Hebden Royd Town Council v The Information Commissioner & Anor

In this Decision the following terms have the following meanings:

All references in this decision to a section of an Act are to FOIA.

This is an appeal against the decision of the Commissioner as set out in the Decision Notice.

The Tribunal received and considered a bundle of documents, and the Appellant and the Second Respondent attended an oral hearing by Cloud Video Platform. The Commissioner does not routinely attend appeal hearings.

By rule 36 of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009, a hearing can proceed in the absence of a party if the Tribunal is satisfied that the party had notice of the hearing and that it is in the interests of justice to proceed.

The Tribunal is satisfied that these requirements were met in this case, and that this was a fair and just way to decide the Appeal.

The Council owns and operates a cinema known as the Picture House. Decisions regarding the operation of the Picture House are taken on behalf of the Council by the Picture House Committee. The Second Respondent, Councillor Boden, is a member of the Council and was a member of the Picture House Committee. Councillor Boden ceased to be a member of that Committee on 13 November 2024.

On 8 December 2024 Councillor Boden made the Request to the Council, which was in the following terms:

On 13 January 2025 the Council responded, refusing the Request on the basis that it was vexatious.

On 16 January 2025 Councillor Boden replied to the Council by email, requesting its reasoning for its refusal, and saying that, if there was no such an analysis as was referred to in the Request, then the Council should simply say this.

The Council treated Councillor Boden's email of 16 January 2025 as a request for an internal review. The Council conducted that review and replied on 5 February 2025, upholding its initial refusal.

Councillor Boden complained to the Commissioner. The Commissioner carried out an investigation, in the course of which the Council's position changed, with the Council stating that it did not hold the Requested Information, and withdrawing its reliance on vexatiousness.

The Commissioner issued the Decision Notice on 16 September 2025. The Commissioner considered that the Council did hold the Requested Information, on the basis that it held the building blocks of the relevant financial analysis, and that he was not convinced that the process of analysis required the exercise of skill and judgment. The Commissioner ordered the Council to disclose the Requested Information.

The Council appealed to the Tribunal.

In its appeal the Council argues, in different ways, that providing the requested analysis would require more than just the disclosure of raw data held by the Council, and would require the creation of new information.

Having considered the Council’s appeal notice and related documents, the Commissioner considers that on the balance of probabilities the Council does not hold the Requested Information. Accordingly, the Commissioner does not oppose the appeal and invites the Tribunal to allow it.

Councillor Boden submits that the Council has misinterpreted what she requested, and that it does hold the necessary information to fulfil the Request.

Councillor Boden also considers that the Council failed to comply with its duty under section 16 to provide her with advice and assistance by clarifying the Request.

Section 1(1) FOIA provides as follows:

General right of access to information held by public authorities.

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

Section 16 FOIA provides that:

Duty to provide advice and assistance

It shall be the duty of a public authority to provide advice and assistance, so far as it would be reasonable to expect the authority to do so, to persons who propose to make, or have made, requests for information to it.

Any public authority which, in relation to the provision of advice or assistance in any case, conforms with the code of practice under section 45 is to be taken to comply with the duty imposed by subsection (1) in relation to that case.

A public authority is not required to create new information to satisfy a request.

At the hearing, Ms Green explained the context for the 2023 market test referred to in the Request.

She said that the Picture House has one screen, which makes it difficult to show new films on the day of release, because cinemas are ordinarily required to show newly released films continuously over several days or weeks.

The Council was at the relevant time considering adding a second screen to the Picture House, and undertook a pilot project showing newly released films to determine whether this would increase revenue. The Council has traditionally tried to balance revenue raising through the Picture House with the showing of a wide range of films for the benefit of the community.

Ms Green and Councillor Boden agreed that, when the market test was planned, there was no particular format or output agreed for a financial analysis to be conducted afterwards. Although the intention was to see whether showing new films would increase revenue, there was no detailed plan for how this would be determined.

In its evidence, the Council disclosed some data relating to showings of films at the Picture House, including film names, attendance and sales figures for individual films. This information did not identify which films were shown as “trial titles”, and the Tribunal does not consider that this data on its own could be used to determine whether showing particular films increased revenue (although it does show that some films produced more revenue than others in terms of gross tickets sales).

The Council submits that producing the requested analysis “would require: identifying trial titles (not separately recorded in the system); extracting and collating multiple years of data; selecting comparators and metrics of “impact”, normalising results and drafting a narrative report. These steps require judgement, evaluation, and the creation of new information, rather than simple retrieval of existing records.”

Councillor Boden objects to this characterisation of the Request. She says that this is not what she requested, and that the Council has not sought any explanation of the Request, which she submits it was required to do by s16.

Central to this appeal is the question of what was the “financial analysis” which Councillor Boden requested. The Tribunal notes that the Picture House Committee, of which Councillor Boden was a member until shortly before submitting the Request, did not determine a particular analysis which was to be carried out, although it is commonly understood between the Council and Councillor Boden that the intention of the pilot project was to see whether showing new films would increase revenue.

The terms of the Request clearly seek the product of the interpretation of data – an analysis. The Tribunal finds that, as the intended product is a conclusion on whether the showing of particular films had an effect on revenue, this would require more than simple mechanical calculations based on specific data. It would require an assessment of the overall financial impact of showing new films, which could be subject to extraneous factors and influenced by the professional opinion of those carrying it out.

The Council’s position is that no analysis of any kind has been carried out, and Councillor Boden provides no evidence to the contrary. The Tribunal finds that no analysis has been carried out; and, accordingly, the form of any such analysis is immaterial to the question whether or not the Council holds the Requested Information. No analysis has been carried out, so there is no analysis to disclose.

The Tribunal has considered whether the Council was obliged by s16 to seek to clarify the Request. The s16 duty is, so far as relevant, to provide reasonable advice and assistance to requesters. The Code of Practice issued under s45, and referred to in s16, envisages clarification of requests where this is necessary in order to establish whether a valid request has been made, or in order to obtain an adequate description of the information requested.

The Tribunal does not consider that it would be reasonable to require the Council to seek any clarification in this case. The Tribunal considers that the Request should be read objectively, and, when doing so, considers that there was no reasonable need for clarification. The Request was clear and unambiguous as to its scope, and the Council did not in fact hold any information meeting its description – so it was not the case that the Council held information which might or might not be within the scope of the Request depending on how it was understood.

Accordingly, the Tribunal finds that the Council did not hold the Requested Information, and further that it did not fail to comply with its duty under section 16.

Having found that the Council does not hold the Requested Information, the Tribunal finds that the Decision Notice was based on an error of law, and accordingly allows the appeal.