Stephanie Hanson v The Information Commissioner [2025] UKFTT 482 (GRC)

[2025] UKFTT 00482 (GRC)Case Reference: FT.EA.2024.0419
First-tier Tribunal
(General Regulatory Chamber)
Hearing Heard on the papers: 17 April 2025Date 30 April 2025
Information Rights
Before
JUDGE FOSSMEMBER YATESMEMBER TAYLOR
Between
STEPHANIE HANSONAppellantTHE INFORMATION COMMISSIONERRespondentUnrepresented for AppellantUnrepresented for RespondentDecision: The appeal is Allowed in part.Substituted Decision Notice:Lewisham Borough Council must, by no later than 4.00 p.m. on 28 May 2025, inform the Appellant in writing whether it holds information of the description specified in Questions 5, 9 and 15 of the Appellant's request for information dated 29 November 2023 and, if does hold such information, within the same timeframe:a.Provide it to the Appellant; orb.If the Council relies on a claim that any information is exempt information, send the Appellant a notice which states that fact, specifies the exemption in question, and states why the exemption applies.REASONS

Background

[1]This is an appeal against the Decision Notice of the Respondent (“the Commissioner”) referenced IC-300088-C0R8 dated 4 October 2024.[2]The appeal relates to the Appellant’s request dated 29 November 2023 of Lewisham Borough Council (“the Council”) for information relating to building and repair works conducted by the Council and its agents on the Dacres Estate.[3]The Appellant framed her request as a “Freedom of Information” request. The Council’s response was offered by reference to the Freedom of Information Act 2000 (“FOIA”) and the Environmental Information Regulations 2004 (“EIR”). The Commissioner headed his Decision Notice with reference to both pieces of legislation, although he did not, in the body of the Decision Notice, make any reference to the provisions of either. By his Response to the appeal, it is evident that he characterises the information as environmental information.[4]In our view, the requested information is not environmental information within the meaning of EIR, and the applicable legislation is FOIA.[5]The Commissioner decided that, on the balance of probabilities, the Council does not hold any recorded information beyond that disclosed by the Council to the Appellant.[6]The parties were agreeable to the determination of the appeal on the papers, that is to say, without an oral hearing. We are satisfied, pursuant to Rule 32(1(b) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009, that we can properly determine the issues without a hearing.[7]We read a single, OPEN bundle of 444 pages.

The Request

[8]On 29 November 2023, the Appellant submitted a request to the Council, consisting of 16 questions.[9]The 6 questions relevant to this appeal (“the Request”) were as follows:a. “5/ On what date (or dates) was a decision made to carry out surveys on blocks on Dacres Estate (including Ashleigh Point) in relation to major works under the Long Term Agreement LTA01310?”b. “8/ On what date was Symphony (Address: Unit 14 Salamanca Road, Tharston Industrial Estate, Long Stratton, Norfolk, NR15 2PF) first contacted to provide customer sketches for the replacement of windows at Ashleigh Point and other Dacres Estate blocks and by whom within Lewisham Homes (job number 278, job reference SYM16556)?”c. “9/ Please provide copies of any communications with Symphony in relation to providing sketches for the replacement of windows at Ashleigh Point and other Dacres Estate blocks (job number 278, job reference SYM16556)”d. “10/ When did work start on the DACRES ROAD DEVELOPMENT UPDATE SEPTEMBER 2021 NEWSLETTER by the New Initiatives Team? Please provide documents or communications to evidence this.”e. “11/ At what point did team members from the New Initiatives Team who developed the DACRES ROAD DEVELOPMENT UPDATE SEPTEMBER 2021 NEWSLETTER issue of the newsletter become aware of the plans for 'new roofs and windows, external redecorations and brickwork repairs' on Dacres Estate (including Ashleigh Point)? Please provide documents or communications to evidence this.”f. “15/ What communications did this department have with the Lewisham Homes Home Ownership Team prior to 21st September 2021? Please provide documents or communications to evidence this.”[10]On 28 December 2023, the Council responded. We set out the Council’s responses in relation to each question in the section of our decision headed “Analysis” below.[11]On 11 March 2024, the Appellant sought an internal review of the Council’s responses.[12]On 5 April 2024, the Council upheld its responses. It said that “The relevant teams have been contacted and have stated that all recorded information held within scope of your request, has been provided to you.”[13]On 9 April 2024, the Appellant complained to the Commissioner. In so doing, the Appellant indicated either that she did not accept the Council’s confirmation that it did not hold the information requested, or that she believed the Council held more information than it had provided. The Appellant said she was concerned that the Council was purposely withholding information to avoid prejudicing its position in a proposed legal challenge by the Appellant concerning allegedly incorrect information provided by the Council about major works when the Appellant was purchasing her flat within the Council’s area in 2021.[14]The Commissioner investigated. In so doing, he took on board the Appellant’s itemised dissatisfaction with each of the Council’s responses, which in turn informed his enquiries of the Council as to the extent of its searches for information responsive to the Appellant’s questions. Having reviewed the Council’s explanations to him, he decided that, on the balance of probabilities, the Council did not hold the information requested.

The Appeal

[15]By her Notice of Appeal dated 22 October 2024, the Appellant submitted, in summary, that in relation to all questions, she was not satisfied as to the sufficiency of the Council’s searches: the Council should, but appeared not to, have searched for responsive information held by relevant staff members within their individual email accounts, rather than relying on a search of the main shared drive in the relevant department; the Council’s search terms were insufficient, and included an error in relation to the name of the block of flats in which the Appellant lives; and, in relation to Questions 8 and 9, the Council should require a third party, United (South) Living Limited, to search its information repositories for responsive information.[16]By his Response to the appeal dated 9 December 2024, the Commissioner submitted, in summary, that:a. He was satisfied that all information held by the Council in scope of the Request was disclosed to the Appellant, and that he was correct to accept that, on the balance of probabilities, the Council does not hold further information.b. The Council had conducted adequate searches and provided satisfactory reasons for the basis of those searches.c. He was entitled to accept at face value the responses of the Council where, as in this case, there was no evidence of an attempt to mislead him or of a motive to withhold responsive information.[17]By her Reply to the Commissioner’s Response, dated 24 December 2024, the Appellant submitted, in summary, that:a. The Council’s searches were insufficient in scope, rigour and efficiency.b. After the Council’s response to the Request, a document from September 2021 was identified relating to customer sketches by an entity called Symphony, of windows matching the measurements of residents’ windows in the Dacres Estate blocks. This predates the date which the Council had previously confirmed to the Appellant as the date of first contact with Symphony: November 2022. The fact that the Council were able to upload the document means that it must hold it through an electronic communication sharing the document with the Council.[18]We have only summarised the Appellant’s Reply, but we have carefully considered the totality of it.

The Legal Framework

[19]EIR apply to environmental information, which is defined as 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;(d) reports on the implementation of environmental legislation;(e) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in (c); and(f) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are or may be affected by the state of the elements of the environment referred to in (a) or, through those elements, by any of the matters referred to in (b) and (c).[20]We find that, naturally construed, the subject matter of Appellant’s questions was information relating to administrative matters undertaken by, and communications to and from, the Council, which is not information which falls to be regarded as environmental information as defined.[21]In our view, the information requested falls instead to be considered under FOIA.[22]S1 FOIA provides as follows: General right of access to information held by public authorities (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.[23]S1 FOIA has effect subject to the remaining provisions of s1 and to the provisions of ss2, 9, 12 and 14 FOIA.[24]When determining whether information is held, the Commissioner and Tribunal apply the normal civil standard of proof: whether the public authority holds the requested information on the balance of probabilities.[25]The Tribunal will consider the public authority’s analysis of the request, and the scope, sufficiency and rigour of its searches for the information it has identified as falling within scope of the request. It will also consider whether any further responsive information has been subsequently identified which may suggest that initial searches were inadequate.

Analysis

[26]The Appellant’s Grounds of Appeal are supported by an accompanying submission which consists of granular commentary not only on the Council’s responses but the adequacy of the Commissioner’s investigatory questions and the adequacy of the Council’s responses to those questions, and suggestions of further enquiries the Commissioner might make of the Council. The effect of this approach is to set up something of a roving inquiry which goes beyond the original questions which form the subject matter of the Request and does not properly form part of an appeal against the Decision Notice.[27]We address each question in the Request in turn, setting out the Council’s response to it, the expression of the Appellant’s dissatisfaction with the Council’s response, the searches which the Council has confirmed to the Commissioner it made in relation to each request, and our finding in relation to each. Question 5: On what date (or dates) was a decision made to carry out surveys on blocks on Dacres Estate (including Ashleigh Point) in relation to major works under the Long Term Agreement LTA01310?” Council’s response:
“Order was raised for surveys to be carried out on 30th October 2021.”
[28]The Appellant complained to the Commissioner:
“NOT SATISFIED: does not answer question - states when order was made, not the date the decision was made to carry out surveys. May have been decided a long time prior to the order being raised. No supporting documentation e.g. emails, internal documents provided to support this response.”
[29]It is arguably unclear whether Question 5 refers to the date or dates of a formal decision made by the Council in relation to major works under the agreement referred to, which then entailed surveys being undertaken, or the date or dates of decisions to carry out those surveys themselves. We consider that the latter is the more natural, and the correct, construction of the request.[30]The Council confirmed the following to the Commissioner:a. It does not hold any recorded information which clearly states a date when a decision was made to carry out surveys.b. Searches were made through the main computer shared drive held by the Stock Investment and Asset Management Team/Major Works (“the SIAM drive”).c. If the information were held, it would have been held electronically on the SIAM drive and not in hard copy.d. The Council had also made enquiries of members of staff in the Major Works team and in Home Ownership Services.[31]It is not clear from the material before us whether individual email accounts containing potentially responsive information are held on, or copied to, the main SIAM drive. We understand not. Against what we find to be the correct construction of the question, we consider that it is reasonable to suppose that individual staff emails may have recorded information indicating the date or dates on which decisions were made to carry out surveys on specific blocks on the Dacres Estate, even if only in the context of the practical arrangements for such surveys. Accordingly, we consider that a search for information responsive to Question 5 which was confined to the SIAM drive was insufficient.[32]Separately, the Appellant takes issue with the search terms used by the Council over the SIAM drive: “Dacres Road”, “Ashleigh Crescent” and a specific address. She submits, and this has not been contradicted by the Commissioner, that there is an error in the search term “Ashleigh Crescent” which is not, to the Appellant’s knowledge, any residence, block or road in the borough of Lewisham, and that the search term should have been “Ashleigh Point”.[33]Absent evidence before us as to the format of the searches made, that is to say whether use of “Crescent” rather than “Point” in conjunction with “Ashleigh” would have made a material difference, we are unable to determine whether this was a material error in the searches, giving rise to a correspondingly material risk that potentially responsive information may have been missed. However, it seems to us that it raises a real, as opposed to fanciful, doubt about the efficacy of “Ashleigh Crescent” as a search term.[34]Additionally, the Appellant submits that additional search terms would have been appropriate: “Survey”, “Surveys”, “Dacres”, “Dacres Estate” and “Dacres Tower”, which could yield potentially responsive information not yet identified.[35]It is, of course, open to anyone to speculate as to what different search terms might be used in any exercise, but in our view, the Council is better placed than anyone to identify appropriate search terms, familiar as it is with its own naming and IT protocols, the format of searches, and the available combinations of search terms. It seems to us that, viewed in isolation or in limited combinations, the Appellant’s proposed search terms may have been unfeasibly wide. As it is, we see nothing unreasonable in the Council’s selection of search terms used, subject to the possible error in relation to “Ashleigh Crescent” rather than “Ashleigh Point”.[36]The Commissioner asked the Council whether any recorded information was ever held about the decision to carry out the surveys in question and then deleted, and whether the Council had a record of such deletion. The Council responded that it was unable to confirm the former, and that the latter was “N/A”. The Appellant submits in this context that the Council should have recorded the decision which is the subject of Question 5.[37]We remind ourselves that any issue as to the Council’s obligation to document such a decision was no part of Question 5. It is, in any event, no part of the application of FOIA to determine whether a public authority should have created (or destroyed) or should hold information, only whether it does, in fact, hold it at the time of the request.[38]Given that we find that a search responsive to Question 5 which did not includes searches of individual staff emails was insufficient, and the apparent error in the search term “Ashleigh Crescent”, we find that the Commissioner was wrong to conclude that, on the balance of probabilities, the Council does not hold information responsive to Question 5, as we have construed it. Question 8: On what date was Symphony (Address: Unit 14 Salamanca Road, Tharston Industrial Estate, Long Stratton, Norfolk, NR15 2PF) first contacted to provide customer sketches for the replacement of windows at Ashleigh Point and other Dacres Estate blocks and by whom within Lewisham Homes (job number 278, job reference SYM16556)?” Council’s response:
“United Living Ltd have confirmed that they first contacted Symphony to carry out surveys in Nov 2022. Please see attached email.”
[39]The Appellant complained to the Commissioner:
“NOT SATISFIED: date is more than a year after date in company sketches consistent with our windows that were provided to Dacres Estate residents in the consultation. Appealed this response and told ‘we wish to uphold our previous responses’ AND ‘The relevant teams have been contacted and have stated that all recorded information held within scope of your request, has been provided to you.”
[40]We understand that United Living (South) Limited (“United Living”) is the company contracted by the Council to undertake the relevant building works, and that it liaised with an entity called Symphony in relation to the windows which featured in those works.[41]Upon receipt of the Request, the Council contacted United Living, who responded by email dated 20 December 2023 as follows:
“As per our discussion, a conversation was had with Symphony windows to measure at their risk the windows at the Dacres road blocks this was around Nov 22 as they was currently at Milford Towers installing windows, we gave them the specification which our designers had submitted to planning and asked them to measure only the tenanted properties and communal areas due to the leaseholders properties being in section 20, we had asked Symphony to measure these due to current inflation with materials as manufacturers will normally only hold there prices for around 3 months, due to leaseholder challenges with planning I believed the was crucial to carry on with measures to mitigate any uplift.”
[42]The Council was undoubtedly attempting to be helpful in obtaining this information. It is not, however, recorded information responsive to the Request at the time the Request was made, rather it was created after the Request in order to answer it.[43]The Council explained to the Commissioner that it was unable to confirm who contacted Symphony and when, even though Symphony had produced a brochure with sketches in September 2021; that the order was raised for surveys to be carried out on 30 October 2021, and the Council provided to the Commissioner a copy of the windows and sketches approved, manufactured and installed at “Dacres road”.[44]As we understand it, the works in question were overseen by United Living under contract. It is reasonable to assume that United Living would have made the first contact with Symphony; consequently, it is not obvious to us that the Council would hold the requested information or that it should have conducted searches for this information within its own information holdings. Unless United Living is holding the information on behalf of the Council, and there is no suggestion of that on the material before us, the Council is not obliged to require United Living to conduct searches of United Living’s information holdings.[45]The Appellant says that the response from United Living is contradicted by information supplied to her by the Council in response to a separate request from her for information dated 11 March 2024. The Commissioner asked the Council to explain the discrepancy in dates. The Council says it is unable to do so, and relies on the confirmation provided by United Living. It is not incumbent upon the Council as part of this appeal to explain a discrepancy between the information it provided in response to Question 5 and information provided by it to the Appellant in response to a different, and subsequent, request.[46]We do not find that the Commissioner erred in concluding that, on the balance of probabilities, the Council does not hold information responsive to Question 8. Question 9: Please provide copies of any communications with Symphony in relation to providing sketches for the replacement of windows at Ashleigh Point and other Dacres Estate blocks (job number 278, job reference SYM16556)” Council’s response:
“As above. Please see attached email for reference.”
[47]The Appellant complained to the Commissioner: "the response to question 8 provides verifiably incorrect information and the attached email chains do not provide copies of communications with Symphony, rather, the written recollection of a team member (that contradicts documents they have shared with residents).”[48]For the reasons we have already given, United Living’s email of 20 December 2023 was not recorded information responsive to the Request.[49]The Council explained its searches to the Commissioner as follows:a. It had supplied its internal emails to the Appellant recording a team member’s recollections, and no further recorded information is held.b. Searches were conducted on the SIAM drive, which would likely have yielded the information if it were held; the officer who carried out the search was unable to locate responsive information; no information would have been held in hard copy; the same officer also made direct enquiries of other members of staff in the SIAM team and in the Home Ownership Services team.c. The Council’s search terms were “Dacres Road”, “Ashleigh Crescent”, and a specific address in Ashleigh Crescent.[50]Question 9 does not identify whom the Appellant envisages as the other party to the requested communications with Symphony. In our view, given that United Living appear to have been contracted by the Council to carry out the works in question, United Living was most likely to be the entity which corresponded with Symphony but we accept that the Council may have been copied to relevant correspondence or received it on forwarding.[51]We are not satisfied that searches over the SIAM drive only were sufficient to identify any relevant communication by the Council with Symphony, if there was any. The words “any communications” in Question 9 are sufficiently broad, in our view, to have justified searches of relevant individual email accounts, assuming, as we must, that such accounts were not copied to, or stored on, the SIAM drive.[52]We also consider that such searches as were carried out may have been flawed by the erroneous reference to Ashleigh Crescent as opposed to Ashleigh Point.[53]We find that the Commissioner was wrong to conclude that, on the balance of probabilities, the Council does not hold information responsive to Question 9. Question 10: When did work start on the DACRES ROAD DEVELOPMENT UPDATE SEPTEMBER 2021 NEWSLETTER by the New Initiatives Team? Please provide documents or communications to evidence this.” Council’s response:
“The new initiative team have confirmed that the first draft of newsletter was 24th September 2021 and the final draft was 29th September 2021.”
[54]The Appellant complained to the Commissioner:
“NOT (QUITE) SATISFIED: does not answer question – does not state when work started on newsletter, only date when the first draft of the newsletter was created – this could have been weeks after work started on the newsletter.”
[55]The Council explained to the Commissioner that: there is no earlier information on when the work started on the September 2021 newsletter held on file; all information is held electronically on shared folders; there is a specific folder for newsletters in the Dacres electronic file that relates to the work New Initiatives were carrying out but not related to the specific works which are the subject of the request; there is no policy requirement that required this information to be held for a newsletter.[56]We are satisfied that the Council has made sufficient searches. The Appellant merely speculates that creation of the first draft of the newsletter could have been weeks after work started on the newsletter. It is, of course, correct, that Council employees would have been thinking about the content of the newsletter before the date of, indeed necessarily in order to prepare, the first draft but in all the circumstances we accept that the Council has fairly construed the question, and that it does not hold the requested information.[57]We find that the Commissioner was correct to conclude that, on the balance of probabilities, the Council does not hold information responsive to Question 10. Question 11: At what point did team members from the New Initiatives Team who developed the DACRES ROAD DEVELOPMENT UPDATE SEPTEMBER 2021 NEWSLETTER issue of the newsletter become aware of the plans for 'new roofs and windows, external redecorations and brickwork repairs' on Dacres Estate (including Ashleigh Point)? Please provide documents or communications to evidence this.” Council’s response:
“The above works were planned and included in the newsletter however, the works were confirmed after the surveys were carried out.”
[58]The Appellant complained to the Commissioner:
“NOT SATISFIED: does not answer the question nor provide documents or communications to evidence when the team became aware of the plans.”
[59]The Council explained to the Commissioner that: no additional information was held on the electronic file advising on when work on the first draft of the newsletter for September 2021 actually began; the electronic folder for “Newsletters” for Dacres (New Initiatives folder) was searched; there is no policy requirement that requires this information to be held for a newsletter.[60]We are satisfied that the Council’s searches for information responsive to Question 11 were sufficient. It does not seem unreasonable to us that the Council would not hold recorded information of when individual staff members became aware of the plans in question.[61]We find that the Commissioner was correct to conclude that, on the balance of probabilities, the Council does not hold information responsive to Question 11. Question 15: What communications did this department have with the Lewisham Homes Home Ownership Team prior to 21st September 2021? Please provide documents or communications to evidence this.” Council’s response:
“Please see attached dated notices confirming when communication between the two departments took place.”
[62]The Appellant complained to the Commissioner:
“NOT SATISFIED: the notices don’t provide information on when the Lewisham Homes Home Ownership team became aware of decisions regarding major works. They undoubtedly become aware well before the dates in the notices as they need to draw up the individual notices.”
[63]The Council explained to the Commissioner that there is no information held on electronic files recording meetings with the Lewisham Homes Home Ownership team. It additionally explained that there is no policy requirement that requires this information to be held for a newsletter. We think that this last observation has been supplied by the Council in relation to Question 15 in error, and, in fact, relates to Questions 10 and 11.[64]We observe that Question 15 does not identify the subject matter of the communications in respect of which the Appellant seeks information. It is the Appellant’s complaint to the Commissioner which makes clear that the information sought is when the Lewisham Homes Home Ownership team became aware of decisions regarding major works. It would appear that that is how the Council construed it.[65]The Council told the Commissioner that there is no information on electronic files regarding meetings with the Lewisham Homes home Ownership team, which in our view unduly narrows the request, which was for information about communications.[66]It is not clear from the Council’s statement to the Commissioner that there is no information held on electronic files recording meetings” that the Council has actually searched electronic files, and, if so, what those files are. In any event, we do not read the Council’s description of its searches for information about meetings communications to have included the email accounts of relevant individual members of staff. We consider that such searches should have been made.[67]Given our finding as to the unwarranted restriction of subject matter of the search, and the apparently limited scope of searches, we find that the Commissioner was wrong to conclude that, on the balance of probabilities, the Council does not hold information responsive to Question 15.

Allegation that the Council is motivated to withhold information

[68]The fact that we find in relation to three of the Appellant’s six questions (Question 5, 9 and 15) that the Council’s searches were not sufficient does not equate or translate to a finding that the Council has deliberately withheld responsive information from the Appellant.[69]We do not consider that the Appellant has established any motive for the Council withholding responsive information. The Appellant says that the Council is aware that the Appellant proposes to challenge the Council in relation to the accuracy of information it provided to the Appellant when she purchased her flat in 2021, which motivates the Council to withhold the requested information. We have seen no evidence of the proposed challenge or the Council’s awareness of it. We do not find the Council has any motive to withhold information.[70]We understand that the Appellant considers she has received inconsistent information from the Council in relation to the dates of contact with Symphony but that, of itself, is insufficient to demonstrate the motive alleged by the Appellant.[71]We have not identified any reluctance by the Council to search for the responsive information. Indeed, it is evident from the Council’s responses to the Appellant and to the Commissioner, that it has attempted to be helpful in the extent and scope of its searches, and its explanations of them. Our findings as to insufficient searches in some, limited respects do not detract from that.

Conclusion

[72]In relation to Questions 5, 9 and 15, we find that the Commissioner was wrong to be satisfied that, on the balance of probabilities, the Council does not hold the requested information, and to that extent only, the Decision Notice is not in accordance with the law.[73]The Council remains bound to answer Questions 5, 9 and 15 in compliance with the Council’s duties under s1(1) and s17(1) FOIA, i.e.:a. To inform the Appellant in writing whether it holds information of the description specified and, if that is the case, to communicate all that information to the Appellant; orb. If the Council relies on a claim that any information is exempt information, it must within the time for complying with s1 FOIA give the Appellant a notice which states that fact, specifies the exemption in question, and states why the exemption applies.[74]To be clear: we are not finding that the Council does hold the information requested, only that the Commissioner was not entitled to conclude that, on the balance of probabilities, the Council does not hold the requested information. Compliance by the Council with its duties under s1(1) and s17(1) FOIA may not result in the provision of responsive information to the Appellant.[75]We issue the substituted Decision Notice on the face of this judgment.