Case Reference: FT/EA/2025/0180
Information Rights
Decided without a hearing
Before
JUDGE STEPHEN ROPER
MEMBER AIMÉE GASSTON
MEMBER MIRIAM SCOTT
Between
PETER MARSHALL
Appellant
and
THE INFORMATION COMMISSIONER
Respondent
Decision: The appeal is Allowed
Substituted Decision Notice:
The Tribunal’s Decision Notice in case reference FT/EA/2025/0180, set out below, is substituted for the Information Commissioner’s Decision Notice reference IC-338046-P4P2, dated 16 April 2025, with regard to the request for information made to Westminster City Council by Peter Marshall dated 23 May 2024.
Substituted Decision Notice
1. Westminster City Council (the “Council”) must make a fresh response, pursuant to the Environmental Information Regulations 2004 (the “Regulations”), to the request for information made to it by Peter Marshall dated 23 May 2024 (the Request”).
2. Subject to paragraph 3 below, the fresh response must:
a. specify what further searches were undertaken, including details of what systems and records were searched and what key words were used as search terms in respect of any searches for information which is held electronically;
b. specify what other enquiries (if any) were made to identify whether further information is held within the scope of the Request, including (if applicable) which staff members and/or departments were contacted and the relevance of such enquiries;
c. make clear whether or not any further information (beyond that already disclosed) is held within the scope of the Request; and
d. disclose any such further information if it is held, or claim any relevant exemptions to disclosure pursuant to the Regulations.
3. The Council is not obliged to respond in accordance with paragraph 2 above if and to the extent that the duty to confirm or deny does not arise in accordance with any applicable provision of the Regulations. However, if the duty to confirm or deny does not arise then the Council must cite the applicable exemption and its reasons in its fresh response.
4. The Council must issue the fresh response within 35 days of this decision being sent to it pursuant to the directions below, or (if there is an application to appeal this decision) within 28 days after being notified of an unsuccessful outcome to such application or any resulting appeal.
5. The fresh response (and any applicable disclosure of further information pursuant to paragraph 2 above) will be subject to the rights given under section 50 of the Freedom of Information Act 2000 (as applied by regulation 18 of the Regulations) to make a new complaint to the Information Commissioner.
6. The Council breached regulation 14(2) of the Regulations by failing to issue a refusal notice within 20 working days following the date of receipt of the Request.
7. The Council breached regulation 11(4) of the Regulations by failing to issue an outcome to its internal review within 40 working days following the date of receipt of the request for the internal review.
8. No steps are required to be taken by the Council in respect of the above breaches.
9. Failure to comply with this decision may result in the Tribunal making written certification of this fact pursuant to section 61 of the Freedom of Information Act 2000 2000 (as applied by regulation 18 of the Regulations) and may be dealt with as a contempt of court.
Directions
The Information Commissioner is directed to send a copy of this decision (and the accompanying closed annex) to Westminster City Council within 14 days of its promulgation.
REASONS
Preliminary matters
In this decision, we use the following terms to denote the meanings shown:
Appellant: | Peter Marshall. |
Application: | As defined in paragraph 45. |
Building: | The building which was specified in the Request (which has been redacted for the purposes of this decision). |
Closed Annex: | The closed annex to this decision (see paragraph 4). |
Commissioner: | The Information Commissioner (the Respondent). |
Complaint: | The Appellant’s complaint to the Commissioner in respect of the Council’s response to the Request. |
Council: | Westminster City Council. |
Decision Notice: | The Decision Notice of the Commissioner dated 16 April 2025, reference IC-338046-P4P2, relating to the Request. |
EIRs: | The Environmental Information Regulations 2004. |
FOIA: | |
Request: | The request for information made to the Council by the Appellant dated 23 May 2024, as set out in paragraph 7. |
Search Words: | The search words defined in the Closed Annex. |
Unless the context otherwise requires (or as otherwise expressly stated), references in this decision:
to numbered paragraphs are references to paragraphs of this decision so numbered;
to a regulation are references to the applicable regulation of the EIRs;
to a section are references to the applicable section of FOIA; and
to the Commissioner’s “investigation” mean the Commissioner’s investigation of the Complaint, for the purposes of section 50 (as applied pursuant to regulation 18).
Nothing we say in this decision should be taken as an indication as to whether or not any further information within the scope of the Request is held by the Council.
There is a closed annex to this decision. The closed annex, in referring to the Search Terms, identifies the Building (where the Appellant is resident) and accordingly it is appropriate that this is not published as part of this decision. However, the closed annex is to be provided to both parties to the appeal.
Introduction
This was an appeal against the Decision Notice, which concluded that (on the balance of probabilities) the Council does not hold any further information within the scope of the Request.
Background to the Appeal
The background to the appeal is as follows.
The Request
On 23 May 2024, the Appellant contacted the Council via email with the following request for information (original sub-headings, with emphasis, retained):
“Background
In or about the late 1990s as part of an estate wide regeneration programme (supported in part by Government funding) external cladding was installed at (inter-alia) [name of building redacted].
Recent activity
As a result of the failure to maintain the undercroft at the said building the gas supply was withdrawn on 20 April 2024 following the detection of a gas leak. The works to install a new communal heating and hot water system have required the removal of some of the cladding. Operatives were provided with specialist protective breathing equipment. However, my property and I have been exposed to significant amounts of debris and very fine dust particles.
Please be kind enough to provide the following:
1. Full details of the nature and content of the material used in each of the various layers comprising the cladding;
2. Documentary evidence in support of each answer given to 1. above.”
The Council contacted the Appellant on 16 July 2024, providing some information in response to the Request. The Council cited the EIRs in its response, therefore the Council’s position was that the EIRs applied in respect of the Request.
The Appellant contacted the Council by email on 19 July 2024, stating that the Council’s response did not answer his questions raised in the Request.
The Appellant (having not received a response to his request to his email dated 19 July 2024) complained to the Commissioner on 7 October 2024 about the Appellant’s response to the Request.
On 21 October 2024, the Council provided the Appellant with the outcome of its internal review (pursuant to the Appellant’s email dated 19 July 2024). The Council clarified some of the information which it had provided in response to the Request but upheld its position that all of the Requested Information which it held had been provided to the Appellant.
Following receipt of the Council’s internal review response, the Appellant contacted the Commissioner again on 12 February 2025, confirming that he remained dissatisfied with the Council’s response to the Request.
The Commissioner subsequently issued the Decision Notice.
The Decision Notice
The Commissioner considered that the scope of his investigation was to determine whether the Council holds any further recorded information within the scope of the Request.
The Commissioner issued the Decision Notice pursuant to FOIA (rather than treating the Request as subject to the EIRs, in contrast to the Council).
In summary, the Decision Notice recorded that:
the Commissioner accepted the Council’s explanation that the correct departments within the Council were consulted at the time of the Request and that the searches undertaken by it would have identified all the Requested Information which it held at the time of the Request;
the Commissioner recognised that the Council responded to the Appellant’s question and confirmed in the outcome of its internal review that it had provided a full response to the Request and that no further information was held by it; and
the Commissioner therefore considered that (on the balance of probabilities) the Council does not hold any further information relevant to the Request.
The Commissioner accordingly determined in the Decision Notice that the Council had complied with section 1(1). The Decision Notice recorded the Commissioner’s view that he could not consider the accuracy of the information provided by the Council. The Decision Notice did not require the Council to take any steps.
The Decision Notice also recorded the Commissioner’s views that:
whilst there was no obligation under FOIA for a public authority to provide an internal review, it is good practice to do so;
where a public authority chooses to offer an internal review, the code of practice established under section 45 sets out, in general terms, the procedure that should be followed and states that internal reviews should be conducted promptly and within reasonable timescales (which the Commissioner interpreted as meaning that they should take no longer than 20 working days in most cases, or 40 working days in exceptional circumstances); and
in this case, as the Appellant had requested an internal review on 19 July 2024 and the Council did not provide the outcome of its internal review until 21 October 2024, the Council had not acted in accordance with the code of practice established under section 45).
The appeal
Regulation 18 provides that the enforcement and appeals provisions of FOIA (namely Part IV, including Schedule 3, of FOIA and Part V of FOIA) apply for the purposes of the EIRs, subject to certain modifications.
For the reasons we have given below, this was an appeal against the Decision Notice pursuant to the EIRs, in accordance with section 57 as applied by regulation 18.
The grounds of appeal
The Appellant’s position was, in essence, that the Commissioner erred in concluding in the Decision Notice that no further information was held by the Council within the scope of the Request.
The Appellant argued that the Requested Information is held by the Council, or by a third party, based on his contention that cladding had been installed under a wider regeneration scheme. His grounds of appeal stated:
“The appellant asserts the Decision Notice is wrong because the third-party installed external cladding/insulation under an estate-wide regeneration scheme. He therefore asserts it either holds the records in-house or alternatively these are held on its behalf by the project architect Stanford Eatwell. In either case information is held.”.
The Tribunal’s powers and role
The powers of the Tribunal in determining the appeal are set out in section 58 (as applied by regulation 18), 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 the 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).
Mode of hearing
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 evidence and submissions
The Tribunal read and took account of an open bundle of evidence and pleadings.
All of the contents of the bundle, including all the submissions of the parties, were read and taken into account, even if not directly referred to in this decision.
The relevant statutory framework (Footnote: 1)
General principles
The EIRs provide individuals with a general right of access to environmental information held by public authorities, subject to some exceptions. Regulation 5(1) provides:
“…a public authority that holds environmental information shall make it available on request.”.
The term ‘environmental information’ is defined in regulation 2(1) which, so far as is material, states:
“…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…”.
The definition of ‘environmental information’ is to be given a broad meaning in accordance with the purpose of the underlying European Council Directive which the EIRs implement (Direction 2004/4/EC). (Footnote: 2)
Therefore, pursuant to regulation 5(1), a person who has made a request to a public authority for ‘environmental information’ is entitled to have that information made available to them, if it is held by the public authority. However, that entitlement is subject to the other provisions of the EIRs, including some exceptions and qualifications which may apply even if the requested environmental information is held by the public authority.
Requests for ‘environmental information’ are normally dealt with under the EIRs rather than FOIA, pursuant to section 39(1) (which contains an exemption to disclosure of environmental information under FOIA).
Discussion and findings
Application of the EIRs
We start by addressing whether the EIRs applied to the Request. This is because it is important to ensure that the correct regime (FOIA or the EIRs) is identified for the purposes of our decision.
As we have noted, the Council responded to the Request by reference to the EIRs (rather than FOIA) but the Commissioner issued the Decision Notice under FOIA. The Commissioner did not address, in the Decision Notice or his response to the appeal, why he considered FOIA to apply in respect of the Request.
We find that that the Request sought ‘environmental information’ for the purposes of the definition of ‘environmental information’ in regulation 2(1). This is because the Requested Information fundamentally relates to information regarding the nature and content of alleged cladding materials for the Building (cladding being a measure which, amongst other things, is typically used for energy efficiency and to reduce carbon emissions), and the Request referred to “debris and dust particles” relating to such alleged cladding materials.
We therefore consider that the Requested Information relates to: (i) factors such as waste, discharges and other releases affecting or likely to affect the elements of the environment; and/or (ii) measures or activities designed to protect the elements of the environment (in each case, as referred to in regulation 2(1), set out in paragraph 30). Also, as we noted in paragraph 31, the definition of ‘environmental information’ is to be given a broad meaning.
Consequently, we find that the EIRs apply to the Request. We also therefore find that the Commissioner erred in issuing the Decision Notice under, and in treating the Request as being subject to, FOIA.
For convenience, we use the term “information” below to refer (where the context permits) to environmental information within the scope of the EIRs.
Whether the Council had disclosed all of the information within the scope of the Request
In his response to the appeal, the Commissioner generally relied on the Decision Notice as setting out his findings and the reasons for those findings, but we refer below to other relevant points set out in his response.
We should note that, notwithstanding regulation 5(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 regulation. The Decision Notice referred to the Commissioner reaching his conclusion “on the balance of probabilities”. The ‘balance of probabilities’ is the correct legal test to be applied - in simple terms, this means that something is more likely than not to be the case. 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.
In its response to the Request dated 16 July 2024, the Council provided (amongst other things) the following information in respect of the Building:
“Concrete slab and post construction with a cavity brick / block external wall with concrete / stucco render finish.
Records indicate that the external wall construction is cavity brick/block with a concrete render / stucco finish and as such we do not hold an EWS1 [External Fire Wall Review].
Please note that we do not have EWS1 on file as this block does not appear to have cladding panels. Westminster City Council are in the process of commissioning PAS9980 External Wall Surveys across all our high rise stock. This will supplement existing condition and stock information”.
The Council’s position was therefore that the Building did not appear to have any cladding panels. As recorded in paragraph 12 of the Decision Notice, the Appellant considered that the Council had provided incomplete or inaccurate information in response to the Request, asserting that external cladding or insulation was added to the Building in 1999/2000.
Paragraph 12 of the Decision Notice also recorded that:
the Appellant had referred to a ‘KBI’ survey document which included the following statement: “Outside Walls insulation type none”; and
the Appellant considered that statement to be incorrect, on the basis that external cladding was installed on the Building as part of an estate-wide regeneration scheme carried out from 1997 onwards.
In his correspondence with the Commissioner relating to the Complaint, the Appellant also asserted that the Council had filed a high-rise buildings registration application with the Health and Safety Executive in September 2023 (the “Application”), which gave the erroneous impression that there is no cladding on the Building.
The Commissioner correctly stated, in the Decision Notice and in his response to the appeal, that (in essence) the right of access under FOIA and the EIRs to information held by public authorities is distinct from the question of accuracy or completeness of information which may be held. We agree with the Commissioner that it was not his remit, in respect of the Complaint (and therefore in issuing the Decision Notice), to assess the completeness or accuracy of information disclosed by the Council or to consider any applicable allegations of maladministration or misconduct relating to the Council.
In his grounds of appeal, the Appellant contended that there was a conflict between the Council’s statements referred to in paragraphs 11 and 16 of the Decision Notice. The former related to the Council’s response to the Request dated 16 July 2024 (noted above in paragraph 42). The latter recorded the Council’s denial of the Appellant’s assertion that it “does not appear to have any record of the cladding” and the Council’s position that it had provided the Appellant with several items of information it holds in relation to the materials used, in accordance with the scope of the Request. Paragraph 16 of the Decision Notice went on to state:
“The Council has provided the following information in written responses to the complainant along with a copy of the KBI summary of information which the Council is required to provide to the Building Safety Regulator:
“’concrete / stucco render finish’ (council’s response)
‘Structure Type Concrete large panel system - 1970 onwards’ (KBI summary)
‘External wall materials Metal panels Render Glass’ (KBI summary)
‘Percentage coverage Metal panels: 6% Render: 60% Glass: 34%’ (KBI summary)”.”
The Appellant argued, essentially, that the Council’s denial of his assertion that the Council did not appear to have any record of the cladding did not make sense, when contrasted with its stated position in its response to the Request dated 16 July 2024 (which, as we have noted, recorded the Council’s position that the Building did not appear to have any cladding panels).
In his response to the appeal, the Commissioner submitted that, in reaching his conclusions in the Decision Notice, he was entitled to rely upon the representations made by the Council, where there was no evidence of an attempt to mislead the Commissioner, or of a motive to withhold information actually in its possession.
We accept that as a general premise. However, it was nevertheless incumbent on the Commissioner to consider the nature and extent of the searches which the Council stated that it had undertaken for the Requested Information, in order for the Commissioner properly to reach his conclusion in the Decision Notice that (on the balance of probabilities) the Council does not hold any further information relevant to the Request.
During the Commissioner’s investigation, the Council stated that, in looking for the Requested Information, its officers searched Microsoft SharePoint, as this was their “data platform”, with the “focus being upon” the Search Words. The Council went on to state that this “would have established all data available on this block and key information pertaining to the request made”.
During his investigation, the Commissioner informed the Council about the Appellant’s view that the Building’s cladding was installed in 1999/2000. However, as noted above, the Council stated only that searches had been made of data held in Microsoft SharePoint. We understand that Microsoft SharePoint was first introduced in 2001. The Council did not provide any explanation as to whether (or, if so, when) data held by it in any capacity prior to the introduction of Microsoft SharePoint was migrated to the Microsoft SharePoint platform.
Consequently, we consider that the potential for any Requested Information to be stored elsewhere was not adequately considered by the Council, or by the Commissioner in reaching his conclusions in the Decision Notice. Likewise, the Council also did not refer to any searches being conducted for data which may be held in emails, Microsoft Word or even any potential hard copies of documents.
There was also no clear explanation from the Council as to what it meant in stating that the “focus” had been upon the Search Words. In particular, no explanation was given as to whether other search terms were used (and, if so, what they were). Further, whilst the Council stated that searching Microsoft SharePoint using the Search Words would have established “key information pertaining to the request”, it is not clear what the Council considered was “key information”, as opposed to all information within the scope of the Request.
Also, whilst the Council stated that officers in the relevant ‘Teams in Housing’ (and in particular, ‘Asset Strategy’) were consulted, on the basis that they were best placed to know what records are held, where located and how to retrieve them, the Council did not state what the “relevant teams” in Housing were. They also did not state why those teams were the ones best placed to know where the relevant records were kept and why other teams (including in other departments of the Council) would not hold any information relevant to the Request. The Council also provided no explanation as to why the teams in question considered that only Microsoft SharePoint would hold information relevant to the Request, linked to our comments above.
Moreover, there was no specific material before us refuting the Appellant’s assertion in his grounds of appeal that the Requested Information could be held by the project architect Stanford Eatwell.
An additional point relates to the Application referring to the Building having an insulation layer below the roof structure. The Council stated (correctly) to the Commissioner during his investigation that the information regarding the roof insulation was outside of the scope of the Request. However, the Council also stated that the assessment of the roof had been made “purely via a visual survey” carried out by Building Safety Team when the Building was registered with the Building Safety Regulator.
In our view, the fact that the Council stated that such a visual survey had been undertaken raises the question as to whether a record was held to that effect (in order for the Council to be able to make that statement). This point was not elaborated on by the Council, so there was no explanation as to how the Council was able to make that statement and whether or not the Council would hold records relating to such visual survey. Given that the Appellant had contended (as the Council was aware) that the Building’s pitched roof (referred to in the Application) was installed at the same time as the external cladding, any such records could be relevant to whether or not further information was held within the scope of the Request.
Given the various points we have referred to, we consider that the Commissioner should not have accepted the Council’s assertion that the searches it stated had been made “would have established all data available on this block and key information pertaining to the request made”.
For all of the above reasons, we therefore find that the Commissioner was wrong to conclude, in the Decision Notice, that the Council did not (on the balance of probabilities) hold any further information within the scope of the Request.
Other matters – regulation 14(2) and regulation 11(4)
As we have noted:
the Request was dated 23 May 2024; and
the Council only responded to the Request on 16 July 2024;
the Appellant contacted the Council on 19 July 2024, stating that the Council’s response to the Request did not answer his questions raised in the Request (which we find constituted a request for an internal review);
the Council only provided the outcome of its internal review on 21 October 2024;
the Commissioner set out his views in the Decision Notice regarding internal reviews under FOIA;
the EIRs applied to the Request.
Regulation14(2) places a duty on a public authority to issue a refusal notice explaining why it has refused a request for information no later than 20 working days after the date of receipt of the request for information.
Pursuant to regulation 11(4), where a valid request for an internal review has been made, a public authority must notify the requestor of the outcome of its internal review no later than 40 working days after the date of receipt of the internal review request.
Given the Council’s delay in responding to the Request and in providing the outcome of its internal review, we find that the Council breached regulation 14(2) and regulation 11(4).
Final conclusions
For all of the reasons we have given, we find that the Decision Notice involved an error of law in concluding that the Council did not (on the balance of probabilities) hold any further information within the scope of the Request.
We also find that the Decision Notice involved an error of law in concluding that FOIA (rather than the EIRs) applied to the Request and in not recognising that the Council breached regulation 14(2) and regulation 11(4).
We therefore allow the appeal and we make the Substituted Decision Notice as set out above.
Signed: Stephen Roper Date: 19 June 2026
Judge of the First-tier Tribunal