Decision: The appeal is Dismissed.
REASONS
- In this decision the following terms have the following meanings:
| 10 March email |
an email dated 10 March 2023, sent by SPAB to a number of people who appear to include representatives of the Council; |
| Commissioner |
the Information Commissioner; |
| Council |
Fladbury Parish Council; |
| Decision Notice |
the notice of the Commissioner's decision number IC-282028-L8Q5, dated 18 June 2024; |
| EIR |
the Environmental Information Regulations 2004; |
| FOIA |
the Freedom of Information Act 2000; |
| Request |
the Appellant's request for information dated 2 October 2023; |
| Requested Information |
the information within the scope of the Request; |
| SPAB |
the Society for the Protection of Ancient Buildings. |
- This is an appeal by the Appellant against the Commissioner's decision as set out in the Decision Notice.
- The Appellant, the Commissioner and the Council consented to the Appeal being decided without a hearing. The Tribunal received and considered a bundle of documents, including the Appellant's notice of appeal, the Commissioner's Response, and correspondence between the parties relating to the Request and the Appellant's complaint to the Commissioner, and has separately seen and considered the Council's Response to the Appeal. The Tribunal is satisfied that this was a fair and just way to decide the Appeal.
Background
- The Request was made in relation to the proposed sale of a parcel land by the Council to SPAB. SPAB is the beneficiary of two gifts of land made in a will. SPAB and the Council entered into discussions regarding the possibility of SPAB purchasing from the Council some additional land which SPAB could use in conjunction with the land which it had acquired, or would acquire, under the will.
- On 2 October 2023 the Appellant made the Request to the Council in the following terms:
… could you please provide me with the information regarding S.P.A.B's rationale for wishing to acquire (3.7%) of the field kindly left by David Wynne in his will, to Fladbury Village?
- The Council wrote to the Appellant on 4 October 2023 providing a narrative response to his question, and provided a formal response under FOIA on 27 October 2023, disclosing a number of documents. In its letter of 27 October 2023, the Council said that the information disclosed had "been redacted to remove the names and contact details of any individuals named in the correspondence". It also stated that further information "may be available" in published materials available on the Council's website, and due to the will being publicly available.
- During October and November 2023 there was correspondence between the Appellant and the Council in which the Appellant questioned whether the documents disclosed by the Council were all of those which fell within the scope of the request. This included the Appellant requesting an internal review of the Council's original decision. The Council wrote to the Appellant on 30 October 2023 confirming that it did not hold any further information.
- The Appellant complained to the Commissioner on 18 January 2024. The Commissioner carried out an investigation, and issued the Decision Notice on 18 June 2024. The Commissioner found that the Council had disclosed all of the information it held which was within the scope of the Request.
- The Appellant appealed to the Tribunal.
The Appeal
- The Appellant raised two grounds of appeal:
a. that, in the Decision Notice, there was no reference to a particular document, which is discussed below;
b. that he objects to the Commissioner's positive comments in the Decision Notice regarding the Council's approach in responding to the Request.
- The Appellant asks the Tribunal to give its opinion regarding whether the Council has been open and transparent in relation to the Request, and regarding the effectiveness and independence of the internal review carried out by the Council. He also asks to see all of the information within the Request.
Relevant law
- The request was handled by the Council referencing FOIA. In the Decision Notice the Commissioner says that the correct regime is EIR, but does not give any reasoning for this.
- The Tribunal agrees with the Commissioner that the correct regime is EIR, as the Requested Information falls within the definition of "environmental information" in Regulation 2 of EIR, which provides, so far as relevant, that:
"environmental information" [means] 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 Tribunal considers that the Requested Information falls specifically within sub-paragraph 2(c) of Regulation 2.
- Regulation 5 EIR provides as follows:
Duty to make available environmental information on request
5.—(1) Subject to paragraph (3) and in accordance with paragraphs (2), (4), (5) and (6) and the remaining provisions of this Part and Part 3 of these Regulations, a public authority that holds environmental information shall make it available on request.
(2) Information shall be made available under paragraph (1) as soon as possible and no later than 20 working days after the date of receipt of the request.
- The Council is only required to disclose environmental information to the extent that it holds that information. Whether a public authority holds information is a question of fact, to be determined based on the relevant evidence.
- Regulation 18 of EIR applies the provisions of Part V of FOIA (Appeals) to decisions made under EIR. Section 58 of FOIA provides as follows:
58 Determination of Appeals
(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.
Discussion
Whether further information was held
- In order to decide this Appeal, it is necessary for the Tribunal to determine whether, on the balance of probabilities, the Council holds more information which is within the scope of the Request than it has disclosed.
- The Appellant appears to believe that it does. To the extent that the Appellant has presented evidence regarding this argument, this is in his first ground of appeal. Specifically, the Appellant states that: "there was no mention by [the Commissioner, in the Decision Notice] of a copy of an email relating to a Zoom meeting held on 25 Jan 2023, that was not disclosed to me, however it was included in the information sent to the ICO".
- The Tribunal has seen the minutes of the relevant meeting, which appears to have been between representatives of the Council and the executors of the will.
- The Appellant's first ground of appeal references "a copy of an email relating to" the Zoom meeting, although does not specify which copy of which email this is. Having considered the bundle the Tribunal believes it most likely that this is a reference to a specific printed copy of the 10 March email.
- The 10 March email was disclosed to the Appellant in redacted and truncated form by the Council in its response to the Request on 27 October 2023. That copy of the 10 March email was redacted to remove personal data, and was truncated, with some text towards the end of the email not being disclosed. The Appellant has separately obtained a full, unredacted copy of the same email.
- The Decision Notice deals with the redacted and unredacted copies of the 10 March email, and notes that the text which was not included in the copy disclosed to the Appellant by reason of the truncation of the email was not within the scope of the Request. The Tribunal agrees with the Commissioner on this point. The relevant wording mainly sets out some possible terms which SPAB and the Council might agree in relation to the sale of the land, and not SPAB's rationale for acquiring the land.
- The Commissioner's Response references this copy of the 10 March email, although in confusing terms. Addressing the relevant ground of appeal, the Response refers to paragraph 14 of the Decision Notice, which in turn refers to the 10 March email. However, in its discussion of this ground of appeal and the relevant part of the Decision Notice the Commissioner's Response refers to an unidentified document dated 23 March 2023. No such document was included in the bundle. The Tribunal believes this to be an error by the Commissioner in his Response.
- If the Appellant was not referring in his grounds of appeal to the 10 March email, it is not clear to what other email this could have been a reference. It is possible that the use of the word "email" was incorrect, and that this was a reference to the minutes of the meeting held on 25 January 2023. These minutes were not disclosed by the Council in response to the Request.
- In the Tribunal's view the minutes of this meeting do not fall within the scope of the Request. Much of the content of the minutes is unrelated to the Requested Information. The minutes refer to a previous meeting between the Council and SPAB, and state that "SPAB had provided the rationale for their wishing to acquire the additional piece of land", without recording what this was. The Council says that these minutes were prepared by the executors of the will, and that the explanation had been provided "verbally" and no other documentation existed.
- The Appellant does not challenge the redactions made by the Council in the documents disclosed on 27 October 2023, which the Council says were made in order to remove personal data.
- The Council told the Commissioner that it had taken advice from the Worcestershire County Association of Local Councils in relation to the Request, and that the Clerk and the Chair of the Council, as "the principal persons involved" in the matter had:
a. searched their paper and electronic files for relevant documents;
b. considered the information they had gathered and discussed this with other councillors; and
c. asked all of the councillors to search their records for relevant information.
- Although not strictly part of its response to the Request, the Council also asked SPAB to write to the Appellant to explain its rationale. The evidence indicates that SPAB did so, although the Tribunal has not seen a copy of its letter.
- The Council also offered on several occasions to meet with the Appellant to discuss the matter.
- It is clear that the Council made efforts to locate relevant information, and disclosed relevant information in response to the Request, having taken care to redact personal data and to order the information for reference. The Appellant has not, in the view of the Tribunal, shown any evidence that the Council holds information which it ought to have disclosed pursuant to the Request and which it did not disclose.
- Accordingly, the Tribunal finds on the balance of probabilities that the Council does not hold any further relevant information.
The Council's process
- The Appellant objects to the Commissioner's comments in the Decision Notice regarding the Council's process for responding to the Request. Specifically, he does so on the basis that the internal review was carried out by the Council's Chairman and Clerk, and the Chairman had been involved in the relevant decisions.
- The comments to which the Appellant objects are at paragraph 18 of the Decision Notice, which states:
The Commissioner wishes to highlight the good practice demonstrated by the [C]ouncil in its response to the [R]equest. He considers this to be clear, concise and informative as to its handling of the request, and the information which has been identified and disclosed – which is helpfully detailed in an itemised list.
- In the Tribunal's view the Appellant's complaint regarding this wording is not a ground of appeal to this Tribunal. As noted above, on an appeal in relation to a decision under EIR the Tribunal may only allow an appeal if it considers that the relevant notice is not in accordance with the law, or that the Commissioner ought to have exercised his discretion in issuing the notice differently.
- The Commissioner's comments do not relate to the underlying decision of the Council which the Commissioner was considering, but to the manner of the response itself. This is a statement of opinion by the Commissioner, is not material to the substance of the Commissioner's decision as set out in the Decision Notice, and is not a matter for the Tribunal's jurisdiction.
- To the extent that the Appellant's concern here relates to the manner in which the Council handled the Request, this is also not a matter for the Tribunal. The jurisdiction of the Tribunal in this Appeal relates to the issuing of the Decision Notice by the Commissioner.
Conclusion and decision
- For the reasons set out above, the Tribunal is not persuaded that the Commissioner's decision was wrong in law, or that he ought to have exercised his discretion differently, and accordingly dismisses the Appeal.
- Regarding the Appellant's requests for the Tribunal's opinion on matters relating to the Council's handling of the Request, it follows from what is said at paragraph 37 above that these are not matters for the Tribunal to consider.
Signed
Tribunal Judge Maton
Date: 24 March 2025
