Martin Paul Fowler v The Information Commissioner [2025] UKFTT 678 (GRC)

[2025] UKFTT 00678 (GRC)Case Reference: FT/EA/2024/0285
First-tier Tribunal
(General Regulatory Chamber)
Hearing Heard on the papers: 17 April 2025Date 12 June 2025
Information Rights
Before
TRIBUNAL JUDGE FOSSTRIBUNAL MEMBER YATESTRIBUNAL MEMBER TAYLOR
Between
MARTIN PAUL FOWLERAppellantTHE INFORMATION COMMISSIONERRespondentunrepresented for Appellant for First Respondent: Information Commissioner’s officeDecision:The appeal is Allowed in part.Substituted Decision:Brighton & Hove City Council must, within 35 days of promulgation of this judgment, inform the Appellant in writing whether it holds the information listed in the Annex to this judgment, 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 of the information is exempt from disclosure, 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 Decision Notice Reference: IC-292795-T2Q8 dated 1 July 2024, in which the Information Commissioner (“the Commissioner”) decided that Brighton & Hove City Council (“the Council”) has provided to the Appellant all the information which the Council holds responsive to the Appellant’s request for information relating to the Council’s parking enforcement policy.[2]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.

The Request

[3]On 9 November 2023 the Appellant made the following multi-part requests of the Council pursuant to the Freedom of Information Act 2000 (“FOIA”). Request 1: as at 25 July 2022:a. copies of the papers that touch upon the desirability or otherwise of the Council adopting a parking enforcement policy;b. copies of the papers that concern the legislative framework that should govern or inform the parking enforcement policy to be adopted by the Council;c. copies of the consultation papers prepared to assist consideration of the parking enforcement policy to be adopted by the Council;d. copies of the impact assessments prepared to ensure that the parking enforcement policy to be adopted by the Council could not discriminate unfairly against any section of the population;e. a copy of the final draft of the parking enforcement policy adopted by the Council, to include the definitions of the terms used in that draft;f. details of the sign-off of the parking enforcement policy adopted by the Council, the level of seniority of the person who signed off on the policy; whether they had the personal authority to sign off on that policy, or whether they signed off on that policy following a resolution of Councillors; and the inception date of the Council’s parking enforcement policy?g. copies of the instructions given by the Council to those who are entrusted to act in respect of parking enforcement on public highways on behalf of the Council?[4]The Appellant asked for additional information. These requests were not articulated expressly as FOIA requests, but they seem to us to fall naturally to be considered as part of Request 1, and we address them accordingly (“Additional Request 1”).a. Where the documents sought by Request 1 are not available, confirmation whether they ever existed;b. Where they existed but are not available, the reason why they are not available.c. Where they never existed, the reason for their absence, which we take to mean the reason why they were never created.d. copies of any documents that concern amendments proposed or made to the Council’s parking enforcement policy between 25 July 2022 and the date of Request 1 (9 November 2023).[5]The Appellant further indicated that the Council “may wish to include a line or two” explaining possible differences between, and matters relating to, the content of the information requested by the Appellant and the Council’s parking enforcement in practice. We do not read these as FOIA requests, rather an invitation to the Council in its discretion to respond. We do not, therefore, address them further. Request 2: as at 31 May 2017:a. Copies of the papers that touch upon the desirability or otherwise of the Council having a policy for the marking of dropped kerbs with white return lines.b. Copies of the papers that concern the legislative framework that should govern or inform the Council’s policy for the marking dropped kerbs with white return lines.c. Copies of the consultation papers prepared to assist consideration of the policy to be adopted by the Council for the marking of dropped kerbs with white return lines.d. Copies of the impact assessments prepared to ensure that the policy to be adopted by the Council for the marking of dropped kerbs with white return lines could not discriminate unfairly against any section of the population.e. A copy of the final draft of the Council’s policy for the marking of dropped kerbs with white return lines, to include the definitions of the terms used in that draft.f. Details of the sign-off of the Council’s policy for the marking of dropped kerbs with white return lines; the level of seniority of the person who signed off on that policy; whether they had the personal authority to sign off on that policy, or whether they signed off on that policy following a resolution of Councillors; and the inception date of the Council’s policy for the marking of dropped kerbs with white return lines.g. Any documents that concern amendments made to the Council’s policy for the marking of dropped kerbs with white return lines between 31 May 2017 and the date of Request 2 (9 November 2023).[6]The Appellant asked for additional information. These requests were not articulated expressly as FOIA requests, but they seem to us to fall naturally to be considered as part of Request 2, and we address them accordingly (“Additional Request 2”):a. Where the documents sought by Request 2 are not available, confirmation whether they ever existed;b. Where they existed but are not available, the reason why they are not available.c. Where they never existed, the reason for their absence, which we take to mean the reason why they were never created.[7]The Appellant further indicated that the Council “may wish to include a line or two” explaining why the Council had ignored an enquiry from the Appellant on 8 June 2023 about white return lines, and why what the Council had told the Appellant by telephone on 31 May 2017 was at variance with the Council’s policy as at that date, if, in fact, there was a variance. We do not read these as FOIA requests, rather an invitation to the Council in its discretion to respond. We do not, therefore, address them further.[8]In the same letter as contained Requests 1 and 2 and Additional Requests 1 and 2, the Appellant made several observations about the Council’s Corporate Complaints Procedure and made a separate FOIA request in relation to that. That issue is not relevant to this appeal, and we do not address it further.

The Council’s Response

[9]On 28 November 2023, the Council responded.

Request 1 and Additional Request 1

[10]In relation to Request 1 item a., the Council said this:
“When there is a change to enforcement practices, these are discussed at committee such as Item 28 Double parking and dropped footway enforcement (brighton-hove.gov.uk). We do not have a parking enforcement policy in place. There is the legal principle of ‘de minimis’. This applies to any minor infringement of the regulations such as a vehicle with one wheel on a double yellow line, out of bay markings, slightly over a dropped kerb etc. We therefore do not have any documents to share. It is the responsibility of the Civil Enforcement Officer (CEO) to make a judgment as to whether this applies on a case by case basis and whether a Penalty Charge Notice (PCN) should or should not be issued. PCN’s can be appealed, and adjudicators can and do accept appeals made on the grounds that the infringement is ‘de minimus’ [sic] and should not have been issued. Other parking policies are in place for permit types and car free developments: Brighton & Hove City Council - Decision - Parking Policies Update Report (brighton-hove.gov.uk)”
[11]In relation to Request 1 items b. - f., the Council simply said: “Not applicable”.[12]In relation to Request 1 item g., the Council said:
“Please refer to the Traffic Management Act 2004”
. The Council supplied a link to that legislation.[13]In response to Additional Request 1 item a., and b., the Council said:
“As above, enforcement policy is not required.”
[14]In response to Additional Request 1 items c. and d., the Council said: “Not applicable”.

Request 2 and Additional Request 2

[15]In response to Request 2 item a., the Council said this:
“As stated above, an enforcement policy did not apply. However, guidance in the form of ‘a third of a vehicle’ causing an obstruction was in place. However this wasn’t always effective as it was dependent on vehicle size and didn’t consider the impacts caused by parking. CEO’s are now advised to use their judgment based on the severity of an obstruction.”
[16]In response to the balance of lettered items in Request 2, the Council simply said: “Not applicable”.[17]In response to Additional Request 2 items a. - c., the Council simply said: “Not applicable”.[18]On 11 January 2024, the Appellant sent to the Council a 23-page request for an internal review of the Council’s responses.[19]On 9 February 2024, the Council maintained its position on internal review. The Council explained that:
“Freedom of Information requests are for recorded information that the council holds. We do not have to answer your question if this would mean creating new information or giving an opinion or judgment that is not already recorded. This means if an answer to a question isn’t recorded, we don’t have to provide the information, even though someone may have the answer in their head. The council provided a response to those parts of your request for which there was recorded information and provided links to publicly available information.”
[20]The Council maintained that its response had fully addressed the valid elements of the Requests and was compliant with FOIA, the “further points and questions” not being within the scope of FOIA.[21]On 5 March 2024, the Appellant complained to the Commissioner. The Commissioner investigated. He asked the Appellant to confine the scope of his complaint to the parts of the Requests about which the Appellant was most concerned. He then directed the Council to address those aspects of the complaint and issue a new response which confirmed or denied whether information was held, and, if it was, disclose that information to the Appellant.[22]Accordingly, the Council responded to the Appellant’s refined complaint as set out below, the Council’s response following on from the refined complaints as we set them out: a. Request 1 (as refined):
“1 I believe that the Council has met none of its obligations under the freedom of information legislation in respect of my first information request: namely, for copies of the papers that touch upon the desirability or otherwise of the Council adopting a parking enforcement policy &c .. The Council has denied that it operates a parking enforcement policy, although the communications that I have received not only from the Council's agents but also from the Council itself clearly indicate the existence of a system of protocols that serve to moderate the way in which the Council enforces the Traffic Management Act 2006: that is to say, a parking enforcement policy. The Council has failed to provide full details of that parking enforcement policy, and has also failed to explain the problems that appear - from such information as has been provided to me - inherent in that parking enforcement policy. Rather, the Council has simply continued to deny that it operates a parking enforcement policy. That is to say, it has not sought to explain how it can, on its own showing and that of its agents, operate a system of protocols that serve to moderate the way in which the Council enforces the Traffic Management Act 2006, yet still deny that it operates a parking enforcement policy. The Council's denial that it operates a parking enforcement policy did not address my first information request. The Council could - indeed, under the non-mandatory Statutory Guidance to the Traffic Management Act 2006, should - have undertaken consultation and consideration of a parking enforcement policy, and yet still decided against introducing such a policy. The details of any such consultation and consideration would, I suggest, fall within the scope of my first information request." The Council’s response: “The council does not have a Parking Enforcement Policy. Enforcement officers have a training manual which sets out what enforcement officers need to produce in evidence to prove a contravention has taken place before issuing a PCN. Such as logging tyre valve positions to prove that a vehicle has not moved during a maximum stay period, photos, who is exempt such as emergency vehicles etc. Enforcement officers are asked to use their own judgement as to whether a vehicle is parked in such a way as to constitute it being parked across a dropped kerb sufficiently for a PCN to be issued or not. But we don't have a policy saying for example if it's 10cm over then a PCN should be issued but if it's less it's not a contravention, as it could be a very wide dropped kerb with no impact on access, so every case has to be dealt with on its merits and we don't have a policy. Enforcement officers are made aware of the legal principle of ‘de minimis’ in their training. This applies to any minor infringement of the regulations such as a vehicle with one wheel on a double yellow line, out of bay markings, slightly over a dropped kerb etc. The concept of ‘de minimis’ is a long-standing legal principle of a technicality that is so small that it doesn’t warrant enforcement. It is not a policy that the council has devised but a principle of law. When appeals are made to the independent parking adju8icateor, who are lawyers, they can review PCN case and cancel them because they feel for example that the car is just parked a few centimetres over the yellow line/dropped kerb which is insufficient in their view for a Penalty Charge Notice to be upheld.” b. Request 2 (as refined): “2 I believe that the Council has met none of its obligations under the freedom of information legislation in respect of my second information request: namely, for copies of the papers that touch upon the desirability or otherwise of the Council having a policy for the marking of dropped kerbs with white return lines &c..”
The Council’s response: When there is a change to enforcement practices, these are discussed at committee and are publicly available on the Council’s website as Item 28 Double parking and dropped footway enforcement (birhgton-hove.gove.uk). The agenda, decision and minutes of the Environment, Transport & Sustainability Committee are publicly available via Brighton & Hove City Council-Browse meetings- Environment, Transport & Sustainability Committee (brighton-hove.gov.uk). The latest Parking Policies Update Report is publicly available via Brighton & Hove City Council – Decision- Parkin Policies Update report (brighton-hove.gov.uk).”

The Decision Notice

[23]On 1 July 2024, the Commissioner decided that, on the balance of probabilities, the Council had provided the Appellant with all the relevant information it holds and required no further steps to be taken by the Council.

The Appeal

[24]By Notice of Appeal dated 25 July 2024, the Appellant submitted grounds of appeal extending to 18 pages. We have considered the totality of those grounds carefully. Their thrust, in summary, is that the Council did not answer the precise elements of the Requests, statements made by the Council and its agents indicate that a relevant parking enforcement policy has been, or is, in operation which contradicts the Council’s responses to the Requests, specifically, that it does not have a parking enforcement policy in place, and that there are numerous inconsistencies, deficiencies and errors in the Council’s approach to parking enforcement.[25]By Response to the appeal, dated 29 August 2024, the Commissioner submits, in summary, that:a. It is not the Commissioner's role to adjudicate on the question of whether the Council should have a parking policy or to otherwise comment on the Council’s approach to parking enforcement matters.b. The Commissioner was correct to accept the Council’s representations to him; the Council has co-operated fully with the Commissioner’s investigation; there is no reason to believe that the Council has sought to mislead the Appellant or the Commissioner regarding the information it does not hold which falls within scope of the Requests; the doubts raised by the Appellant lack the substantiation to change the Commissioner’s findings.c. The Appellant’s criticisms of the Council’s approach to parking enforcement fall outwith the Commissioner’s and the Tribunal’s jurisdiction.d. The Commissioner stands by the Decision Notice.[26]By a Reply to the Commissioner’s Response, dated 13 September 2024, the totality of which we have also considered carefully, the Appellant persisted in his criticisms of the Council both as to its responses to the Requests, and its approach to parking enforcement.

The legal framework

[27]The relevant provisions of FOIA are as follows: Section 1 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. Section 58 Determination of appeals (1) If on an appeal under section 57 the Tribunal considers- (a) that the notice against which the appeal is brought is not in accordance with the law, or (b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently, the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal.(2) On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based.[28]The import of s58 FOIA is that the right of appeal to the First-tier Tribunal involves a full merits consideration of whether, on the facts and the law, the public authority’s response to the Request is in accordance with Part 1 of FOIA (Information Commissioner v Malnick and ACOBA [2018] UKUT 72 (AAC); [2018] AACR 29, at paragraphs [45]-[46] and [90]. The Tribunal has jurisdiction to decide, de novo on the merits, whether the Commissioner’s decision is in accordance with the law.

Analysis

[29]It is no part of the Tribunal’s jurisdiction to determine whether the Council should have any parking enforcement policy, or the lawfulness of its parking enforcement operations either in any specific case or generally.[30]The Tribunal’s jurisdiction is to oversee the correct application of FOIA, and to determine the lawfulness of the Council’s responses to the Requests. For that reason, we do not address separately in our analysis the refined responses provided by the Council on 19 June 2024. We are considering only the Council’s original responses of 28 November 2023.[31]We observe at the outset that FOIA does not entitle a person to copies of a document, only to information. Although a person may request the provision of information to them in a specific format, that is a separate issue, which does not arise in the instant case.[32]Although the Council was undoubtedly attempting to assist the Appellant by its responses, we find that the Council’s responses were not in accordance with s1 FOIA in relation to:a. Requests 1 items a., c., d., e., f. and g.b. Request 2 items a., c., d., e., f. and g.c. Additional Request 1 items a., andd. d. Additional Request 2 item a.[33]We so find because s1 FOIA required the Council to confirm to the Appellant in writing whether it holds information of the description specified in each relevant request. Although the Council started its responses by saying “We can confirm that the information requested is held by the Council”, in fact, it went on to provide a response to Request 1 item a. which did not address what the Appellant requested, and a response to Request 1 overall whose impression was that the Council does not hold much, if not all, of the information sought by any relevant part of Request 1.[34]For example, by reference to Request 1. item a: if, as we understand it, the Council does not hold information which existed as at 25 July 2022, touching upon the desirability or otherwise of the Council adopting a parking enforcement policy, the Council should have confirmed that precise information in writing to the Appellant. As it was, the Council stated, in the present tense, that “We do not have a parking enforcement policy in place.” It may be correct that either in November 2023 or in July 2022, the Council did not have a parking enforcement policy in place, but that is not information which Request 1 item a. sought.[35]Absent the existence of the information requested, we fully see that the response which the Council did provide to Request 1 item a. may have been intended to be a helpful explanation to the Appellant. In short, it seems to us that what the Council was saying was “Your question assumes A, B and C but it is not the relevant or right question because the position is, in fact, X, Y and Z.” However, the Council’s response was not, strictly, compliant with the requirements of s1 FOIA, did not answer the specific question, and, in any event, as articulated was wrongly predicated on the then current position, not the position as at 25 July 2022.[36]By extension: a response which read “Not applicable” was not compliant with s1 FOIA, even if, in certain cases, it was thought to be the logical consequence of the Council’s response that it did not have a parking enforcement policy in place.[37]We do not, however, find that the Council has failed to discharge its obligations pursuant to s1 FOIA in relation to the following requests for the following reasons:a. Request 1 itemb. and Request 2 item b.: FOIA does not require a public authority to explain what laws should govern or inform its policies, only to confirm whether it holds recorded information responsive to a request, and, if it does hold it, to provide it, subject to any applicable exemption under FOIA. b. Additional Request 1 items b. andc. and Additional Request 2 items b. and c.: FOIA does not require a public authority to explain why recorded information is not available or, if it never existed, why that is the case.[38]We are not in a position to move on to consider whether, on the balance of probabilities, the Council holds information within scope of Request 1 because its responses to Request 1 both to the Appellant and the Commissioner were framed by reference to the position as at the date of its response, 28 November 2023, not 25 July 2022 which was the date by which the Appellant framed Request 1. It may well be that the Council’s response to Request 1, offered by reference to a request for information in existence sixteen months earlier, that is to say, as at 25 July 2022, would be that it does not hold information responsive to the request, but we cannot assume it.[39]In relation to Request 2, the Council stated, referring to its response to Request 1, that “As stated above, an enforcement policy did not apply.” Use of the word “did” might be taken to indicate that the Council was framing its response by reference to 31 May 2017, but the fact that it says “As stated above”, referring to its present tense answer to Request 1, leaves open whether it was, in fact, referring to the position in November 2023 rather than May 2017.[40]It is not obvious to us that responding to Requests 1 or 2 by reference to time frames different from those stipulated by the Appellant might not make a substantive difference to the issue of whether responsive information is held. It may do: we note, for example, that the Council’s response to Request 2 item a. did indicate that there had been a change in guidance, if not a policy, between 31 May 2017 and some subsequent, unidentified date.[41]For the same reasons as apply in relation to Request 1, we are not able to move on to consider whether, on the balance of probabilities, the Council holds information within scope of Request 2.[42]Moreover, even assuming that the Council’s responses to the Requests were made by reference to the time frame stipulated by the Appellant, there is no evidence before us as to what enquiries or searches the Council may have undertaken as to what responsive information it holds. We accept that if the Council thought that the Requests were based on a false premise, and if, as may be the case, the Council was, in any event, more focused on responding to the Appellant’s criticisms of its approach to parking enforcement, which formed the bedrock of the Requests, the Council may not have thought it necessary to conduct searches for potentially responsive information. Nevertheless, in a situation where a public authority confirms that it does not hold requested information, we would generally expect a public authority to identify any searches it has undertaken for responsive information or to explain why such searches were not necessary or appropriate. We have not seen such an account.

Conclusion

[43]We have noted the allegations made by the Appellant in his correspondence with the Commissioner that the Council’s intention appears to have been to conceal or to obfuscate details of the Council’s parking enforcement policy suggesting that: neither the Council nor its agents subscribe to the principle of transparency which underpins the freedom of information legislation; some benefit must accrue to the Council and/or its agents to make that concealment and obfuscation worthwhile; it must be considered that it is possible to hide the fact that concealment and obfuscation have taken place or that, if those were to come to light, any consequent loss or disadvantage would be considered “a price worth paying”.[44]Having carefully reviewed all the material before us, we can see no basis for any such allegations.[45]It is the case the Council did not respond directly to the precise content of certain parts of the Requests, and, for the reasons we have found, did not discharge its obligations pursuant to s1 FOIA at least in the form of its responses, but there is nothing to suggest any wilful default by the Council in that regard.[46]We find that the Council did not discharge its obligations pursuant to s1 FOIA, and that the Commissioner was not entitled to decide that, on the balance of probabilities, the Council does not hold the information sought by the following:a. Requests 1 items a., c., d., e., f. and g.b. Request 2 items a., c., d., e., f. and g.c. Additional Request 1 items a., andd. d. Additional Request 2 item a.[47]To that extent only the Decision Notice is not in accordance with the law.[48]We substitute the Decision Notice on the face of this judgment.[49]To be clear: we are not finding that the Council does hold the requested information, 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 FOIA in responding to those parts of the Requests identified at paragraph 46 above, may not result in the provision of responsive information to the Appellant either because the Council does not hold it or because it is exempt from disclosure under other provisions of FOIA. Signed: Judge Foss Dated: 9 June 2025

ANNEX A

[1]information in existence as at 25 July 2022 which relates to the desirability or otherwise of the Council adopting a parking enforcement policy;[2]any consultation papers in existence as at 25 July 2022 prepared to assist consideration of a parking enforcement policy to be adopted by the Council;[3]any impact assessments in existence as at 25 July 2022 prepared to ensure that any parking enforcement policy to be adopted by the Council could not discriminate unfairly against any section of the population;[4]the final draft of any parking enforcement policy adopted by the Council after the consultation and impact assessments described above, including the definitions of the terms used in that draft;[5]details of the sign-off of such parking enforcement policy adopted by the Council, the level of seniority of the person who signed off on the policy; whether they had the personal authority to sign off on that policy, or whether they signed off on that policy following a resolution of Councillors; and the inception date of any such policy;[6]the instructions given by the Council as at 25 July 2022 to its officers or agents who enforce parking on public highways on behalf of the Council;[7]whether any of the above information ever existed, if the Council does not hold it now;[8]any information relating to amendments proposed or made to any parking enforcement policy adopted by the Council between 25 July 2022 and 9 November 2023;[9]information in existence as at 31 May 2017 which relates to the desirability or otherwise of the Council having a policy for the marking of dropped kerbs with white return lines;[10]any consultation papers in existence as at 31 May 2017 prepared to assist consideration of a policy to be adopted by the Council for the marking of dropped kerbs with white return lines;[11]any impact assessments in existence as at 31 May 2017 prepared to ensure that any policy to be adopted by the Council for the marking of dropped kerbs with white return lines could not discriminate unfairly against any section of the population;[12]the final draft of any policy adopted by the Council for the marking of dropped kerbs with white return lines, to include the definitions of the terms used in that draft;[13]details of the sign-off of such policy adopted by the Council for the marking of dropped kerbs with white return lines; the level of seniority of the person who signed off on that policy; whether they had the personal authority to sign off on that policy, or whether they signed off on that policy following a resolution of Councillors; and the inception date of any such policy;[14]whether any of the above information ever existed, if the Council does not hold it now;[15]any information relating to amendments made to any policy adopted by the Council for the marking of dropped kerbs with white return lines between 31 May 2017 and 9 November 2023.