Julian Saunders v The Information Commissioner & Anor [2025] UKFTT 488 (GRC)

[2025] UKFTT 00488 (GRC)Case Reference: FT/EA/2024/0375
First-tier Tribunal
General Regulatory Chamber
Hearing Heard on: 31 January 2025Date 7 May 2025
Information Rights
Heard by Cloud Video Platform
Before
JUDGE STEPHEN ROPERMEMBER PIETER DE WAALMEMBER JO MURPHY
Between
JULIAN SAUNDERSAppellantTHE INFORMATION COMMISSIONERRespondentSANDWELL METROPOLITAN BOROUGH COUNCILRespondentin person for Appellant for First Respondent: did not appear and was not represented for Second Respondent: Robin Hopkins of CounselDecision: The appeal is DismissedREASONS

Preliminary matters

[1]In this decision, we use the following terms to denote the meanings shown: Appellant: Julian Saunders. COMF: The Contain Outbreak Management Fund. Commissioner: The Information Commissioner (the First Respondent). Council: Sandwell Metropolitan Borough Council (the Second Respondent). Decision Notice: The Decision Notice of the Commissioner dated 2 September 2024, reference IC-288349-C4L1, relating to the Request. Disclosed Information: The information which was disclosed by the Council in respect of the Request. FOIA: The Freedom of Information Act 2000. Request: The request for information made to the Council by the Appellant dated 27 October 2023, as set out in paragraph 5. Requested Information: The information which was requested by way of the Request. Respondents: The Commissioner and the Council. Tribunal Rules: The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009.[2]Unless the context otherwise requires (or as otherwise expressly stated), references in this decision:a. to numbered paragraphs are references to paragraphs of this decision so numbered;b. to any section are references to the applicable section of FOIA;c. to the Commissioner’s “investigation” mean the Commissioner’s investigation of the Appellant’s complaint, pursuant to section 50, relating to the Council’s response to the Request.

Introduction

[3]This was an appeal against the Decision Notice, which decided that (on the balance of probabilities) the Council did not hold any further information within the scope of the Request.

Background to the Appeal

[4]The background to the appeal is as follows. It may be helpful to first provide some context regarding COMF which was referred to in the Request. In connection with the Covid outbreak, the Government introduced COMF as “funding to local authorities in England to help reduce the spread of coronavirus and support local public health” www.gov.uk/government/publications/contain-outbreak-management-fund-2021-to-2022 . The Request[5]On 27 October 2023 (following an earlier request for information regarding the Council’s considerations and decision to buy two ‘youth buses’), the Appellant contacted the Council and requested information in the following terms: “Clarification 1 - there has been no documentation disclosed as to why this major capital expenditure was permitted under COMF but simply an assertion that this was permissible. Where is the documentation showing how this decision was arrived at please? Clarification 2 - has the contract for conversion been awarded yet and, if so, to whom and for how much please.”.[6]The Council responded on 31 October 2023, stating that it had already provided (in respect of the earlier request) the required clarifications.[7]The Appellant contacted the Council on 14 November 2023, requesting an internal review.[8]The Council responded on 15 November 2023, stating that it considered that the Request should be logged as a new request under FOIA. The Appellant replied on 21 November 2023, stating that he disagreed that it should be logged as a new request.[9]The Council responded on 19 December 2023. It disclosed information which it held within the scope of the Request, citing section 40(2) where redactions had been made in respect of third-party personal data. The Council also referred the Appellant to information which was already in the public domain for the second part of the Request and stated that it did not hold any further information within the scope of the Request.[10]On 3 January 2024, the Appellant contacted the Council querying its response. In particular, the Appellant considered that the Council must hold further information within the scope of the Request. This was on the basis that the Council had referred to a decision on the expenditure for the ‘youth buses’ being COMF compliant, having been taken by a Council officer (who was then no longer employed by the Council), and the Appellant considered that there must be documentation with regard to that decision.[11]The Council replied on 4 January 2024, reiterating its position that it had undertaken “appropriate, thorough and reasonable searches” in relation to the Request and that it did not hold any further information within the scope of the Request.[12]On 13 February 2024, the Appellant contacted the Council stating that it had disclosed information which referred to the use of COMF monies needing to be signed off by the Director of Public Health but that the Council had not disclosed that document.[13]The Appellant also contacted the Commissioner on 13 February 2024 to complain about the Council’s response to the Request. During the Commissioner’s investigation, additional correspondence took place between the Appellant and the Council regarding the Request and further information was disclosed by the Council, as set out below.[14]On 15 July 2024 the Council provided what it stated was an “updated” response. It provided further information within the scope of the Request, but maintained that section 40(2) applied to some of the Requested Information.[15]Following further correspondence from the Appellant, the Council provided its final response on 5 August 2024, setting out the conversion costs of each ‘youth bus’ (with regard to the second part of the Request).

The Decision Notice

[16]The Appellant’s complaint to the Commissioner related to the Appellant’s view that further information was still held by the Council within the scope of the Request. As the Appellant did not complain about the Council’s application of section 40(2) in redacting aspects of the Disclosed Information, the Commissioner considered that the scope of his investigation was to determine whether the Council (on the balance of probabilities) holds any additional information within the scope of the Request. The Commissioner accordingly did not address, in his investigation, the Council’s reliance on the exemption in section 40(2).[17]The Decision Notice recorded the explanations which the Council had provided to the Commissioner regarding searches and enquiries which the Council had made in respect of the Requested Information.[18]The Decision Notice also recorded the Appellant’s concerns that, notwithstanding the subsequent additional disclosure of information by the Council, the information released was still very limited, including an apparent lack of information or correspondence in respect of the involvement of the Director of Public Health and another Council Officer in the decision relating to the COMF funding expenditure. The Decision Notice noted that the Appellant had also stated that the Council had specifically stated that the Director of Public Health “approved” the relevant funding on 28 February 2023 but the documentation showing this approval had not been produced.[19]The Decision Notice stated that the Commissioner, having considered the Council’s searches and the Appellant’s further arguments, was satisfied that the Council does not (on the balance of probabilities) hold any additional information within the scope of the Request.[20]The Decision Notice also recorded the Commissioner’s finding that the Council Paragraphs 3 and 30 of the Decision Notice erroneously referred to the “Commission” in this regard, rather than the Council. breached section 10(1) and section 17(1) by failing to communicate the Requested Information or issue a refusal notice within 20 working days. The Decision Notice did not require the Council to take any steps. The appeal The grounds of appeal

The appeal

[21]The relevant material contention within the Appellant’s grounds of appeal was, in essence, that the Commissioner erred by concluding in the Decision Notice that no further information was held by the Council within the scope of the Request. In particular, the Appellant alleged that further information must be held by the Council because:a. it was a specific Government requirement that any application for COMF funding was signed by Directors of Public Health of local authorities, and no such signed application had been disclosed by the Council; andb. more than one person was involved in the COMF funding decision and consequently there would have been emails, phone calls and “social media app traffic” relating to this, but there had been no disclosure of any such documentation.[22]We would briefly note that the Appellant’s grounds of appeal addressed certain other matters, which we refer to in paragraph 34.

The Tribunal’s powers and role

[23]The powers of the Tribunal in determining this appeal are set out in section 58, as follows: “(1) If on an appeal under section 57 the Tribunal considers—(a) that the notice against which the appeal is brought is not in accordance with the law, or(b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently, the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal. (2) On such an appeal, the Tribunal may Review any finding of fact on which the notice in question was based.”.[24]In summary, therefore, the Tribunal’s remit for the purposes of this appeal was to consider whether the Decision Notice was in accordance with the law. In reaching its decision, the Tribunal may review any findings of fact on which the Decision Notice was based and the Tribunal may come to a different decision regarding those facts. Essentially, the Tribunal is empowered to undertake a ‘full merits review’ of the appeal before it (so far as the Decision Notice is concerned).

Mode of hearing

[25]The proceedings were held by the cloud video platform. The Tribunal Panel, the Appellant and Mr Hopkins (for the Council) joined remotely. The Tribunal was satisfied that it was fair and just to conduct the hearing in this way. The Commissioner did not appear and was not represented.[26]There were no interruptions of note during the hearing.

The evidence and submissions

[27]The Tribunal read and took account of an open bundle of evidence and pleadings, as well as the Council’s response to the appeal (which was not in the bundle but available to the Tribunal separately The Appellant’s reply to both of the Respondents’ responses to the appeal was included in the bundle. ).[28]All of the contents of the bundle, including all of the submissions of the parties (as well as the submissions of the Appellant and Mr Hopkins during the hearing), were taken into account, even if not directly referred to in this decision. The relevant statutory framework General principles

The relevant statutory framework

[29]Section 1(1) provides individuals with a general right of access to information held by public authorities. It provides: “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.”.[30]In essence, under section 1(1), a person who has requested information from a public authority is entitled to be informed in writing whether it holds that information. If the public authority does hold the requested information, that person is entitled to have that information communicated to them. However, those entitlements are subject to the other provisions of FOIA, including some exemptions and qualifications which may apply even if the requested information is held by the public authority (but those are not relevant for current purposes).

Section 10 - Time for compliance with request

[31]So far as is relevant for current purposes, section 10 provides:
“(1) … a public authority must comply with section 1(1) promptly and in any event not later than the twentieth working day following the date of receipt.”
.

Section 17 – Refusal of request

[32]So far as is relevant for current purposes, section 17 provides:
“(1) A public authority which, in relation to any request for information, is to any extent relying on a claim… that information is exempt information must, within the time for complying with section 1(1), give the applicant a notice which— (a) states that fact, (b) specifies the exemption in question, and (c) states (if that would not otherwise be apparent) why the exemption applies.”
. Discussion and findings Scope of the appeal

Discussion and findings

[33]The Appellant’s grounds of appeal did not challenge the Council’s application of section 40(2) in redacting aspects of the Disclosed Information(and which, as we noted, was not addressed in the Commissioner’s investigation leading to the Decision Notice). Our decision therefore addresses the Commissioner’s findings in the Decision Notice that the Council does not, on the balance of probabilities, hold any additional information within the scope of the Request (but see paragraph 61).[34]The Appellant’s grounds of appeal and/or his subsequent submissions (including during the hearing) also included allegations from the Appellant regarding matters such as:a. the conduct of the Commissioner’s staff towards the Appellant over several years (stating that the Information Commissioner’s Office “has an axe to grind when it comes to me”);b. the Council being “deeply corrupt”;c. the Council not recording information which they should (including using WhatsApp to avoid having records);d. the Council’s use of COMF funding being unlawful;e. the conduct of the Commissioner during his investigation, stating that the Commissioner had failed to communicate further with the Council following receipt of evidence provided by the Appellant during the investigation; andf. the conduct of the Commissioner in connection with other aspects of his interactions with the Appellant and the Council (separate from the Commissioner’s investigation and the Decision Notice), including with regard to the Commissioner failing to take prosecution action against the Council or its officers.[35]The scope of the Tribunal’s jurisdiction is as set out in paragraph 23 (and summarised in paragraph 24) and, in essence, relates to the lawfulness of the Decision Notice. Accordingly, other issues are beyond the Tribunal’s powers to determine and fall outside of the scope of the appeal.[36]Therefore the Tribunal’s jurisdiction does not extend to matters such as any allegations relating to any misconduct, dishonesty, impropriety or other wrongdoing by the Council. Accordingly, we have no power to consider or determine any such issues.[37]Likewise, the appeal cannot extend to matters regarding the conduct of the Commissioner’s investigation prior to the issue of a decision notice under section 50. Put another way, the Tribunal does not conduct a judicial review of the Commissioner’s activities. It is therefore outside of our remit to consider, or make any finding in respect of, the Commissioner’s conduct of his investigation leading to the Decision Notice.[38]However, as we have noted, the Tribunal may review any relevant findings of fact in the Decision Notice and may come to a different decision regarding those facts. Essentially, the Tribunal is empowered to undertake a ‘full merits review’ of the appeal before it (so far as the Decision Notice is concerned). That is what we have done. Whether any further information is held by the Council within the scope of

The Request

[39]We start by noting that, notwithstanding section 1(1), it is not the role of either the Commissioner or the Tribunal to determine conclusively (or, in other words, with certainty) whether or not information is actually held by a public authority for the purposes of that section. The Decision Notice correctly recorded that the legal test to be applied is the ‘balance of probabilities’ - in simple terms, this means that something is more likely than not to be the case. Accordingly, in determining whether or not information is held on the balance of probabilities, a decision is often reached based on an assessment of the adequacy of the public authority’s searches for the information (where relevant) and any other reasons explaining why the relevant information may not be held.[40]On a related point, we should likewise also note that the relevant legal test for current purposes is not whether the Council should hold the Requested Information. During the hearing, the Appellant stated that the Council should maintain proper records (asserting that it was “their fault and not his” if it did not). However, linked to our comments above about the Tribunal’s remit not extending to matters such as any wrongdoing by the Council, that is not a relevant point for the purposes of the appeal. So, for example, if a public authority has a statutory duty to maintain certain records but it does not do so, it is not the role of the Tribunal to consider or determine that issue (and we have no jurisdiction to do so). During the hearing, the Appellant commented that other First-tier Tribunal decisions had stated that they were not interested in the corruption of public authorities, which he said that he found surprising. However, those issues are simply not part of the jurisdiction of the First-tier Tribunal, for the reasons we have given.[41]We address below the material aspects of the Appellant’s arguments in support of his appeal, as well as those of the Council in resisting the appeal. In his response to the appeal, the Commissioner largely relied on the Decision Notice as setting out his findings and the reasons for those findings (but generally speaking the Commissioner’s position aligned with that of the Council).[42]In respect of part 1 of the Request (regarding the funding for the two ‘youth buses’), the Appellant stated in the hearing that the relevant question was how the Council came to the decision to approve the funding.[43]The Disclosed Information included a document entitled “Decisions of Cabinet Member for Children and Education”, dated 28 February 2023, which included the following text:
“Agreed that:- That approval be given to replace two diesel double deck buses using Contain (COVID) Outbreak Management Fund (COMF) funding to the total value of £515,990 plus VAT (£619,188).”
[44]That document also went on to set out (amongst other things) the authorisation to procure the supply and delivery of the ‘youth buses’ and the reasons for the decision.[45]Accordingly, with regard to the Appellant’s statement in the hearing as to the purpose of part 1 of the Request, the Appellant was therefore provided with information showing the decision being made and the reasons for it. However, the Appellant asserted in the hearing that the actual decision had been made a long time before that document, which he considered was just the authority to proceed to spend the money. However, in our view, that was just supposition on the part of the Appellant as there was no evidence to support his assertion.[46]The Disclosed Information included email correspondence, copies of meeting minutes, briefing notes, spreadsheet extracts, the decision document we referred to in paragraph 43 and a copy of a report pertaining to that decision (setting out recommendations and the reasons for them).[47]As we have noted, the Appellant’s grounds of appeal included his assertion that it was a specific requirement that any application for COMF funding was signed by Directors of Public Health of local authorities. The Appellant explained that, whilst the Disclosed Information included spreadsheets, there was no actual record of approval of the decision being signed off by the Council’s Director of Public Health.[48]The Disclosed Information included a spreadsheet (entitled “Extract from 28th February 2023 Spreadsheet presented to Leadership Team – Budget Board Meeting on 7th March 2023”) which included a line item (under the main heading “Covid Grants updated Feb 2023”) of “Youth Buses” and referencing COMF Funding. Under a column headed with the initials of the name of the Council’s (then) Director of Public Health and the term “Response”), it stated “Approved”. This was pointed out to the Appellant in the hearing and he accepted that he had not previously noticed that, but his view was nevertheless that nothing had been signed by the Director of Public Health.[49]Based on the Appellant’s assertion that it was a legal requirement for any application for COMF funding to be signed off by the Council’s Director of Public Health and no such signed application had been disclosed by the Council, the Appellant therefore stated in his grounds of appeal that, on this basis alone, the Decision Notice was “patently wrong” in concluding that no further information was held by the Council on the balance of probabilities. However, we consider that that argument is inherently flawed, because it presupposes that the Council had complied with that alleged legal obligation (which may not be the case – and see also paragraph 52).[50]Also, in contrast to that argument of the Appellant, the Appellant stated in the hearing that it was plain from the Disclosed Information that none of the Council’s staff had sought a legal opinion regarding the legality of the relevant COMF funding approval. For the reasons we have given, the legality or otherwise of the funding approval was not a matter for the Tribunal to determine. However, the Appellant therefore also acknowledged, in essence, that the Council may not have complied with its alleged legal obligations (which of course would therefore explain why it did not hold the relevant record which the Appellant previously considered it must do). Indeed, in the hearing the Appellant also conceded the possibility that the record didn’t exist. Likewise, the Appellant stated in his reply to the Respondents’ responses to the appeal: “Either the document exists or [the Director of Public Health] did not sign off on the scheme as required by law”.[51]As we noted earlier, the Appellant had also specifically pointed out to the Council in correspondence relating to the Request that no record of approval of the decision being signed off by the Council’s Director of Public Health had been disclosed, but the Council confirmed in response that no further information was held in that regard. Accordingly, the Council’s position was that it did not have a document showing the signed approval by its Director of Public Health. Mr Hopkins also confirmed during the hearing that there was no signed document.[52]Mr Hopkins also argued that the Appellant’s view of the legal position for the requirements for the relevant COMF funding approval was mistaken. Essentially, Mr Hopkins asserted that the correct requirement was for the COMF funding to be “signed off” and that this did not mean “signed” but rather just requiring approval. The Council’s position was therefore that it had complied with the relevant legal requirements. However, as we have stated, the legality or otherwise of the COMF funding approval was not a matter for the Tribunal to determine.[53]The Appellant raised various arguments regarding the nature and extent of the searches and enquiries which were made by the Council in respect of the Requested Information and he was questioned about those arguments during the hearing. In our view, the Appellant did not clearly identify what further and better searches could have been undertaken by the Council, other than to say (in essence) that he considered that searches should have been made with regard to certain named current and previous staff members of the Council.[54]Having considered the evidence before us regarding the nature and extent of the searches and enquiries which were made by the Council with regard to the Requested Information, we are satisfied that they were appropriate and sufficient, having regard to the specific subject matter of the Request. In our view, widening the searches as suggested by the Appellant would be disproportionate and unnecessary. Mr Hopkins submitted that section 12 was likely to become applicable if the searches which the Council were to undertake were so extended and we agree that that would be a possibility. Accordingly, in that hypothetical situation, the Council could cite section 12 as a possible exemption, such that the Appellant’s arguments about broader searches could be of no benefit to him in any event.[55]In short, we think that the searches and enquiries which the Council did make were reasonable and adequate and would have identified relevant documents within the scope of the Request. Further, we also consider that some of the searches and additional documents which were disclosed during the course of the Commissioner’s investigation went further than was necessary, given the wording of the Request for information showing how the decision for the relevant COMF expenditure was arrived at.[56]The Appellant commented that the Council had a history of stating that it did not hold requested information (not only in respect of the Request but with regard to other previous requests for information) and then later producing it. As we noted, this occurred in respect of the Request and accordingly we understand (and have taken into account) the Appellant’s concerns about the Council not providing information which is requested.[57]Mr Hopkins submitted that this was not a case where there was any indication that the Council had anything to hide. We agree with that, given the nature and extent of the Disclosed Information (and having regard to the wording of the Request). Indeed, as we have noted (paragraph 43) there was disclosure of the decision relating to the expenditure of the COMF funding for the youth buses and, if there was (as had been argued by the Appellant) a document with the signature of the Director of Public Health, then we can see no reason for the Council to not disclose that, on the basis that it would evidently assist the Council in respect of the Appellant’s specific allegations that the Council should have such a record by law.[58]For all of the above reasons, we find that (on the balance of probabilities) the Council had disclosed all relevant information within the scope of the Request.

Other observations

[59]We briefly include some other final observations.[60]The Appellant contended (including by reference to a separate appeal before the First-tier Tribunal) that members of the Council had used WhatsApp and other platforms and that they held discussions to avoid having information on record. However, as we have noted, we found that the searches and enquires made by the Council were sufficient and that pertinent information within the scope of the Request (including, in particular, the decision document we referred to in paragraph 43) had been disclosed to the Appellant. We would also reiterate that the appeal does not relate to whether or not the Council should hold any information and accordingly it was not for us to consider or determine whether Council staff were wrongly not recording any given information.[61]During the hearing, the Appellant made submissions in respect of redactions which had been made to the Disclosed Information. As we have noted, the Appellant had not raised these issues in his grounds of appeal (nor in his complaint to the Commissioner under section 50). We agree with the submissions of Mr Hopkins that it was not fair to the other parties or proportionate to raise those issues at that late stage, particularly having regard to the overriding objective in Rule 2 of the Tribunal Rules (and bearing in mind that the Appellant is an experienced user of the First-tier Tribunal). In part, this is because the Council had not had the opportunity to previously consider those arguments of the Appellant (and Mr Hopkins had not had the ability to take instructions on them) and likewise the Commissioner was not present at the hearing and had not been able to address those arguments. In any event, we do not consider that those points raised by the Appellant were material to the outcome of the appeal, given our other findings.[62]We find that the Commissioner was correct to find, in the Decision Notice, that the Council As previously noted, paragraphs 3 and 30 of the Decision Notice erroneously referred to the “Commission” in this regard, rather than the Council. breached section 10(1) and section 17(1) by failing to communicate the Requested Information or issue a refusal notice within 20 working days.

Final conclusions

[63]For all of the reasons we have given, we find that the Decision Notice did not involve an error of law in concluding that the Council did not (on the balance of probabilities) hold any further information within the scope of the Request.[64]We therefore dismiss the appeal.