Kevin Isted v The Information Commissioner

This appeal concerns a decision made by the Information Commissioner (“the IC”) dated 10 March 2025 (reference IC-346141-P2N7). This was in connection with a request for information made to Tonbridge & Malling Borough Council (“the Council”) by the Appellant, Mr Kevin Isted concerning parking and parking restrictions at a specific location.

Mr Isted wrote to the Council on 15 July 2024 to request the following information:

“I should be grateful if you would let me have, under the Freedom of Information Act, all information that you have, going back to 1 January 2021, relating to:

Parking and parking restrictions in Common Road, Blue Bell Hill, Chatham; and

Parking at the viewpoint/picnic site off Common Road, on Blue Bell Hill.”

The Council responded on 9 August 2024 providing information it held in scope of the request. Mr Isted requested an internal review on 19 August 2024.

Following its internal review, the Council again wrote to Mr Isted on 2 October 2024 answering each point in turn and stating no further information was held in scope of the request.

Mr Isted contacted the IC on 23 October 2024 to complain about the way his request for information had been handled.

On 10 March 2025, the IC issued a Decision Notice (the “Decision Notice”) which determined that, on balance of probabilities, the Council did not hold further information in scope of the request and had complied with section 1(1) of the Freedom of Information Act 2000 (“FOIA”). The Decision Notice did not require the Council to take any steps.

The parties opted for paper determination of the appeal. The Tribunal is satisfied that it can properly determine the issues without a hearing within rule 32(1)(b) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (as amended).

The Tribunal considered a bundle of documents (574 pages).

Mr Isted appealed the Decision Notice to the Tribunal on 30 March 2025. He stated that he believed the IC came to an incorrect decision. The reasons for this conclusion, in summary, were as follows:

In support of his appeal, Mr Isted filed a number of documents which were included in the hearing bundle. This included the entirety of the documents which the Council disclosed to Mr Isted in response to his request.

The outcome sought by Mr Isted was for the Tribunal to allow the appeal and substitute a notice that orders the Council to take steps in relation to the request for information.

The IC responded to the Appeal on 9 May 2025 dealing with the points raised by Mr Isted.

The IC disagreed with Mr Isted’s view that the Council ought to have held the information sought in accordance with the Code of Practice issued under section 46 of FOIA. He submitted that the Tribunal in Councillor Jeremy Clyne v IC and London Borough of Lambeth (EA/2011/0190) held that the “issue for the Tribunal is not what should have been recorded and retained but what was recorded and retained” (paragraph 38). He argued that the issue of the Council’s alleged failings with regard to good records management practice is not within the ambit of the Tribunal’s jurisdiction under section 58. The Tribunal is limited to considering whether the IC was correct to conclude, on balance of probabilities, further information was not held.

In relation to whether the Council should have contacted elected members. If the emails on which Mr Isted relies, some of which post-date the request made in July 2024, were sent directly or copied to one or more elected councillors by the Council, then if further information was held it would have been discovered by the search strategy the Council used to find the information which was sent to Mr Isted on 9 August 2024.

The IC sought information from the Council as to what responses it had from statutory consultees.

Following Mr Isted’s complaint, the IC investigated the searches undertaken by the Council, who responded on 6 March 2025 that the searches were digital and included emails, the shared network drive and network storage. The IC maintained that he was satisfied that the Council had carried out a reasonable search to identify information falling within the scope of the request. The IC submitted that he was entitled to accept the responses of a public authority at face value unless there is some reason why he ought not to do, for example evidence that he is being misled (Oates v IC and Architects Registration Board – EA/201/038, paragraph 11).

The IC submitted that the way in which the Council conducts its business is outside the jurisdiction of both the IC and the Tribunal; FOIA does not address the issue of accuracy or completeness of any information provided in response to a request for information. Nor can the IC consider other allegations of maladministration or misconduct or make a judgment on the performance of the public authority. The sole issue before the Tribunal is therefore whether the IC erred in law or wrongly exercised his discretion in finding the council did not hold further information.

Mr Isted replied to the Response by a letter addressed to the IC dated 19 May 2025. He raised two additional points, which were:

The lack of compliance with the Code of Practice under section 46 was such that it was impossible for the Council to readily identify, locate or retrieve the information requested, so on the balance of probabilities the IC and Tribunal should consider this.

In relation to the reasons Mr Isted said that the IC should not have accepted the Council’s responses at face value, in summary, he made the following points:

He also suggests that some of the motivation for what he considers inadequate consultation is to seek to raise money to offset the Council’s costs due to underfunding and this was done through car parking charges and fines for illegal parking. He argues that this provided motivation to conceal records of the real reason for the parking restriction, which subsequently came to light when the parking restrictions were approved on 3 March 2025.

Mr Isted also drew the Tribunal’s attention to emails regarding lack of progress on consultation to remove the parking restrictions as an example that anything the Council says on this matter cannot be taken at face value. He describes these responses as “extremely careless and inaccurate and ignore the questions asked”. He also described it as “an extreme example of errors and failure to respond adequately, amongst the passive aggressive responses received from [the Council] that I and my neighbours feel are designed to wear us down and make us give up on a just cause”.

In relation to the question of lack of compliance with the section 46 code of conduct, Mr Isted, in summary, made the following points:

Mr Isted also responded to the points which had been raised in the Response. Whilst this largely reiterated his previous arguments in more detail, he also made the following points:

The Council did not provide documentary evidence of the real reason for the car parking restrictions but instead substituted inconsistent reasons in the consultation documents and the reports on them. Again, he suggests that this is further evidence of the Council misleading the IC.

Mr Isted concluded by asking the IC (and thus the Tribunal) to conclude that information is more likely to be held than not and invite the Tribunal to uphold the appeal. He also made reference to a number of remedies such as ordering the Council to apologise and review its guidance and procedures to ensure its future compliance.

Section 1 of FOIA provides that:

“(1)

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.”

The Role of the Tribunal

The Tribunal’s remit is governed by s.58 FOIA. This requires the Tribunal to consider whether the decision made by the Commissioner is in accordance with the law or, where the IC’s decision involved exercising discretion, he should have exercised it differently. If we are satisfied that the IC’s decision notice is in error of law or involves an inappropriate exercise of discretion then we will allow the appeal and may substitute a decision notice for that of the IC. The Tribunal may receive evidence that was not before the IC and may make different findings of fact from the IC.

The key issue for the Tribunal to consider was whether the IC’s determination that, on balance of probabilities, at the date of responding to the request the Council did not hold further information in scope of the request and had complied with section 1(1) was in accordance with the law.

In reaching his decision set out in the Decision Notice, the IC took into account the information provided to it by the Council about the searches which it had undertaken, which encompassed information held by a number of teams and individuals within the Council. It noted the Council’s view that some information would be held by council elected members but as they are considered to be their own data controllers the information they hold falls outside the scope of the request to the Council. It also took into account Mr Isted’s view that he believes that the Council should hold information in scope of his request.

The first question we must consider is whether on balance of probabilities the Council did hold further information within scope of the request beyond what it disclosed to Mr Isted on 9 August 2024. We find that Mr Isted’s request was for all “information that you have, going back to 1 January 2021, relating to: Parking and parking restrictions in Common Road, Blue Bell Hill, Chatham; and Parking at the viewpoint/picnic site off Common Road, on Blue Bell Hill.”

We find that the searches undertaken by the Council were digital and included emails, the shared network drive and network storage relating not only to the Parking Team, but also to the Technical Services Team, the Head of Service, the Director of Streetscene, Leisure and Technical Services and his PA. We note the IC’s submission that if the emails sought by Mr Isted were sent directly or copied to one or more elected councillors by the Council, then if further information was held it would have been discovered by the search strategy which the Council used.

Mr Isted made reference in his Reply to information which post-dated his request to the Council. One of the arguments which Mr Isted relies upon is that he says the Council should have made enquiries of certain elected councillors including asking them to check their council email accounts, personal email accounts and notes they might have taken digitally or manually. We disagree with Mr Isted and agree with the Council who stated in their response to him that these councillors were data controllers in respect of this material, for the following reasons. Personal email accounts and notes held by the councillors would not be information under the control of the Council, so would be incapable of being responsive to a FOIA request in any event. We consider that where local councillors perform their function as elected members, rather than as representatives of the council in carrying out the business of the council, any information held by the councillors, for example when corresponding with their constituents, will be information held by the councillor and not information which the Council holds for the purpose of FOIA, because it is not information arising from work for or on behalf of the Council, but from the discharge of their elected function. This is supported by the case of Voyias v Information Commissioner & LB Camden [2011] WLUK45 (EA/2012/0096) where among other things the Tribunal found that:

The IC maintained that he was satisfied that the Council had carried out a reasonable search to identify information falling within the scope of the request. The Tribunal is also satisfied that the scope and extent of the enquiries and searches conducted by the Council was sufficient and reasonable in all the circumstances.

The IC submitted that he was entitled to accept the responses of a public authority at face value unless there is some reason why he ought not to do, for example evidence that he is being misled (Oates v IC and Architects Registration Board – EA/201/038, paragraph 11).

Mr Isted made several arguments in his Reply as to why he considered the IC had been misled by the Council and why he said that what the Council told the IC could not be taken at face value. These included allegations as to the Council being motivated not to provide him with all the information in order to frustrate the possibility of Mr Isted seeking judicial review of the decision to impose the parking restrictions. He also suggested that the Council concealed records of the real reasons for the parking restrictions so it could raise money to offset its running costs. We were not persuaded by these arguments because we found these allegations to be unsupported by any evidence as to the actual state of mind and motivation of the Council or its employees. We therefore find that the IC was entitled to accept the Council’s response to his enquiries at face value, because there was no reason evident why he should not do so.

We agree with the IC’s submission in relation to the case of Clyne; in effect this means that the Council cannot disclose under section 1 what it does not hold. As we have found that on balance of probabilities the Council did not hold the information sought by Mr Isted, it follows that it cannot provide information beyond what is held.

Mr Isted also argued that the difficulty he experienced in navigating the Council’s website, to which it had signposted him, meant that the Council had failed to comply with its obligations under section 1(1). We disagree with this argument because Section 1(1) only requires that if information is held it must be communicated in response to a request; it makes no stipulation about how it should be done. There is no evidence to indicate, for example, that the difficulties experienced by Mr Isted would be experienced by any other person. If the allegation is about how the obligation was carried out, rather than whether it was carried out, then this is a matter for judicial review, not for this Tribunal under section 58 of FOIA.

We therefore find that on balance of probabilities the Council did not hold further information which was responsive to Mr Isted’s request and had complied with its obligations under section 1(1) of FOIA.

There remain a few outstanding issues which we touch on for completeness. Mr Isted argued that the fact that responses to the parking consultation from statutory consultees such as the emergency services means that there was no proper consultation in relation to the parking restrictions. He also criticised the reasons given in consultation documents as being incorrect and argued that the failures in complying with the Code of Conduct required under Section 46 meant that it was impossible for the Council to identify all the relevant information.

We consider that these are all matters which take issue with the manner in which the Council discharged its functions more generally. In particular, the accuracy or lawfulness of the consultations conducted is a matter for the Administrative court, not this Tribunal, as our jurisdiction is limited under section 58 to determining whether the Decision Notice was in accordance with the law or not. There is insufficient evidence to demonstrate a causal link between any alleged failures in relation to a Code of Conduct under section 46 (the existence of which this Tribunal cannot determine in any event) and failure by the Council to produce documents which Mr Isted considered that it should have.

Mr Isted argues that the further request he made for local guidance to the Council on 9 and 10 January 2025 should have been treated as a FOIA request. This is a separate request to the request which is the subject of this appeal and does not fall within the ambit of these proceedings.

Finally, the remedies sought by Mr Isted in his Reply, namely an order to apologise and a requirement for the Council to review guidance and procedures are not ones which this Tribunal has power to grant.

For all the reasons set out above, we find that on balance of probabilities, the IC’s Decision Notice was in accordance with the law and dismiss the appeal.