Laura Cividini v The Information Commissioner

In her grounds of appeal, the Appellant stated that she accepted the Council’s responses to items 2 and 4 of the Request.

The Appellant’s view was that the Council had not responded, or had not fully responded, to the other items of the Request. The Appellant stated that whenever she requested information from the Council, she always received meaningless answers. The Appellant disputed the Council’s position that relevant Requested Information had already been provided in 2022, stating also that sufficient time had passed to expect new and updated information in respect of the Request.

The Appellant accepted that previous requests for information made to the Council were about the same subject matter but she stated that they were not identical to the Request. The Appellant also considered that previous requests were not answered truthfully.

The Appellant’s grounds of appeal set out her comments on each item of the Request, stating why she considered that the relevant Requested Information was not provided. We address below the material points from her grounds of appeal.

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 parties consented to the appeal being determined by the Tribunal without an oral hearing.

The Tribunal considered that the appeal was suitable for determination on the papers in accordance with Rule 32 of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 and was satisfied that it was fair and just to conduct the appeal in this way.

The Tribunal read and took account of a bundle of evidence and pleadings, as well as some separate written submissions from the parties (together with additional attachments to the Appellant’s submissions).

All of the contents of the bundles and the separate submissions and attachments 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 (on the balance of probabilities) the Council does not hold any further information within the scope of the Request.

As we have noted, the Appellant accepted the Council’s responses to items 2 and 4 of the Request. Consequently, the scope of the appeal relates to (and our decision addresses) only the remaining items of the Request – namely, items 1, 3, 5 and 6 of the Request.

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

The Appellant made certain allegations regarding the Council’s attitude to her and how it handled FOIA requests. The Appellant also made certain allegations in respect of breaches of insurance terms, the misuse of public funds and the Council’s attitude regarding alleged unlawful activities in connection with the Car Park.

As we noted in paragraph 20 (and summarised in paragraph 21), 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 Council. 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 Council 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 Council 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 conclusion in the Decision Notice.

Accordingly, in determining whether or not any further 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 further information is not held.

Where we refer below to our views or findings regarding whether further information was held within the scope of the Request, these should be construed as being based on the balance of probabilities.

Item 1 of the Request comprised two parts. We first address the first part of item 1 of the Request (referring to an agreement between the Council and shops).

The Appellant argued that the requested agreement between the Council and shops had not been disclosed, whereas the Council had stated (in response to the Request) that this information was previously provided. The Council’s response to the Request referred to its “October response, November response and Internal Review response”, which related to responses given to the Appellant in respect of previous requests for information in 2022. A pertinent document in that regard was a letter from the Council to the Appellant dated 17 November 2022 (the “November 2022 Letter”).

The Appellant referred to the September 2021 Minutes, which stated that the Council’s insurer had agreed to the principle of volunteer key holding in respect of the Car Park as long as the volunteers were suitably trained. The Appellant accordingly considered that the information in the first part of item 1 of the Request does exist, but stated that it had not been disclosed.

In our view, the November 2022 Letter did not (contrary to the Council’s assertion) specifically address the information which was requested by way of the first part of item 1 of the Request. However, FOIA only covers recorded information held by a public authority and we saw no evidence to suggest that there was any recorded agreement between the Council and the shops. Whilst the September 2021 Minutes referred to the insurer’s requirements that key holders were suitably trained, it does not necessarily follow that there must be a documented agreement between the Council and the shops in respect of any such training. In the absence of any evidence to the contrary, we therefore we do not accept the Appellant’s argument that such information must exist.

On a related point, the Appellant stated in her grounds of appeal that she still does not know “what instructions and training were provided to the shopkeepers in charge of the keys”. However, the Appellant does not have any entitlement to that information under FOIA, if it is not held by the Council. For the reasons we have given, we conclude that no such information was held by the Council.

The second part of item 1 of the Request sought to know how many shops were provided with keys to the Car Park. The Appellant stated in her grounds of appeal that the November 2022 Letter referred to there being seven sets of keys for the Car Park but that this did not answer the question of how many shops have the keys. We agree with that statement. However, the September 2021 Minutes (to which the Appellant had been referred by the Council in response to previous requests for information) stated that three shops were to be given keys. The Appellant argued that the September 2021 Minutes were out of date and that some shops had since closed, and accordingly that this information was no longer relevant and therefore that the Council had not complied to this part of the Request.

In that regard, we would make similar points to our comments in respect of the first part of item 1 of the Request, which is that FOIA applies only in respect of recorded information which is held by a public authority. FOIA simply operates (subject to certain exemptions, as we have mentioned) to provide individuals with access to information which is held by a public authority. It is not necessarily the case that any relevant information will be correct or up to date - and accordingly the operation of FOIA does not relate to the accuracy of any information which may be held by a public authority. Whilst the Appellant may consider that the disclosed information in the September 2021 Minutes is out of date, we saw no evidence to suggest that any subsequent relevant information is held by the Council.

For the above reasons, we therefore find that no further information is held by the Council in respect of item 1 of the Request.

As we have noted, the Council’s response to this item of the Request stated that it does not permit use of the Car Park when it is closed at night and that it was not aware that shops use the Car Park at night or that cars were parked there for days on end.

The Appellant referred to video evidence that she had sent to the Council (which was also provided to the Tribunal) allegedly showing illegitimate use of the Car Park at night. She argued that the Council had ignored this and other evidence regarding alleged misuse of the Car Park. The Appellant also referred to the June 2023 Minutes, which recorded that: “The car park has been left unlocked past 6.30pm in the evening on 4 occasions over the past 3 weeks…” and that “…this situation cannot continue because it poses a risk to property, the car park and gives rise to anti-social incidents and complaints.”.

Given the contents of the June 2023 Minutes, we understand why the Appellant considered the Council’s response to item 3 of the Request to be incorrect, insofar as it alluded to the Council not being not aware of use of the Car Park at night. However, the June 2023 Minutes simply recorded the Council’s awareness that the Car Park had been left unlocked on occasions at night time, which is not the same thing as being aware of shops using the Car Park at night or of cars being parked there for days on end.

We also understand why the Appellant considered the Council’s response to item 3 of the Request to be incorrect having regard to the evidence which the Appellant had provided to the Council, in that the Appellant evidently considered that the Council must therefore have been aware of the alleged illegitimate use of the Car Park at night. However, we consider this to be immaterial for current purposes, for the following reasons.

It is important to note that part 3 of the Request only sought information as to why shops were allowed to use the Car Park at night and why cars were parked there for long periods of time (including overnight). We find that it was clear from the evidence before us that the Council did not permit use of the Car Park at night, including overnight parking of cars. Given this, it follows that the Council would not have any recorded information explaining why the Car Park was used at night.

Consequently, any evidence which the Appellant may have provided to the Council allegedly showing the alleged misuse of the Car Park is not within the scope of item 3 of the Request, which was seeking information which would explain the alleged misuse use of the Car Park. Similarly, such evidence does not demonstrate that additional information within the scope of item 3 of the Request must be held by the Council.

For the above reasons, we therefore find that no information is held by the Council in respect of item 3 of the Request.

In her grounds of appeal, the Appellant referred to the Council stating, in September 2022, in response to a previous request for information, that the Car Park opening times are Monday to Saturday 8.30am to 6.30pm. The Appellant stated that the opening and closing times of the Car Park had since changed several times, but she also acknowledged the possibility “that this old information is still relevant”. In that regard, as we have already mentioned, information held by a public authority may still be relevant, even if it is no longer accurate.

However, as the Appellant also (correctly) pointed out, item 5 of the Request sought details of the opening and closing times of the Car Park “as communicated to the insurance company”. The Appellant therefore considered that the relevant information was not provided by the Council.

There was a letter from the Council to the Appellant dated 20 September 2022 (which would appear to be what the Appellant was referring to in her grounds of appeal). This addressed a request for information made by the Appellant, including regarding the purpose of the Car Park opening times and whether they were part of the terms and conditions of the insurance. That request was seeking different information to that which was sought in item 5 of the Request and we agree with the Appellant that the Council’s letter dated 20 September 2022 did not answer the latter.

However, we find that the Council did otherwise respond to the Appellant with regard to the information which was sought by item 5 of the Request, as follows:

We consider that the Council’s previous responses clearly stated that it had not disclosed details of the opening and closing times of the Cark Park to its insurance company. That is, of course, also consistent with its stated position that there was no stipulation in the insurance policy regarding the opening times of the Cark Park.

We also note that (as referred to in sub-paragraph ‘c’ of paragraph 57) the November 2022 Letter specifically addressed a request for information which was substantially similar to item 5 of the Request and stated that no such information was held by the Council.

In her reply to the Commissioner’s response to the appeal, the Appellant submitted that the September 2021 Minutes stated that the insurer must agree to the Car Park opening times. However, that is not what the September 2021 Minutes recorded. Rather, as we have already noted, they stated (so far as is relevant) that the Council’s insurer had agreed to the principle of volunteer key holding as long as the volunteers were suitably trained. The September 2021 Minutes did address the Car Park opening times (and, as noted in the letter from the Council to the Appellant dated 3 February 2023, referred to them being linked to the opening times of the shops) and stated that the opening times would be reviewed after six months. However, there was nothing the September 2021 Minutes stating that the opening times of the Car Park needed to be notified to the insurers.

For the reasons we have given above, we find that the Council did provide a response to item 5 of the Request. There was also no evidence before us to suggest that any further relevant information is held by the Council.

Accordingly, we find that no further information is held by the Council in respect of item 5 of the Request.

As we have noted, the Council’s response to this item of the Request referred to its “November response and Internal Review response”, which related to responses given to the Appellant in respect of previous requests for information in 2022. However, based on the evidence before us, item 6 of the Request was a new request for information which had not been specifically raised with the Council previously.

As we have noted, the November 2022 Letter provided a response regarding the request for a copy of the information sent to the insurer in respect of the Cark Park’s opening times. We also accept that the Council has previously provided the Appellant with information relating the insurance of the Car Park, including details of the insurance policies and premiums. However, item 6 of the Request sought all communications with the insurance company in respect of the insurance for the Hall. There was nothing before us showing that the Council had previously provided such information (whether in respect of the Hall or the Car Park).

Accordingly, we find that item 6 of the Request was not responded to previously. Subject to our comments in paragraph 3, we consider that it is possible that other information could be held within the scope of item 6 of the Request, based on our view that some correspondence would ordinarily be expected to exist in connection with arrangements for the relevant insurance (including, for example, a renewal quote from the insurance company or the Council’s insurance brokers, or forms submitting information for the purposes of effecting the insurance). Certainly, there was nothing before us to explain why the Council would not hold any further information within the scope of item 6 of the Request (which, of course, is a corollary of our finding that this was not responded to by the Council).

In our view, the Commissioner failed properly to assess all aspects of the Request, or failed properly to interrogate the Council with regard to whether it had responded to item 6 of the Request, in coming to his conclusion in the Decision Notice. That conclusion was based in large part on the Commissioner’s consideration of the Council’s letter to the Appellant dated 3 February 2023, but item 6 of the Request contained a request for information which was not addressed in that letter.

For all of the above reasons, we find that the Council does not hold any further information within the scope of items 1, 3 and 5 of the Request, but that the Commissioner erred in concluding (on the balance of probabilities) that the Council does not hold any further information within the scope of item 6 of the Request.

For all of the reasons we have given, we find that the Decision Notice involved an error of law by concluding that, on the balance of probabilities, the Council does not hold any further information within the scope of the Request.

We therefore allow the appeal in part and we make the Substituted Decision Notice as set out above.