The bulk of the First-Tier Tribunal’s most recent decisions under both FOIA and the EIR have concerned local authorities. Adequate searches, deleted emails and hard drives and listed building consent feature prominently. Here are some notable points from four of the decisions.

Deleted email account: Tribunal finds against Council

Councillor Jeremy Clyne v IC and London Borough of Lambeth (EA/2011/0190) merits close attention from local authority information officers. Southern Rail carried out work at its Streatham cleaning depot without planning permission. The Council considered taking enforcement action, and instructed a consultancy to report on this option. The requester asked for all reports and communications about the consultant’s draft report. The Council provided some information, but the requester was dissatisfied. He maintained, as requesters often do, that it was ‘incredible’ that further information did not exist. The Council insisted that it had not deleted any relevant information. This was enough to satisfy the Commissioner – but not the Tribunal.

One issue went in the Council’s favour: the Tribunal agreed that information held by its external solicitors was not held on its behalf in the circumstances. Otherwise, the key issues went against the Council.

First, the Tribunal disapproved of the Council’s approach to the wide request for information:

“Lambeth argued that in light of the broad scope of the request it had been reasonable to limit its searches to the planning department which was most likely to hold information. The Tribunal disagrees.  It is not for the public authority unilaterally to redraw the ambit of the request; if the scope is too wide to enable a proper search to be carried out, efforts should be made to refine the request.”

The Council further argued that “the breadth of the request meant that it was too difficult to ensure that every loose end was tied up. They argued that Mr Clyne should resubmit targeted individual requests to follow up these loose ends”. Again, the Tribunal disagreed.

Secondly, as to the adequacy of search and whether, on the balance of probabilities further information was held, the Tribunal applied the established approach from Bromley v IC and Environment Agency (EA/2006/0072) [2011] 1 Info LR 1273. A number of further documents were discovered only after the Commissioner’s decision; the Council had used incorrect or inadequate search terms; important communications about the consultant’s report appear to have gone unanswered (which seemed unlikely) and there was no paper trail accounting for the substantial changes between the draft and final versions of the report. The Tribunal noted that:

“Such a fundamental change as happened between the October 2007 and February 2008 versions of the report in [the requester’s] experience could only happen upon instruction and

not spontaneously. Consequently there ought therefore to be a paper trail.  Planning and legal departments are in different buildings, therefore more likely to communicate by email rather than “pop their head around the corner”. The practice of the Council and their preferred method of communication is by email… The Tribunal has not received an explanation that satisfies it that no recorded information was generated, nor an adequate explanation as to why if generated it has not been retained.”

This led to the third important feature of the decision: following Keiller, the Tribunal ordered the Council to restore the email account of the planning officer who was the focus of the requested information (his account had been expunged some time after the complaint to the Commissioner), to search that account and then to provide the requested information or issue a refusal notice.

Deleted hard drive: Tribunal finds for Council

The requester in Gilbert v IC and Northumberland County Council (EA/2012/0274) was a public transport campaigner seeking records about the 681 bus service (and the Council’s alleged ‘decimation’ of bus services). The Council provided some information, and again the Commissioner was satisfied.

As with Clyne, there were some difficulties with the Council’s case before the Tribunal. The Appellant provided four items he possessed which fell within the scope of his request, including correspondence between the Council and his MP. He argued that: “the Council has withheld or destroyed correspondence which confirms the depth of opposition to its highly unpopular bus cuts.” Further, the Council’s former Head of Transport, to whom the MP had written, had left the Council in March 2011 and his hard drive was wiped on his departure (which was after the handling of the request). The Tribunal observed that:

“the Council’s systems for locating information appear not to have functioned well in this case, as illustrated by the initial failure to identify relevant correspondence with an MP. Wiping the hard disc of a departed senior member of staff, without first checking that it did not contain information which might not be available elsewhere is a practice which might merit review.”

However – again by application of Bromley – the Tribunal was satisfied that on balance the Council had done enough and that no further information was likely to be held. This was largely down to the quality of the searches carried out by the relevant officer in response to the request:

“He circulated a communication to all members of the integrated transport unit  ‘who are either known to be involved in the discussions relating to service 681 or may have been party to documents or other forms of relevant evidence during this period’.  Further he made a search of the Council’s CRM using a range of search terms relating to the bus, the

operator and the route.”

In the Tribunal’s view, that was an adequate search, and the appeal was dismissed.

Statutory nuisance and listed buildings are not ‘private’ interests

In Kuschnir v IC and Shropshire Council (EA/2011/0273), the requester’s (listed) property suffered from damp attributable to a problem at the (listed) bicycle shop next door, Hawk Cycles. The Council deemed this a statutory nuisance and ordered Hawk Cycles to undertake remedial works. Hawk Cycles provided the Council was a schedule of works. The requester sought a copy of that schedule. His request was refused, based on regulation 12(5)(f) EIR (adverse effect on the interests of the person providing the information).

The Tribunal found that the exception was not engaged. It did find there to be sufficient adverse interest to engage the exception, although it saw “no evidence that the disclosure of the information would have made litigation against Hawk Cycles more likely, and if any claim was started by Mr Kuschnir, it is abundantly clear that he would have been entitled to disclosure of the information in the context of the litigation.  In our view the potential litigation context therefore adds little to the debate.”

Another requirement for the engagement of regulation 12(5)(f) is, however, that the provider of the information “was not under, and could not have been put under, any legal obligation to supply it to that or any other public authority”. This was the stumbling block for the Council: the Tribunal construed section 80(1) of the Environmental Protection Act 1990 – which empowers councils to take “such other steps as may be necessary” for requiring the abatement of a statutory nuisance – as meaning that the Council could have compelled Hawk Cycles to provide it with the schedule of remedial works.

The Tribunal went on to find that even if the exception was engaged, the Commissioner and the Council had got the public interest balance wrong. The public interest in disclosure was not great, but the Commissioner had been wrong to find it to be of a private nature. This was in part because the case involved statutory nuisance. The Tribunal added that “it is also relevant we think that Mr Kuschnir’s property was a listed building and one that the Council itself features on guided walks of Shrewsbury.”

The Commissioner had also wrongly characterised the public interest in maintaining the exception. It could not be said that disclosure would undermine the voluntary provision of information to the Council in circumstances Hawk Cycles “where were clearly under threat of an abatement notice requiring them to execute works to prevent a recurrence of the nuisance if they did not co-operate with the Council”.

The requester was therefore entitled to a copy of the schedule.

PDF sufficient

The requester in Forster v IC and Westminster City Council (EA/2011/0235) wanted to park his motorbike in Westminster. He asked for “a list of motorcycle parking bays (the addresses where they are located) so that I can plan trips into town.” The Council refused the request, relying on section 21 FOIA (information accessible by other means). It provided a link to the website which contained about 100 pages of images of a list – in a pdf file – of the names of all the streets in the City of Westminster on which motorcycle bays are located. The requester complained that the information was not “accessible” because it did not allow him to search, re-order or edit the data in the list for his own purposes without having to type the data into another file. He argued that the Commissioner has confused accessibility to a document which contains information, with accessibility to the information contained in a document. The Tribunal found, however, that those arguments were premised on the assumption that the Council held the list in the form that he wanted – but it did not; it had outsourced its IT, and the pdf was all it held. It could therefore rely on section 21.

Robin Hopkins