JUDGE SOPhiE BUckleyMEMBER RAZ EDWARDSMEMBER KATE GRIMLEY EVANS
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LIAM HARRONAppellantThe Information commissionerRespondentROTHERHAM METROPOLITAN BOROUGH COUNCILRespondentIn person for Appellant for First Respondent: Did not appear for Second Respondent: Mr Knibbe (Counsel)Decision: The appeal is Allowed.The Substitute Decision
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The Tribunal is not satisfied, on the balance of probabilities, that the public authority held no further information within the scope of the request.The Tribunal requires the public authority to take the following steps to ensure compliance with the legislation:a.The public authority shall make a fresh response to the Appellant’s request for information which will be subject to the rights given under section 50 of the Freedom of Information Act 2000 to make a new complaint to the Information Commissioner.
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The public authority must take these steps within 35 calendar days of the date on which the Commissioner sends them notification of this decision in accordance with the Direction below.Failure to comply with this decision may result in the Tribunal making written certification of this fact pursuant to section 61 of the Act and may be dealt with as a contempt of court.REASONS
Introduction
[1]This is an appeal against the Commissioner’s decision notice IC-340645-J2Z8 of 28 January 2025 which held that Rotherham Metropolitan Borough Council (the Council) did not hold any further information within the scope of a request for information made under the Freedom of Information Act 2000 (FOIA). The Commissioner found that the Council had breached section 10 FOIA.[2]The Commissioner did not require the public authority to take any steps.
Background to the appeal and the request
[3]On 13 January 2022 Mr Harron made a request to the Council for:
“a copy of the communications with the Leader of Rotherham Metropolitan Borough Council (RMBC), Chris Read, about statements to the media connected to the email sent to the Chief Executive of RMBC (Sharon Kemp) at 3.44 pm on 23.8.16.”
[4]On 7 February 2022, the Council said in its response that it had searched for emails sent or received between 20 and 27 August 2016 (inclusive) containing both “sharon.kemp@rotherham.gov.uk” and “chris.read@rotherham.gov.uk” and that no relevant emails had been identified, so that the Council did not hold any relevant information. The Council upheld that response in an internal review decision dated 27 April 2022.[5]Mr Harron submitted a complaint to the Commissioner about the Council’s handling of the request. On 23 November 2022 the Commissioner issued a decision notice IC-172053-T2X6 which held that the search was inadequate on the grounds that it was limited to electronic records, limited to records held in the Council’s email system rather than in its electronic network folders, and limited to emails containing the two identified email addresses. The Commissioner therefore required that the Council issue a fresh response based on broader searches or an adequate refusal notice.[6]On 22 December 2022 the Council provided a new response, refusing the request under section 14 (vexatious requests). This response was the subject of a further decision notice issued by the Commissioner IC-211882-K3V2 which upheld the Council’s application of section 14.[7]Following a successful appeal to the First-tier Tribunal (Information Rights) (EA/2023/0169 promulgated on 24 June 2024) the First-tier Tribunal issued a substituted decision notice which directed the Council to provide a new response to the request which did not rely on section 14.[8]This appeal is concerned with the Council’s new response to the Request which was made on 12 July 2024.
The new response
[9]The Council provided a new response on 12 July 2024, stating that it did not hold the requested information. The response explained that it had searched its network folder as well as its email system for an extended date range (of 20 August to 2 September 2016) and had also searched its paper records. This was upheld on internal review, in which the Council said that further searches using the date range suggested by Mr Harron of 13 August to 9 September 2016 had produced no information in scope of the request.[10]During the Commissioner’s investigation the Commissioner reached the view that an email dated 2 September 2016, which had already been provided to Mr Harron in response to another request, was in scope of this request and was held at the relevant date. The Commissioner directed the Council to provide a copy of that email to Mr Harron and the Council did so on 23 January 2025. The decision notice[11]In a decision notice dated 28 January 2025 the Commissioner decided that the Council held no further information within the scope of the request on the balance of probabilities. The Commissioner held that in disclosing the email of 2 September 2016 outside the time for compliance the Council was in breach of section 10(1) FOIA. Notice of appeal[12]The tribunal understands that the grounds of appeal are, in essence, that the Commissioner was wrong to conclude that no information was held.[13]The tribunal observes that the grounds of appeal focus largely on matters outside the tribunal’s jurisdiction in this appeal, such as the adequacy of the Commissioner’s investigation, the reasons contained in the decision notice and broader failings by the Council.[14]The tribunal notes that the grounds of appeal refer to an application for certification of contempt but that is not in issue in this appeal.
The Commissioner’s response
[15]The Commissioner relied on the decision notice. He submitted that the other matters raised in the grounds of appeal are outside the tribunal’s jurisdiction.
The Council’s response
[16]The Council submitted that it has conducted thorough searches of its email system, which is the most likely repository because the request relates to communications. For the purposes of preparing for the appeal the Council said that it has carried out further searches using the following additional search terms which have produced no additional information within scope:a. "Chris.read@rotherham.gov.uk" AND "Jayne" AND "Swinton Lock";b. "Chris.read@rotherham.gov.uk" AND "Swinton Lock" AND "Sheffield Star";c. "Chris.read@rotherham.gov.uk" AND "Swinton Lock" AND "Radio Sheffield";d. "Chris.read@rotherham.gov.uk" AND "Chris Burn" AND "Swinton Lock"; ande. "Chris.read@rotherham.gov.uk" AND "Yorkshire Post" AND "Swinton Lock".[17]The Council said that it had carried out appropriate searches of its other document repositories. The Council said that it does not have the technical ability to undertake keyword searches of the content of documents stored in its electronic network drives; any keyword searches of the content of those drives respond only to the titles of documents stored in those drives. Accordingly, in order to respond to Mr Harron’s request, the Council commissioned officers to carry out “manual” reviews of the content of the network drives which were considered most likely to contain responsive information. Specifically, the Council commissioned administrative staff working in the offices of Cllr Read and of the Chief Executive of the Council to carry out those searches. The same staff were asked to search for responsive information stored in the Council’s paper files in the same way. 18. For the purposes of preparing its response to the appeal the Council said that it has again commissioned administrative staff working in the offices of Cllr Read and of the Chief Executive of the Council to search both paper files and locally held electronic files for information responsive to each of the additional searches referred to in (a)-(d) above. It said that no further responsive documents had been identified. The role of the tribunal[19]The tribunal’s jurisdiction is governed by section 58 FOIA. This requires the tribunal to consider whether the decision made by the Commissioner is in accordance with the law or, where the Commissioner’s decision involved exercising discretion, whether he should have exercised it differently. The tribunal may receive evidence that was not before the Commissioner and may make different findings of fact from the Commissioner. Issues[20]The issue for the tribunal to determine is: 20.1. On the balance of probabilities did the Council hold any further information within the scope of the request? Evidence and submissions[21]We read and took account of a bundle and oral submissions from the appellant and Mr Knibbe for the respondent. We read a witness statement from Sam Ulyatt, information governance manager for the Council. Written submissions following the hearing[22]Following the hearing and before concluding our deliberations the tribunal ordered the second respondent to provide further information and submissions in relation to two issues: first, to explain the extent to which deleted emails are retained and searchable and second to explain how an email sent from Mandy Atkinson at 08.44 on 2 September 2016 (‘the Atkinson email’) was located in the searches for FOI-1020-21/22, noting that Mandy Atkinson’s email account was deleted in about 2018.[23]The second respondent provided a response to that order by way of submissions from Mr Knibbe dated 12 June 2026. The second respondent provided the required explanation but also stated as follows: “18. … for the purposes of preparing this document the Council has reviewed again the searches which it carried out when responding to the FOIA request in issue in this appeal. By means of that review the Council has discovered that the email searches which it carried out in July and August 2024 for the purposes of responding to the FOIA request in issue in this appeal were limited due to an error of interpretation. In particular:a. the email search which the Council described in its FOIA Response dated 12 July 2024 was for “any email sent or received between (and including) the dates of 20/08/16 and [2/09/2016] that contains the following terms: “sharon.kemp@rotherham.gov.uk” and “Chris.read@rotherham.gov.uk” (Hearing Bundle, pp. 191, 196); andb. the email search which the Council described in Internal Review Decision dated 23 August 2024 was for the same parameters, but with an expanded date range of 13 August 2016 to 9 September 2016 (Hearing Bundle, pp. 199, 201);c. however the searches which the Council in fact carried out were for communications between the two email addresses specified, within the relevant time frames. This is shown by the emails provided with these submissions as Appendices 1a and 1b, by which the relevant officer within the Council commissioned the email searches. This was a more limited search than the search described in the Council’s FOIA Response and Internal Review Decision, which would also have captured emails within the relevant date ranges to which both Sharon Kemp and Chris Read were copied – such as the Atkinson Email. 20. By reason of these searches which the Council had carried out, when Mr Harron brought the Atkinson Email to the attention of the Information Commissioner, the Council asserted that the Atkinson Email was no longer held in its email systems (and in any event the Council did not consider it to be responsive) (Email to the Commissioner dated 9 January 2025 – Hearing Bundle pp. 399, 402). In fact that assertion was made in error, since the Atkinson Email continues to be held in the email account of the abovementioned junior employee, and had not been identified by the Council by reason of the limitation in its searches which is described above. The Council has also reviewed the additional searches which it carried out in August 2025, as referred to in the Witness Statement of Mr Ulyatt dated 23 September 2025 at paragraphs 14-15 (Hearing Bundle, pp. 87, 90-91). The Council now understands the following. a. The Atkinson Email was identified, in the email account of the same junior employee, when the Council carried out those additional searches in August 2025. By that stage the Atkinson Email had already been disclosed to Mr Harron, on 23 January 2025, in response to the FOIA request in this appeal (Hearing Bundle, p. 511), and was therefore excluded from further consideration. b. The same additional searches also identified an email with the subject “Media coverage round-up Friday 19 August 2016” which is provided as Appendix 2 to these submissions. That email appears to have been identified due to unrelated references to the Swinton Lock Activity Centre and BBC Radio Sheffield, and was not responsive to Mr Harron’s FOIA request. It was therefore similarly excluded from further consideration. [‘the media round up email’] c. The same additional searches identified a series of email exchanges between Chris Read and residents within the Council’s area in relation to the Swinton Lock investigation. These emails were excluded from further consideration on the understanding that, as correspondence between an elected councillor and residents, they were held solely on behalf of Councillor Read within the meaning of section 3(2)(a) FOIA, and were therefore not “held” by the Council pursuant to section 3(2) FOIA. [‘the Swinton Lock emails’] 22. The Council therefore acknowledges that its response to Mr Harron’s FOIA request, its response to the Information Commissioner’s investigation in this matter, and the witness statement provided by Mr Ulyatt in these proceedings, each (for the reasons set out above) contained inaccuracies. In the circumstances the Council submits that the appropriate course is for the Council to be required to provide a new response to Mr Harron’s FOIA request, such that these inaccuracies may be corrected. To that end, the Council submits that the Tribunal should substitute a decision notice pursuant to section 58(1) FOIA requiring that the Council issue a fresh response, on the grounds that the Information Commissioner’s decision was based (without fault on thepart of the Commissioner) on a mistaken understanding of the underlying facts. The Council will be prepared to consent to an order in those terms, should Mr Harron and the Commissioner also agree. 23. The Council submits that this approach to the resolution of this appeal will be preferable to the alternative whereby (for example) the Council is directed to produce a closed bundle of the email exchanges referred to in paragraph 21.c above, and the parties then make submissions in relation to those materials. Such an approach: a. is likely to raise new legal issues for consideration in this appeal, and require a further hearing; and b. is at most likely to result in a substitute decision notice pursuant to section 58(1) FOIA, the need for which the Council accepts in anyevent.” a. The Atkinson Email was identified, in the email account of the same junior employee, when the Council carried out those additional searches in August 2025. By that stage the Atkinson Email had already been disclosed to Mr Harron, on 23 January 2025, in response to the FOIA request in this appeal (Hearing Bundle, p. 511), and was therefore excluded from further consideration. b. The same additional searches also identified an email with the subject “Media coverage round-up Friday 19 August 2016” which is provided as Appendix 2 to these submissions. That email appears to have been identified due to unrelated references to the Swinton Lock Activity Centre and BBC Radio Sheffield, and was not responsive to Mr Harron’s FOIA request. It was therefore similarly excluded from further consideration. [‘the media round up email’] c. The same additional searches identified a series of email exchanges between Chris Read and residents within the Council’s area in relation to the Swinton Lock investigation. These emails were excluded from further consideration on the understanding that, as correspondence between an elected councillor and residents, they were held solely on behalf of Councillor Read within the meaning of section 3(2)(a) FOIA, and were therefore not “held” by the Council pursuant to section 3(2) FOIA. [‘the Swinton Lock emails’][24]The Commissioner, in submissions dated 29 June 2026 did not consent to an order requiring a fresh decision notice. The Commissioner submitted that the media round up email was not in scope of the request. In relation to the Swinton Lock emails, the Commissioner said that he had not seen the Swinton Lock emails and noted that the Council had not confirmed, in its view, whether they were within the scope of the request. The Commissioner’s preliminary view was that they would not be in scope. Accordingly, the Commissioner submitted that he had seen no evidence that the Second Respondent held recorded information within the scope of the relevant request in January 2022 and maintained his position that the appeal should be dismissed for the reasons in the Decision Notice, response and submissions.[25]As to the Council’s argument that it does not hold the Swinton Lock emails for the purposes of FOIA, the Commissioner said that he considered that information is not held by a public authority for the purposes of FOIA in circumstances in which local councillors hold information when performing their function as elected members including when corresponding with residents of their ward.[26]In relation to next steps, the Commissioner said that, if on the information available, the tribunal considered that the media round up email and that Swinton Lock emails were not within the scope of the request, it should record this finding in the decision. Alternatively, if the Tribunal considered that it needed to view the emails to determine if they fell within the scope of the request, the Commissioner submitted that the Tribunal could direct the Council to provide copies of the emails.[27]The Commissioner submitted that it would be disproportionate to order the Council to issue fresh response to the request to correct ‘factual inaccuracies’, if the factual inaccuracies had been corrected in the Council’s submissions on appeal. He said that that fresh response ought to be issued only if the Tribunal determines that there is further information within the scope of the request which is not already in the appellant’s possession.[28]Following the second respondent’s submissions Mr Harron made an application for disclosure, which was refused by an order dated 15 June 2026. That application included, inter alia, an application for disclosure of the Swinton Lock emails. In submissions dated 25 June 2026 Mr Harron did not clearly state his position on whether a fresh response should be ordered, however he submitted that the tribunal could not reach an accurate conclusion without at least sight of the Swinton Lock emails. Discussion and conclusions[29]In submissions after the oral hearing, the Council conceded that the searches that it carried out before the Decision Notice was issued were inadequate. It also conceded that that search initially carried out was a more limited search than the search described in the Council’s FOIA Response and Internal Review Decision.[30]When more extensive searches were carried out in August 2025, the Council has accepted, in submissions, that further information was identified (the Swinton Lock emails). The Council has not said whether it considers those emails to be in scope of the request. The submissions state that information was excluded from further consideration on the understanding that, as correspondence between an elected councillor and residents, they were held solely on behalf of Councillor Read within the meaning of section 3(2)(a) FOIA, and were therefore not “held” by the Council pursuant to section 3(2) FOIA.[31]None of that is included in the evidence that was before the tribunal at the hearing. The Council has accepted that the response to Mr Harron’s FOIA request, the Council’s response to the Information Commissioner’s investigation in this matter, and the witness statement provided by Mr Ulyatt in these proceedings did not represent the true position.[32]The evidence before us, and before the Commissioner, on the extent of the searches and the information located is fundamentally undermined by the submissions of 12 June 2026. There is no evidence before us that sets out the accurate position – it is contained only in submissions produced following the hearing. The question of whether the Swinton Lock emails are “held” has not been addressed by any of the parties in evidence or, save to a limited extent, in submissions. It is not clear from the submissions of 12 June 2026 whether the Council intends to maintain that those emails were not held by the Council.[33]On the basis of the matters set out above, we are not satisfied, on the balance of probabilities, that the Council held no further information within the scope of the request and the appeal is allowed on that basis.[34]The Council has proposed that the appropriate outcome would be to allow the appeal and order the Council to provide a fresh response.[35]We acknowledge the Commissioner’s and Mr Harron’s position and we have considered carefully the suggestion that this tribunal should require the Council to produce the Swinton Lock emails to the tribunal, and determine whether they are in scope or held by the Council. We accept that this might lead to less delay in reaching a final outcome, because any fresh response could be appealed to the Commissioner. However, directions would have to be made for further evidence and submissions and the matter would need to be listed for a further hearing. That hearing would have to be before the same panel, because the matter is part-heard. That route is also likely to lead to significant delay.[36]In our view ordering a fresh response is the appropriate outcome in a ‘gateway’ appeal. A ‘not held’ response means that the Council has not yet passed through the “gateway” of compliance with ss. 1, 2 and 17 of FOIA. Having determined the appeal, in our view the correct course is for a fresh response to be issued and at that stage, if it confirms information within the scope of the request is held, it should disclose it or claim any exemptions that it considers apply. Signed Sophie Buckley Date: 10 July 2026 Judge of the First-tier Tribunal