Christopher Matthew Cawthorne v The Information Commissioner

This is an appeal against a decision of the Information Commissioner (“the Commissioner”) dated 31 July 2025, reference IC-361178-B5G7 (“the Decision Notice”).

The hearing took place via Cloud Video Platform on Thursday 25 June 2026. The Tribunal was satisfied that it was fair and just to conduct the hearing in this manner. No adjustments were requested by any party. The Appellant represented himself. The Respondent did not attend, having previously indicated that they did not intend to do so.

The appeal relates to the application of the Freedom of Information Act 2000 (“FOIA”). It concerns information about a webpage maintained by Essex County Council (“the Council”).

The Appellant made the request which is the subject of this appeal on 21 November 2024 in writing as follows:

“I am writing to obtain the rationale behind the changing of the ‘report a pothole’ link on the Essex Highways website “Potholes” page https://www.essexhighways.org/roads-and-pavements/potholes so that it landed at the start of the reporting process on the “Tell us” page, https://www.essexhighways.org/tell-us, rather than at a far later stage of the pothole reporting process where the wording to phone in faults that are a risk to public safety was not visible. I believe that this occurred on or around 8/2/2024. If this date is incorrect can you advice the correct date.

Please can you supply all correspondence concerning these changes, including correspondence of Cllr Tom Cunniingham, the Cabinet Minister for Highways. This includes, but is not limited to, emails, memos, system notes, WhatsApp or text messages etc.

Please can you supply cached copies of both eh “Potholes” and the “Tell Us” pages prior to this change being made”.

The request was acknowledged by the Council on 22 November 2024.

The Council responded to the request on 12 December 2024. In relation to the first part of the request, the Council responded as follows:

“I can confirm that Essex County Council does not hold this information. There is no recorded rationale in relation to the changes made on to the potholes page on the Essex Highways website.

However, the Essex Highways website is routinely reviewed, including considering feedback from users. In this instance it was considered that a minor amendment based on customer feedback could help improve the customer journey, if the link from the potholes page to the Tell us page went to the top of the Tell Us page, rather than directly to the start of reporting pothole reporting journey.

This minor change means that users are now more easily able to see the phone number at the top of the webpage as well as at the appropriate points in the reporting journey when they follow the link to the reporting tool”.

In relation to the second part of the request, the Council attached an extract from an email, sent to “Insurance.Claims@essex.gov.uk” and copied to “YourRight.ToKnow@essex.gov.uk” on 06 February 2024. The Council stated that the correspondence showed “the relevant part (highlighted), that led to a review of the Essex Highways website by a member of the communications team. As previously mentioned, the website is routinely reviewed and reviewed following feedback from users. Although the amendment was unnecessary it was considered that it could improve the customer journey, if the link went to the top of the Tell us page, rather than directly to the start of reporting pothole reporting journey”.

The Council explained that they had redacted some information from the email, namely the name of the sender of the email and the name of the recipient of the email, in reliance of section 40(1) and section 40(2) of the FOIA.

The email that the Council disclosed had, in fact, been sent by the Appellant. An extract from that email was provided to the Appellant by the Council in response to the Appellant’s information request as follows:

“Hello [redacted],

I am currently gathering evidence as after you passed my complaint regarding the construction of how the link between the Potholes page and the Make a Claim page effectively “browsewraps” the information that you later rely upon to deny liability to Compliance and Complaints, ECC found no fault in the website or online reporting procedures (the final response was sent less than one business day after you passed on the complaint so I guess it didn’t get run past legal for instance and the answer really doesn’t actually address my concern, only that such wording exists, something I have never disputed). I complained to the Local Government & Social Care Ombudsman but they are reluctant to consider my complaint’s evidence having made a similar flawed investigation (as per Complaints and Compliance) without even considering my evidence (which was too large a file to upload to their claims portal) which also did not actually address the meat of my complaint. I have therefore instigated a Judicial Review of their decision not to consider my complaint”.

In relation to the third part of the request, the Council’s response was as follows:

“I can confirm that we do not hold cached copies of both the “Potholes” and the “Tell us” pages prior to this change being made, however you may find archived versions of the pages publicly available via Internet Archive [hyperlink provided] or other online resources”.

The Appellant sought an internal review on 14 December 2024. He asked whether the response meant that Cllr Cunningham “has had no correspondence on this matter at all” and also queried how “Highways” could have determined that the alteration was unnecessary if no records were kept to support that position.

The Council provided a response to the request for an internal review on 17 December 2024, stating as follows:

“The requestor is correct that we didn’t need to respond since there was no recorded rationale. However, the requestor keeps asking about information that they have previously been informed isn’t in written form. We responded to be transparent about why a minor change was made to the website, hoping this would satisfy the requestor.

The hyperlink wasn’t related to the website’s terms and conditions. However, mentioning ‘browsewraps’ led to a website review, which found that a minor change could improve the customer experience.

We’ve provided the written correspondence that led to the small change in the website hyperlink. By omission no other correspondence influenced this minor change.

And to confirm, there is no correspondence with Cllr Cunningham on this matter”.

The Appellant wrote to the Council on 07 January 2025 requesting further clarification before he escalated the matter to the Commissioner. He stated that he did not accept that every document had been properly interrogated and searched for content regarding the change in the website as he was aware of other correspondence in his possession which had not been disclosed to him. He queried the absence of the website review documentation, a legal opinion on the change, and whether the Council was sure that it did not hold any correspondence from Cllr Cunningham. He stated that he had at least two documents in his possession that had not been disclosed pursuant to his request and said that this led to the suspicion that other non-disclosed information was in existence.

The Council responded on 28 January 2025. It informed the Appellant that the officer who was responsible for collating and responding to FOIA requests on behalf of Essex Highways was also responsible for the management and editing of the Essex Highways website. The Appellant’s correspondence on 06 February 2024 to the Insurance Claims team had been forwarded to the Highways Communication team. On reading the email, the officer reviewed the website and made the minor change to improve the customer journey. The Council stated that, as the change was only a minor amendment to the hyperlink, it had been treated as ‘business as usual’ and had not required any formal sign-off or discussion.

The Council provided two further documents to the Appellant as part of their response, stating as follows:

“Following an additional search we have discovered that a draft response was requested from Member Enquiries by the Senior Strategy Advisor for Cllr Cunningham, and the response was sent to Cabinet Assistant for Cllr Cunningham. This was in relation to your correspondence to Cllr Cunningham. Whilst it was not directly related to the correspondence that led to the change, and therefore not included in our previous response, it did provide an update about the minor amendment that had been made…..

We have also discovered an additional email from yourself to Will Quince (who at the time was the sitting Member of Parliament for Colchester) to which Cllr Cunningham was copied into, this email was sent following the minor amendment to the hyperlink and was therefore not a catalyst or related to the decision to update the website”.

Further email communications took place between the Appellant and the Council’s “Your Right to Know” team on 03 and 04 February 2025. The Council reiterated that the decision to make a “minor update” to the website had been made by the website manager without consultation, and that the change had simply been to improve the customer journey. The Appellant sought confirmation that no other department or person, save for the website manager, had had any discussions or consultations about the legal implications of his complaint at any level. In response, the Council indicated that they would raise a new request for additional queries that the Appellant had raised and, in relation to the website change, stated “No consultation was held in relation to that change either internally or externally as we have advised on numerous occasions”.

On 04 February 2025, the Appellant emailed the Council to stress that he was seeking “documentation regarding the higher-level policy implications and legal discussions surrounding this change in the website”, stating that “I cannot fathom any situation where Insurance Claims will identify an issue that requires another department to make a website change (after they have been made aware of a potentially very serious legal issue) that could be undertaken with no documentation audit-trail”.

The Council responded on the same date, reiterating again that the decision to make the change to the website was taken solely by the website manager, and indicating that they would not be responding to further emails regarding the same matter.

The Appellant sent a further email on 04 February 2025 in which he raised a series of questions about the extract of his email and it being sent to the website manager, stating that the response to those questions “may indicate where the discussions and consultation occurred that has been denied occurred, or it will identify the party that did not follow the ECC Code of Conduct”. There is no record of a response by the Council to that email.

The Appellant lodged a complaint with the Commissioner on 05 February 2025, stating that “the public body says it does not hold the information and I disagree, or I believe it holds more information than it has sent”. He went on to state the following in his complaint:

“I have been told that an audit trail to a particular decision does not exist, because such decision or any consultation never happened. I have proof that will stand up in court that the decision was indeed made (and that they used my own correspondence in that process), so ECC are obfuscating disclosing the information that I have requested.

The Your Right to Know Team do not grasp that the Service Team at ECC are not being honest about what they have done. They keep telling me that it is my opinion that ECC are not being honest, but I reminded them that an opinion with proof becomes evidence!

Despite demonstrating that the ECC Department in question is acting illegally, they have refused to speak with me on the matter any more”.

The Appellant further stated the following:

“Despite showing beyond doubt that a decision regarding a serious legal implication was made which should give rise to a documentation audit trail.

My original correspondence to another department was extracted from and the relevant parts highlighted, for the website manager to make a chance to the website to mitigate the legal issue.

I have therefore supplied proof that the matter was considered before being passed to the website manager, but ECC deny this happened as their rationale for having no documents to disclose.

It’s either a case of incompetence opening the staff up to gross misconduct charges, or a deliberate attempt to not supply incriminating evidence in breach of s.77. Neither are good looks for ECC who’s procedures need to be investigated!”.

On 02 July 2025, the Commissioner contacted the Council and asked them to detail the searches and consultations with staff that had taken place in order to respond to the Appellant’s initial request.

The Council responded to the Commissioner on the following day, stating as follows:

“Our searches for relevant information included the teams who were involved in this issue:

a.

The checking of Essex Highways’ files relevant to this request held on the Essex Highways server areas and consultation with relevant Highways staff

b.

The checking of the Insurance Team files relevant to this request held on ECC servers, including Teams / SharePoint and other service specific corporate systems and consultation with the Insurance team

c.

The checking of Member Enquiries team files relevant to this request held on ECC servers, including Teams / SharePoint and other service specific corporate systems and consultation with the member enquiries team

d.

The use of eDiscovery to capture relevant communications relevant to this request from the departments who have been involved.

Our Authority uses eDiscovery to search for relevant information for statutory requests. This reduces burden on staff and ensures that all relevant data is captured. For clarity, the change to the webpage was made by the individual in Essex Highways responsible for maintaining the webpage. Coincidentally, this Essex Highways employee is also responsible for responding to EIRs on behalf of Essex Highways and therefore had a good understanding of the issues involved. The change was made without consultation, as none was required for such a minor change. The change involved amending a hyperlink so that the telephone number was displayed at the beginning of the reporting journey. Instead of the hyperlink taking the visitor to halfway down the page it took them to the top of the page.

There was no material change to page content. For this reason there was no correspondence or other documentation in relation to the change to the webpage. We are unable to provide you a copy of our eDiscovery search as the application was updated to a new version on 10 June 2025 and we no longer have access to historic searches carried out in the old version. We had not saved a copy of the outputs to this case file. The key search terms we would have used for this particular case are:

•

Named staff mailboxes of staff who have dealt with Mr Cawthorne’s requests. One of whom manages the webpage in question

•

The relevant councillors (Cllr) mailbox”.

The Council provided the Commissioner with an eDiscovery search report relating to communications from the Appellant in a similar case to provide the Commissioner with reassurance of their methods. They confirmed that “there were no communications relating to the change to the webpage, other than correspondence from Mr Cawthorne which was provided to him. This is because there was no consultation necessary for such a minor change to a webpage”.

The Council noted that the Appellant had stated that he knew that they had not disclosed everything to him as they had not included the Appellant’s emails to the named Councillor. The Council stated that “Where a Cllr responds to constituency matters, they are not necessarily acting on behalf of ECC (as a portfolio holder) and generally use a separate email address for constituency correspondence. We had no other emails to or from the Cllrs mailbox which related to the change to the webpage”.

The Commissioner contacted the Appellant on 08 July 2025 to notify him that his case was now under investigation. On 09 July 2025 the Appellant sent a lengthy email to the Commissioner in which he stated that “I have asked for the audit trail for a change that was made to ECC’s website that fixed a negligently-constructed link between two pages, that I had previously alleged could have the effect of negating ECC's statutory defence for Highways injury and damage claims. If correct as I believe then this flawed link would affect over 8,000 claimants with a monetary value exceeding £30m”. He stated that any decision on the matter would amount to a “Key Decision” which would require proscribed analysis and reporting. He stated that someone must have read the full email that he had initially sent to the Council, cut-and-pasted an extract from his email and then sent it to the Webmaster, and that such an action would amount to a Key Decision because of the number of potential individuals who were affected by it. He queried what else was missing from the Council’s response on the basis that the response had not even included the full email that he had sent to them, and nor had it included correspondence that he had with his MP.

The Decision Notice was issued on 31 July 2025.

The Commissioner’s decision was that the Council had correctly withheld some information under section 40(1)(personal data of the applicant) and section 40(2)(personal data of third parties) of the FOIA and had otherwise disclosed all held information.

The Commissioner was satisfied that the Appellant’s email address and complaint reference were his personal data, and therefore the Council had been entitled to rely on section 40(1) of the FOIA to refuse to provide that information.

The Commissioner was satisfied that the identity of a Council officer to whom the disclosed email was addressed represented personal data and that disclosure by the Council would not be lawful. The Commissioner therefore concluded that the Council had been entitled to rely on section 40(2) of the FOIA to refuse to provide that information.

In determining whether any further information was held by the Council, the Commissioner confirmed that he applied the civil standard of the balance of probabilities – in other words, he had to decide whether, on the balance of probabilities, the Council held any additional information that fell within the scope of the request at the time of the request.

The Commissioner states that he considered the searches for recorded information that were undertaken by the Council. He concluded that he was satisfied that the searches were undertaken in the appropriate file locations and using relevant search terms. He also noted that he would only expect a public authority to hold recorded information if it considered there to have been a business reason to create it in the first place.

The Commissioner held that, whilst the request asked for cached copies of webpages, the Council was not required to collate that information from internet search engines in order to disclose it. The Commissioner also held that any correspondence that had taken place between the Appellant and a councillor was not held by the Council for the purposes of the FOIA.

The Commissioner concluded that there was no evidence available to him to suggest that any further recorded information was held by the Council, save for that which had already been disclosed. The Commissioner was therefore satisfied, on the balance of probabilities, that the Council had provided all held information.

The Appellant lodged his appeal on 18 August 2025, asserting that the civil balance of probabilities test had not been correctly applied. He requested the full documentation trail and Cllr Cunningham’s full correspondence in relation to the decision to change the webpage and, if such documents did not exist, then an accurate explanation as to why they did not so exist.

The Appellant outlined seven reasons for his belief that the balance of probabilities test had been incorrectly applied, namely:

The Appellant stated “Again on the balance of probabilities as I was correct about other disclosable documentation not being correctly disclosed in the first instance that was then supplied at Internal Review, then I am likely to be correct that even at Internal Review not everything has yet been disclosed! I still hold correspondence that has not been disclosed on the matter, so I know more exists!”.

The Appellant asserted that there was, in fact, a business reason for the Council to create the requested information in the first place – namely to request another department to change a webpage, to rebut a serious allegation regarding the £30m+ liability, and to extract the rationale from an extensive email chain to facilitate the change to the webpage.

The Appellant stated that the Council’s response to a previous FOIA request had included a link to a different cached webpage, and so that information was held by the Council.

The Appellant stated that, if the requested documents did not exist, then the only reasons for that position that he could conceive of were (i) there had been a dishonest deletion of the documents; (ii) there had been incompetence in the failure to recognise the importance of such documents and for retention of the notes and analysis created to determine their seriousness; or (iii) there had been criminality regarding the making of Key Decisions outside of the legislative framework for such decisions.

The Appellant concluded his grounds by stating “I believe on the balance of probabilities (and because I hold some of the documents that fit the request’s remit and were not disclosed) that not all the requested information held by ECC has been disclosed”.

The Appellant attached a number of documents to his Grounds of Appeal, namely copies of previous FOIA requests, copies of emails with Councillor Cunningham, emails between himself and the Council’s Insurance Claims Department, and his complaint to the Council’s Complaints and Compliance team.

The Commissioner lodged his response to the appeal on 19 September 2025, focusing on whether, on the balance of probabilities, the Council did or did not hold information further to that which had been disclosed within the scope of the request. The Commissioner noted that he was entitled to accept the word of the public authority and not to investigate further in circumstances where there was no evidence as to an inadequate search, any reluctance to carry out a proper search, or a motive to withhold information of which they were in possession (Oates v IC and Architects Registration Board EA/2011/0138).

The Commissioner resisted the appeal, relying on his findings and reasons as set out in the Decision Notice. He maintained that he was correct in determining that the Council’s searches, as demonstrated by the Council during the investigation, were sufficient. He determined that the searches had been undertaken in the appropriate file locations and using relevant search terms.

The Commissioner noted that the Appellant’s view was that the only explanation for the information not being held was incompetence or criminality. The Commissioner found no indication that the Council sought to mislead or withhold information and concluded that it had been entirely correct for him to rely on the Council’s submissions when determining whether further information was held.

Whilst the Commissioner noted that the Appellant was of the view that the change to the website was of significant importance, the Commissioner accepted that the Council did not consider that to be the case. He accepted that it was reasonable that the Council would not retain information about a change that it considered to be insignificant.

The FOIA only applied to recorded information held by the Council and did not require more speculation as to why more information was not created, or consideration of whether more information should have been held.

The Appellant had not provided any new evidence which would suggest, on the balance of probabilities, that additional information within the scope of the request was held by the Council. The Commissioner found that he was entitled to accept the word of the Council given the adequacy of the searches conducted and the lack of any credible indication that the Council sought to mislead the Commissioner. As such, the Commissioner maintained his conclusion that, on the balance of probabilities, the Council did not hold information within the scope of the request save for that which had been disclosed. He therefore invited the Tribunal to dismiss the appeal and uphold the Decision Notice.

The Appellant did not submit a Reply to the Commissioner’s Response. However, he did make oral submissions during the hearing on 25 June 2026.

In essence, the submissions relevant to the subject of the appeal were:

In response to questions, the Appellant confirmed that it was not his case that the Council should have searched for the information in additional places, but that the searches that took place were not adequate. He also reiterated that they had been conducted by someone who had a conflict of interest.

The Appellant was also asked about an email that had been sent by Will Quince MP to him on 18 March 2024, in which he indicated that Cllr Cunningham stated that he had been advised that he should not communicate with him further due to ongoing legal proceedings. The Appellant’s case was that that email, which was in his possession, should have been provided by the Council in their response as it fell within the second part of his request.

The Appellant concluded by reiterating that the change to the webpage was not just a minor day-to-day issue but was in fact a Key Decision and should have been treated as such.

The relevant provisions of FOIA are as follows:

Sections 45 and 46 of FOIA direct the Secretary of State to issue Codes of Practice providing guidance to public authorities as to desirable practices in connection with the discharge of their functions under Part 1 of FOIA, and in connection with the keeping, management and destruction of their records.

Paragraph 1.12 of the Code of Practice issued pursuant to section 45 of FOIA states that:

“Public authorities need to search for requested information in order to communicate to the applicant whether the information they are seeking is held or not held by that public authority. These searches should be conducted in a reasonable and intelligent way based on an understanding of how the public authority manages its records. Public authorities should concentrate their efforts on areas most likely to hold the requested information. If a reasonable search in the areas most likely to hold the requested information does not reveal the information sought, the public authority may consider that on the balance of probabilities the information is not held”.

Whether a public authority holds material is a question of fact to be determined on the balance of probabilities (Linda Bromley v the Information Commissioner and the Environment Agency (EA/2006/0072; 31 August 2007, as approved in Andrew Preston v the Information Commissioner and the Chief Constable of West Yorkshire Police [2022] UKUT 344 (AAC)). The First-tier Tribunal held that in determining a dispute as to whether information is ‘held’ that:

“There can seldom be absolute certainty that information relevant to a request does not remain undiscovered somewhere within a public authority's records. This is particularly the case with a large national organisation like the Environment Agency, whose records are inevitably spread across a number of departments in different locations.  The Environment Agency properly conceded that it could not be certain that it holds no more information. However, it argued (and was supported in the argument by the Information Commissioner) that the test to be applied was not certainty but the balance of probabilities. This is the normal standard of proof and clearly applies to Appeals before this Tribunal in which the Information Commissioner's findings of fact are reviewed. We think that its application requires us to consider a number of factors including the quality of the public authority's initial analysis of the request, the scope of the search that it decided to make on the basis of that analysis and the rigour and efficiency with which the search was then conducted. Other matters may affect our assessment at each stage, including, for example, the discovery of materials elsewhere whose existence or content point to the existence of further information within the public authority which had not been brought to light. Our task is to decide, on the basis of our review of all of these factors, whether the public authority is likely to be holding relevant information beyond that which has already been disclosed”.

The Upper Tribunal in Andrew Preston v the Information Commissioner and the Chief Constable of West Yorkshire Police also noted that, importantly, in Councillor Jeremy Clyne v the Information Commissioner and London Borough of Lambeth (EA/2011/0190) the Tribunal held that the “issue for the Tribunal is not what should have been recorded and retained but what was recorded and retained”.

In Garrard v IC and the Home Office (EA/2009/0107), the First-tier Tribunal noted that:

“Where the critical issue is whether information is held, it is incumbent on the IC to analyse very carefully the searches the public authority report that they have undertaken…..It is only where no such issues arise that the IC should rely upon the assertion of the public authority that the search taken was adequate”.

In Oates v IC and Architects Registration Board (EA/2011/0138) the First-tier Tribunal held that:

“As a general principle, the IC was, in the Tribunal’s view, entitled to accept the word of the public authority and not to investigate further in circumstances where there was no evidence as to an inadequate search, any reluctance to carry out a proper search or as to a motive to withhold information actually in its possession. Were this to be otherwise the IC, with its limited resources and its national remit, would be required to carry out a full scale investigation, possibly onsite, in every case in which a public authority is simply not believed by a requester”.

The Tribunal’s remit is governed by section 58 of 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 an exercise of his discretion, whether he ought to 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 whether the Commissioner was correct in holding, on the balance of probabilities, that the Council did not hold any relevant information within the scope of the request, save for that which was disclosed, at the time that the request was made.

We read and took account of an open bundle containing 176 pages including indexes. We also heard oral submissions on behalf of the Appellant which we have taken into account.

As outlined above, the sole substantive issue for the Tribunal to determine is whether the Commissioner was correct in finding that it was more likely than not that the Council did not hold any further relevant information within the scope of the request at the time that the request was made.

In assessing this question, we have had regard to paragraph 1.12 of the Code of Practice issued pursuant to section 45 of FOIA which, whilst not binding, is instructive of the approach that a public authority may follow when conducting a search, namely:

The Appellant did not assert that the Council had searched inappropriate file locations or that the Council should have searched in additional locations. The Appellant also accepted when questioned that the relevant search terms had been used. Whilst the Appellant did question the effectiveness of the searches that had been conducted, he did not dispute the account given by the Council as to the factual nature of the searches that had been conducted.

On the basis of the information provided by the Council, the Tribunal is satisfied that the searches were conducted in a reasonable and intelligent way, and that they concentrated on the areas which were deemed most likely to hold the requested information.

The Appellant has asserted that the representative of the Council who collated the information in response to his request may have had a motive not to disclose information if to do so may show a failing on their part. He also asserted that the only reasons for the information not being held by the Council were incompetence or criminality. However, the Tribunal finds no basis on which to disagree with the conclusion of the Commissioner that there is no indication that the Council has sought to mislead or withhold information in this case.

The Tribunal recognises that the Appellant’s position is that the change to the webpage was a significant one such to amount to a Key Decision, but we also recognise that the Council did not consider this to be the case – a position that they have repeated on multiple occasions since the initial request. We therefore agree with the Commissioner’s conclusion that it was reasonable that the Council would not retain information about a change that was made that it considered to be insignificant.

We note that much of the Appellant’s submissions focused on information that he stated that the Council “must” have held, such as communications between two of the Council’s teams, details of the website review, and communications with Cllr Cunningham. Whilst we understand the rationale behind the Appellant’s submissions, we have reminded ourselves that our focus must be on whether the Council did hold any additional material, not whether they may or should have held any additional material.

We have considered the Appellant’s submission that he holds information which falls within the scope of his request but which was not provided to him by the Council in response to the request. Having reviewed the material, we are satisfied that some of the information is the Appellant’s personal data which the Council was permitted to withhold under section 40(1) of the FOIA, while other information relied on by the Appellant is not focused on or related to the rationale behind the change to the Council’s website and correspondence relating to that change. We also note that any information held by a local Councillor when performing their function as an elected member is not held by the Council for the purposes of FOIA.

The Tribunal is satisfied that the Commissioner was correct to conclude, on the balance of probabilities, that the Council did not hold further information that would fall within the scope of the request at the relevant time.

The Tribunal dismisses the appeal for the reasons given above.