Thomas Reed v The Information Commissioner [2025] UKFTT 1131 (GRC)

[2025] UKFTT 01131 (GRC)

Case Reference: FT/EA/2024/0464

First-tier Tribunal

(General Regulatory Chamber)

Date 29 September 2025

Information Rights

Heard by Cloud Video Platform

Before

JUDGE SOPHIE BUCKLEY

JUDGE SHENAZ MUZAFFER

MEMBER KERRY PEPPERELL

Between

THOMAS REEDAppellant

THE INFORMATION COMMISSIONERRespondent

Decision: The appeal is allowed as the Decision Notice contains an error of law. The Tribunal makes a Substituted Decision Notice, as follows:

1.The Tribunal finds that Dorset Council has not complied with its obligations under regulation 5(1) and 5(2) of the Environmental Information Regulations 2024.

2.The Tribunal does not require Dorset Council to take any steps.

REASONS

[1]This is an appeal against a decision of the Information Commissioner (the “Commissioner”) dated 26 November 2024, reference IC-313814-C8L3 (the “Decision Notice”).

[2]A hearing took place via CVP on Tuesday 16 September 2025. The Appellant represented himself. The Respondent did not attend, having previously indicated that he did not intend to do so.

Factual background

[3]The appeal relates to the application of the Environmental Information Regulations 2004 (“the EIR”). It concerns information held by Dorset Council (“the Council”).

The request and response

[4]The Appellant made the request which is the subject of this appeal on 05 June 2023 in writing as follows [sic]: “Im requesting to know how long bins belonging to [redacted property address] have been causing an obstruction on public highways which has caused me injury. This could either be via CCTV or even just a record written description which you should be able to do using the CCTV on the bin lorrys when theyre doing their rounds. I would like you to go back a month if possible from 29/05/2023 so start day would be 29/04/2023 ending 29/05/2023. The relevance of this is [redacted number of property] has been unoccupied for around a month therefore the bins wouldnt need to be out for collection unless the bins are rubbish themselves which I have been told theyre in which case the bin lorrys should have picked this rubbish up a long time before I had my accident. I will attach an image of they type of bin provided by local council that im referring to, the bind does have there door number on it [redacted number of property] however depending on which angle the CCTV is facing at the time the bin lorry may not see this. The bins were located outside [redacted name] bar/nightclub in front of the fire exit door which again even if there were no rubbish to collect you would expect the staff working for Dorset waste to move them away from the fire door its a hazard”.

[5]The Appellant sent a subsequent email to the Council later the same day, which stated: “I would actually like to request cctv of the bins to see how they are being left aswel as a record to say if the bins were there or not on those dates I have already given as I know it’s either Dorset council or the owner of [redacted number of property] who is liable for my injuries as I have no dealings with the rubbish but yet iv ended up slipping on it”.

[6]On 07 June 2023, the Insurance Team at the Council wrote to the Appellant stating: “I can confirm we have viewed the CCTV footage and it does capture the incident. I believe you have requested the footage from the CCTV team and they are processing your request. The footage does not show the bins or how the bin lid came to be in the road”.

[7]The Appellant sent a further email to the Council on 09 June 2023 which read: “Iv just been told the date property [redacted number of property] bacame empty so could I get cctv from 20/04/23 till 29/05/23 if possible”.

[8]The Council responded in writing to the Appellant’s request (which they dealt with under the Freedom of Information Act 2000) on 15 June 2023. Their response stated:

“We have viewed CCTV from the collection vehicle and our operatives do not touch or move the recycling boxes; as there was no material presented for collection; on the last occasion we passed by before the incident; the boxes were in the recess of the doorway not out on the pavement. We would be unaware if the property is occupied or not and would not remove the boxes unless requested; we have since removed them following this report. We would not provide a copy of the CCTV however we could arrange a suitable appointment for the you [sic] to come and view this at the depot if you so wish. To arrange this please contact – [name and email address redacted] We would not be liable for this incident as explained the boxes were not blocking the pavement when our vehicle last passed the address they were not left as an obstruction by our operatives”

To arrange this please contact – [name and email address redacted]

[9]The Appellant sent a further email to the Council on 17 June 2023 which read: “I have already made a request the reference number is DC/6109. Iv only been given a description of the last date of the bin collection before my accident which is 26/05/2023 however im sure I asked for at least a month prior to the accident and I told you why it was relevant so why am I only being given information on that 1 date? Im now also being told I need to arrange a viewing to see the cctv myself which is fine I can do that but as I have been told I cant physically have the cctv myself I will need a description of it as well and this should include if you can see the number [redacted number of property] on the bins cos thats whos bins theyre and it is on it depending on what way its facing I know this cos I have seen it myself. I need to see cctv from 20/04/2023 to 31/05/2023 when the bin lorry is driving down [redacted street address] as the property the bins are for the use for was unoccupied in this time period so if the bins were out it needs to be justified by the owner as to why. Please find attached a picture that clearly has the door number on the bin. Also can we get this done as soon as possible please cos I dont want to risk loosing any evidence”.

[10]The Council closed the above request on 20 June 2023 as “not FOI/EIR”.

[11]Following attempts made by the Appellant to arrange to view the CCTV footage, the Council contacted him on 04 July 2023 to make arrangements for him to do so. The Council also stated “We have investigated if there was any other CCTV footage as well as the one clip we have discussed; unfortunately the clip from the last collection day prior to the incident is the only recording we have”.

Other requests

[12]On 31 May 2023, the Appellant made a Subject Access Request for CCTV footage of a named street for the date and time of his accident (between 02:00-03:00 hrs on 29 May 2023). On 07 June 2023 he received a response to that request which confirmed that two pieces of CCTV footage had been located. He subsequently received the footage on 30June 2023. On receipt, it was apparent that one of the cameras collected footage from the specific address that he had referenced in his EIR request of 05 June 2023.

[13]On 14 September 2023, the Appellant made a further EIR request to the Council in which he requested information, including CCTV footage, regarding bins belonging to the same named property which were causing an obstruction on the public highway. A response was provided on 12 October 2023.

[14]The Commissioner issued a Decision Notice in relation to the EIR request that had been made on 14 September 2023, reference IC-279542-D4M3, dated 08 May 2024, in which he held that the Council had not complied with its obligations under regulation 5(1) EIR.

[15]During the course of the Commissioner’s investigation prior to the issuing of Decision Notice reference IC-279542-D4M3, the Council confirmed that it had discovered that there were three cameras with footage of the street in question – one camera in the waste service vehicle, and two public space cameras.

[16]The Council confirmed to the Commissioner that the Appellant had previously already viewed the CCTV from the waste service vehicle. The Council stated that, during its handling of the EIR request of 14 September 2023, it had inadvertently overlooked the fact that it had two public space cameras with footage of the relevant street – one close to the specified property, and one at the corner of the named street and an adjacent street.

[17]The Council confirmed that it had disclosed footage from both of the public space cameras to the Appellant on 29 and 30 June 2023 in response to the Subject Access Request that he had submitted. However, it became apparent during the course of the Commissioner’s investigation regarding the EIR request that was made on 14 September 2023 that the Council held further footage from one of the public access cameras for 29 May 2023 that had not been disclosed to the Appellant.

[18]The Council was required to disclose all relevant CCTV footage to the Appellant within 30 calendar days of the date of Decision Notice reference IC-279542-D4M3.

Complaint to the Commissioner

[19]The Appellant lodged a complaint with the Commissioner in relation to the Decision Notice that is the subject of this appeal on 18 June 2024.

[20]On 01 August 2024, the Commissioner wrote to the Appellant stating that, in order to consider his complaint further, the Commissioner would require clarification from the Appellant as to what information was sought by his request of 05 June 2023 that had not been sought in his subsequent request of 14 September 2023.

[21]On 02 August 2024, the Appellant responded to the Commissioner to indicate that “the difference between the request made on 5th of June and September 14th is mainly to do with the dates the requests were made as the information held. On both of these dates is different due to cctv getting deleted every 30 days”. He maintained that the Council had failed to provide him with all of the information that they held at the time of his request on 05 June 2023 and again asserted that they had breached their duty and committed a criminal offence pursuant to regulation 19 EIR.

[22]Having initially declined to consider the Appellant’s complaint regarding the request made on 05 June 2023 as it was believed that it had been addressed in the subsequent Decision Notice reference IC-279542-D4M3, the Commissioner did then accept it for consideration on 10 October 2024 as it had subsequently identified that the scope of the request made on 05 June 2023 was different to that made on 14 September 2023.

[23]The Commissioner wrote to the Council on 10 October 2024 seeking clarification as to the scope of the Appellant’s request, the inspection of the CCTV, and whether the CCTV footage had since been deleted.

[24]The Council responded on 15 October 2024. It stated that recorded CCTV footage from the waste vehicles was automatically overwritten after approximately 28 days, and that the public space CCTV footage was automatically deleted after 30 days. As a consequence, the earliest footage from the requested time period had already been routinely deleted by the time that the Appellant submitted his request on 05 June 2023. The Council stated that, when they responded to the request on 15 June 2023, only the footage from within the last 28/30 days would still have been available.

[25]The Council confirmed that the Appellant had viewed the footage from the waste vehicle on 05 July 2023. All other CCTV footage was routinely deleted in line with its retention period, save for the footage that related directly to the Appellant’s accident and which had been retained for the purposes of his compensation claim.

[26]The Council confirmed that all footage that was saved had been disclosed to the Appellant. It stated that the public space CCTV footage that showed the accident was disclosed following a Subject Access Request and received by the Appellant on 01 July 2023. Additional public space CCTV footage (which did not capture the Appellant) and the waste vehicle footage (which had previously been viewed by the Appellant) had been disclosed pursuant to the request that had been made on 14 September 2023.

[27]On 23 October 2024, the Commissioner wrote to the Appellant in the following terms: “The Council has confirmed to us that it is not aware of any further held information (including any specific CCTV footage) beyond that which has been disclosed in response to your subject access request (under the Data Protection Act 2018), and the recent decision notice (that we have issued under the Environmental Information Regulations 2004). We have considered the Council’s position, and the steps the Council has already taken (including the information it has disclosed to your subject access request, and the recent ICO decision notice). Having done so, there is no evidence available to us that indicates that the Council holds any information in respect of your information request made on 5 June 2023, which has not already been disclosed. As such, we are satisfied that the Council has complied with the EIR in this case”.

[28]The Appellant responded to the Commissioner on 23 October 2023, stating that he did not accept the Commissioner’s decision as the Council had held relevant information at the time and, insofar as the public space CCTV was concerned, had already informed him that it had been an oversight that it had not been provided to him. In a subsequent email on 24 October 2024 he accepted that, whilst the Council would no longer hold any information as it was deleted every 30 days, they did hold the information at the time of his request and they failed to provide it to him.

Decision notice

[29]The Commissioner’s decision was that the Council has made all relevant information available to the Appellant and has complied with regulation 5(1) of the EIR. He does not require any further steps to be taken.

[30]The Commissioner stated that the scope of his investigation was “whether the Council holds information falling within the scope of the 5 June 2023 request, which has not already been disclosed or made available to the complainant”.

[31]The Commissioner went on to state that, where there is some dispute between whether the public authority holds additional relevant information, the Commissioner “must decide whether, on the balance of probabilities, a public authority hold any information which falls within the scope of the request (or was held at the time of the request)".

[32]In summary, the reasons for the Commissioner’s decision were:a. The Council had disclosed information in respect of the Appellant’s incident, both in respect of a Subject Access Request and other information following the latter EIR request. In addition, the Council notified the Appellant that he could inspect CCTV footage relating to the incident, and the Appellant did so on 05 July 2023;

b. The Appellant had acknowledged that he had received the footage of how the bin lid came to be in the road;

c. The Commissioner concluded that there was no evidence available to him that suggested that further recorded information was held by the Council which would fall within the scope of the request;

d. The Commissioner was therefore satisfied, on the balance of probabilities, that all information had been provided to the Appellant, and that the Council had therefore complied with regulation 5(1) of the EIR in respect of this request;

e. Furthermore, the Commissioner did not find any evidence available to him to suggest that any further information was being deliberately withheld as was asserted by the Appellant, and therefore had not undertaken a criminal investigation pursuant to regulation 19 of the EIR in this case.

Grounds of appeal

[33]The Appellant appealed on 28 November 2024.

[34]The Grounds of Appeal are, in essence, that:a. The Council held further information than that which had been provided to him and was therefore in breach of regulation 5 of the EIR;

b. The Council had given misinformation to the Appellant and should therefore be investigated for a breach of regulation 19 of the EIR;

c. The decision of the Commissioner was based on the information held by the Council as of the current date, rather than being based on the information held by the Council at the time of his request, and therefore the Decision Notice was wrong. The Commissioner had failed to investigate if the information sought was held at the time that the request was made;

d. The Council had committed an oversight in failing to provide him with information from both the public CCTV cameras and the waste collection CCTV pursuant to his request;

e. The date on the CCTV from the bin lorry that he had subsequently been provided with pursuant to his second EIR request displayed the date of 21 October 2021 and not 26 May 2023;

f. On the balance of probabilities, the Council did not provide him with all of the requested information that they held at the time that the request was made.

The response of the Commissioner

[35]The Commissioner’s response, dated 28 April 2025, relies on the Decision Notice and resists the appeal. At paragraph 10 of the response, the Commissioner stated that “the scope of this Appeal is whether the Council holds any further information, which has not already been disclosed or made available to the Appellant, falling within scope of the 5 June 2023 request”.

[36]In summary, the Commissioner’s response was:a. He had correctly applied the civil standard in considering whether the Council held any further information falling within the scope of the request. He found that the representations provided by the Council, particularly in relation to the searches undertaken by the Council and the explanations provided by them, sufficiently explained why it did not hold any further recorded information within the scope of the request than that which had been provided to the Appellant;

b. He had not seen any evidence which suggested that the Council had dishonestly informed him about the searches that it had conducted;

c. The Commissioner considered that the Appellant’s belief that the Commissioner had made his decision based on the information held by the Council more latterly rather than at the date of the request to be incorrect. The Commissioner considered that “the Council has disclosed all the recorded information it holds that is within the scope at the time of the Appellant’s Request on 5 June 2023”.

d. The Commissioner asserted that it was outside the scope of his investigation to determine whether there had been a breach of regulation 19 EIR, and it was also outside of the scope of the Tribunal’s jurisdiction;

e. Whilst the Appellant referred to failings in the Commissioner’s investigation, this was not a valid ground of appeal;

f. The Commissioner concluded by stating “the Commissioner resists this appeal and would submit that he was correct to conclude, on the balance of probabilities, that no further information is held by the Council”.

The Appellant’s reply to the Commissioner’s response

[37]In his reply dated 11 May 2025, the Appellant stated that:a. He had provided the Commissioner with evidence which showed that, on the balance of probabilities, the Council held more information than that which they provided to him at the time that his request had been made;

b. The Commissioner was treating his two requests in the same way, which was unfair. The Commissioner had focused the scope of his investigation on the information that was held by the Council “today” and not what was held at the time of the request. The Appellant accepted that anything that was held “today” would have been disclosed to him pursuant to the EIR request that he made on 14 September 2023;

c. The Appellant referenced an email from the Council which indicated that they had started to gather information in relation to his request by 07 June 2023 at the latest. As such, he stated that he should have been provided with all of the CCTV from 08 May 2023 to 29 May 2023, and to the CCTV from the waste vehicle from its shifts on 12, 19 and 26 May 2023. Even if the Council had only started to gather the requested information on the day of their response to him, 15 June 2023, he calculated that he should still have been provided with the CCTV from the public space cameras from 16 May 2023 to 29 May 2023, and from the waste vehicle for 19 and 26 May 2023. In fact, he had not received any footage at all from the public space cameras pursuant to this EIR, and had only viewed footage from the 26 May 2023 (the last collection date prior to his accident) from the waste vehicle;

d. He stated that the scope of the Decision Notice was flawed and incorrect as the Commissioner had focused their investigation on the information held by the Council more latterly and not what was held at the time of his request;

e. The Appellant repeated his assertion that the Commissioner was failing to investigate wrongdoing on the part of the Council relating to the way in which they responded to his request.

Legal Framework

[38]The relevant provisions of the EIR are as follows: s.5 Duty to make available environmental information on request(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.

(3) …..

(4) For the purposes of paragraph (1), where the information made available is compiled by or on behalf of the public authority it shall be up to date, accurate and comparable, so far as the public authority reasonably believes. …..

Time at which the duty pursuant to regulation 5(1) arises

[39]We have considered whether the duty pursuant to regulation 5(1) requires the Council to determine what environmental information is held at the time that the request is made or at a later time (either when the request is responded to or at the time of the Commissioner’s investigation). We are satisfied that the relevant time is the time at which the request is made for the reasons below.

[40]Firstly, the natural interpretation of the wording of regulation 5(1) and (2) of the EIR (as set out above) is that it includes information held at the time of the request – as supported by the fact that there is a duty to disclose such information, subject to any exemption, within 20 working days of receipt of the request. This interpretation is also supported by the wording of regulation 12(4)(a) of the EIR which states that “…..a public authority may refuse to disclose information to the extent that….it does not hold that information when the applicant’s request is received”. These two regulations support the interpretation that the relevant time is the time when the request is made.

[41]Secondly, we note the Commissioner’s guidance online which states: “Unless you establish that an exception applies, you will usually need to determine what environmental information you held at the time of the request and provide the requestor with that information”.

[42]Thirdly, we have had regard to the Upper tier Tribunal decision in Patricia O’Hanlon v Information Commissioner and Health and Safety Executive

[2025] UKUT 66 (AAC)

where (albeit in the context of considering the interplay between regulation 5(1) and regulation 12(1)(a)) the Tribunal held (at paragraph 44) that: “There is, at first blush, a slight tension between the need to satisfy regulation 12(1)(a), as recognised in the Coppel extract above, and the wording of regulation 5(1) – that a public authority that holds environmental information shall make it available on request. The use of the ‘holds’ in the present tense suggests that the public authority’s obligation depends on its holding the information at the time of the request”.

[43]The Tribunal notes that, in this case, the Upper tier Tribunal held that information obtained after the date that the request was received is only exempt from disclosure if the public interest balancing test resolves in favour of maintaining the exemption for information not held at the date of the request (and so the concept of information that is ‘held’ can extend to information obtained at a date later than the date that the request was made). However, in our view, this does not disturb the position that information held at the date of the request is in scope of the request, even if information that is later held is also deemed to be included.

The role of the Tribunal

[44]Pursuant to regulation 18 of the EIR, the enforcement and appeals provisions of the Freedom of Information Act 2000 shall apply (subject to the modifications in regulation 18) for the purposes of the EIR. As such, the Tribunal must 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.

Issues

[45]The issue for the tribunal to determine is whether the Commissioner’s Decision Notice was in accordance with the law and whether the Commissioner was correct in finding that the Council had made all relevant information available to the Appellant and had complied with regulation 5(1) of the EIR.

Evidence

[46]We read and took account of an open bundle containing 326 pages including indexes.

[47]We also heard submissions from the Appellant.

Discussions and conclusions

[48]At paragraph 9 of the Decision Notice, the Commissioner states: “The scope of the following analysis is whether the Council holds information falling within the scope of the 5 June 2023 request, which has not already been disclosed or made available to the complainant”.

[49]In his response dated 28 April 2025, the Commissioner states that “he was correct to conclude, on the balance of probabilities, that no further information is held by the Council”.

[50]We are satisfied, based on both the Decision Notice and the Response, that the Commissioner has applied an incorrect test when determining the scope of his investigation and his subsequent conclusion. It is apparent from the material before us that the Commissioner has focused the scope of his investigation and conclusion on whether, at the time that the Decision Notice was issued, there was any further material falling within the scope of the request which had not been disclosed to the Appellant.

[51]This is evidently the incorrect approach. As submitted by the Appellant and in line with the Commissioner’s own guidance and the proper interpretation of regulation 5(1) of the EIR, the Commissioner should have addressed the question as to what information was held by the Council that fell within the scope of the request at the time that the request was made on 05 June 2023 and whether the Council complied with its duty under regulation 5(1) to make that information available to the Appellant (subject to the application of any relevant exemption).

[52]In the Council’s response to the Commissioner dated 15 October 2024, the Council stated that the recording of CCTV footage from the waste vehicles was automatically overwritten after approximately 28 days, and that the public space CCTV footage was automatically deleted after 30 days. There is no suggestion from the Council that these time frames disapplied in this particular case.

[53]We are therefore satisfied on the balance of probabilities that, at the time of the request being made on 05 June 2023, the Council would have held CCTV footage from the waste vehicle dating back 28 days, namely to 08 May 2023, and that the Council would have held CCTV footage from two public space CCTV cameras dating back 30 days, namely to 06 May 2023. Whilst we accept that CCTV footage from both the waste vehicle and the public space cameras falling within the earlier timeframe of the Appellant’s request (be that from either 20 April 2023 or 29 April 2023 onwards) would not have been available even at the time that the request was made due to the automatic deletion, we are satisfied that footage from the latter part of that timeframe, namely from 06 May (for the public space footage) or from 08 May (for footage from the waste vehicle) to 29 May 2023 would have been held by the Council.

[54]This conclusion is supported by the fact that CCTV footage from both public space CCTV cameras had been disclosed to the Appellant on 30 June, in response to his SAR dated 31 May 2023. It is clear from the oral submissions of the Appellant that footage from both of those cameras related to the relevant date of 29 May 2023 and therefore would have fallen within the scope of the EIR request made on 05 June 2023.

[55]In addition, during the course of the Commissioner’s investigation into the second EIR request that was made on 14 September 2023, it became apparent that the Council also held further footage dated 29 May 2023 from one of the public space cameras that the Appellant had not, at that time, seen. Again, this footage would clearly have fallen within the scope of the EIR request made on 05 June 2023.

[56]We are therefore satisfied on the balance of probabilities that, at the time of the request being made, the Council held:a. Footage from the waste vehicle dated 26 May 2023. This is the footage that was viewed by the Appellant on 05 July 2023;

b. Footage from two public space cameras, which was subsequently disclosed to the Appellant pursuant to the SAR and the second EIR request;

c. Additional footage from the two public space cameras from 06 May 2023 to 29 May 2023;

d. Additional footage from the waste vehicle from 08 May 2023 to 29 May 2023.

[57]The footage outlined at (b)-(d) above fell within the scope of the request by the Appellant and yet was not provided to him pursuant to that request and in line with regulation 5(1) of the EIR.

[58]We are therefore satisfied, on the balance of probabilities, that the Council held information that fell within the scope of the request at the date that the request was made which it should have made available to the Appellant in line with the duty in regulation 5(1) of the EIR, subject to the application of any relevant exemption.

[59]It follows that the Council has also failed to comply with its duty under regulation 5(2) of the EIR to make such information available to the Appellant as soon as possible and no later than 20 working days after the date of receipt of the request.

[60]Given that the CCTV footage from the waste vehicle and from the public space cameras is deleted within 28 and 30 days respectively, we are satisfied on the balance of probabilities that no further information now exists from any of the CCTV cameras. The Appellant also accepts that this is the position as any further footage will have been deleted in line with the retention periods. We therefore cannot order the Council to take any further steps in this case.

[61]Finally, we note that the Appellant has invited the Commissioner to consider a breach of regulation 19 of the EIR. As the Appellant accepts, it is not for this Tribunal to consider the potential application of regulation 19 as it is not within our remit to do so.

Conclusion

[62]The Tribunal allows the appeal for the reasons given above and makes a Substituted Decision Notice in the terms outlined.