated 26 November 2023. It is worth quoting the wording of that request, as recorded in the Other Decision Notice:

“From Jan 2019 to the present day please provide a copy of :

1.

The Practice Recommendations that the ICO has issued to Devon and Cornwall Police

2.

The date of the self referrals from the D&C police to the ICO.

3.

All the information the ICO hold on D&C Police’s timeliness stats for access information requests.

(a)

To include performance table information that has been submitted to the Commissioner for monitoring timeliness compliance to the FOIA ,to include best practice internal review statistical data.

(b)

To include performance table information that has been submitted to the Commissioner for monitoring timeliness compliance to the EIR ,to include best practice internal review statistical data.

(c)

To include performance table information that has been submitted to the Commissioner for monitoring timeliness compliance to the DPA to include best practice internal review statistical data.

4.

The annual total amount of complaints that have submitted to the ICO regarding this police force

(a)

to include its illegal use of malware.”

In the Other Decision Notice, the ICO stated that it did not hold information in relation to the items numbered 1, 2, 3(a) and 3(b) in the Other Request. The Other Decision Notice did confirm, however, that the ICO holds emails/correspondence from the public with complaints about Devon and Cornwall Police's timeliness in handling requests and performance information.

As we have stated, the Appellant’s position was that the Other Decision Notice confirmed that the ICO holds further information within the scope of the Request. Specifically, the Appellant stated in his grounds of appeal: “ICO case ref number IC-272614-H5F4 - confirms what the timeliness stats are being withheld. Yet no ref of this is contained within the Decision Notice issued on 21/03/2024”.

It is important to note, however, that the Request did not ask for information regarding the timescales within which Devon and Cornwall Police responded to information requests (including any related statistics). The Request asked for details of time arrangements that have been agreed between the ICO and Devon and Cornwall Police for 2022-2023 with regard to processing information requests.

Consequently, the Other Decision Notice did not (contrary to the Appellant’s assertions) confirm that the ICO held further information within the scope of the Request. Likewise, the Other Request did not (in contrast to the Request) refer to any arrangements which had been allegedly agreed between the ICO and Devon and Cornwall Police in respect of the timescales for processing information requests.

We find that the Appellant is therefore mistaken in his view that the Other Decision Notice confirmed that the ICO held further information within the scope of the Request.

The Appellant also stated in his grounds of appeal that correspondence from the ICO on 20 November 2023 “confirmed receipt of data” relating to timeliness statistics from Devon and Cornwall Police for 2022/23. That correspondence was an email from the ICO following its internal review in respect of the Request, which we referred to in paragraph 11.

We consider that there are four particular points of note in respect of the Appellant’s assertion regarding the ICO’s correspondence of 20 November 2023, as follows.

First, that correspondence was (of course) dated after the Request and related to the ICO’s statement of circumstances at that time, some two months after the date of the Request. In that regard, it does not evidence that further information within the scope of the Request was held by the ICO at the date of the Request (which is the relevant date to be taken into account).

Secondly, the correspondence merely stated that the ICO’s FOIA complaints team had “recently” written to Devon and Cornwall Police to ask for their timeliness statistics for 2022/23 – and consequently (related to the first point) it indicates that such information had been sought after the date of the Request (but again we reiterate that this information was not within the scope of the Request in any event).

Thirdly, whilst the correspondence refers to the ICO having recently written to Devon and Cornwall Police, there is no mention of a reply of any sort being received, nor any mention of any other correspondence or arrangement which would be relevant to any alleged ‘agreement’ between the ICO and Devon and Cornwall Police as referred to in the Request.

Finally, the correspondence specifically stated (twice) that there were no time arrangements relating to the processing of information requests by Devon and Cornwall Police.

Accordingly, we find that the Appellant is also mistaken in his view that the ICO’s correspondence of 20 November 2023 confirmed that the ICO holds further information within the scope of the Request.

The Appellant also referred to correspondence from the ICO dated 4 January 2024 (under case reference IC-265142-V6L5), in connection with the Appellant’s complaint regarding Devon and Cornwall Police’s handling of a Subject Access Request which he made on 9 August 2023. Again, the Appellant’s position that was this correspondence evidenced that the ICO holds further information within the scope of the Request.

In that regard, we would make the following three points, which are similar to the ones above regarding the ICO’s correspondence dated 20 November 2023.

First, the ICO’s correspondence of 4 January 2024 was also dated after the Request and also related to the ICO’s statement of circumstances at that time (which in this case was almost four months after the date of the Request). Therefore it also does not evidence that further information within the scope of the Request was held by the ICO at the date of the Request.

Secondly, the correspondence simply stated that the ICO was aware that Devon and Cornwall Police had a significant backlog for dealing with Subject Access Requests and that the ICO was monitoring the situation and was working with Devon and Cornwall Police to help reduce the backlog. Whilst the ICO may have been helping Devon and Cornwall Police to reduce its backlog of Subject Access Requests, that is not the same thing as actually entering into an agreement with them for the processing of information requests (as referred to in the Request).

Thirdly, again, there was no indication of any other correspondence or arrangement which would be relevant to any such alleged ‘agreement’.

Therefore we also reject the Appellant’s view that the ICO’s correspondence dated 4 January 2024 demonstrated that the ICO holds further information within the scope of the Request.

In respect of the part of the Request seeking the ICO’s latest audit report relating to Devon and Cornwall Police, the ICO did provide (as we noted in paragraph 8) a copy of an audit report dated September 2021, which it stated was the most recent audit report.

In considering the question of whether the ICO (on the balance of probabilities) might hold further relevant audit information, we took into account the following two relevant documents in particular.

The first document was a copy of the September 2021 audit report which was disclosed to the Appellant. We find (as the Commissioner also submitted) that the report does not reference any actual or proposed dates of any future audits. Therefore, there was no indication that there would be any further audits after September 2021 and consequently there was nothing to suggest that a subsequent audit might have taken place.

The second document was an email dated 31 March 2025 (sent internally within the ICO from a staff member from its ‘Assurance’ department) stating that no further audit of Devon and Cornwall Police was conducted between September 2021 and the date of the Request.

For the above reasons, we find that (on the balance of probabilities) there was no further information within the scope of the Request relating to any audit on Devon and Cornwall Police.

For completeness, we would observe incidentally that the internal email dated 31 March 2025 stated that an audit was completed with Devon and Cornwall Police in November 2023. However, that was of course after the date of the Request and therefore does not fall within its scope.

The Appellant put forward various other arguments to support his view that the ICO holds further information within the scope of the Request, including by reference to other decision notices of the ICO and other dealings of the ICO with Devon and Cornwall Police. However, we could see no relevant evidence to validate those arguments.

There was also no other evidence before us which would suggest that the ICO holds any further information within the scope of the Request.

For all of the above reasons, we find that (on the balance of probabilities) the ICO does not hold any further information within the scope of the Request.

For all of the reasons we have given, we find that the Decision Notice was correct to conclude that, on the balance of probabilities, the ICO does not hold any further information within the scope of the Request.

We thereforedismiss the appeal.