Stephen John Gullick v The Information Commissioner
[2023] UKFTT 985 (GRC)
Liam McCarthy v The Information Commissioner
24 May 2024
[2024] UKFTT 421 (GRC)
First-tier Tribunal
Someone asked for emails from parish councillors. The government decided the council didn't have them. The court agreed, saying even if the councillors had the emails personally, they weren't acting for the council when they got them.
Key Facts
- •Liam McCarthy appealed the Information Commissioner's decision that Chapel-en-le-Frith Parish Council held no information requested in a Freedom of Information request.
- •The request sought emails between councillors and individuals involved in noise nuisance legal proceedings against the Council.
- •The councillors stated they held no relevant information on behalf of the Council.
- •The appeal was heard on the papers.
Legal Principles
Section 1(1) FOIA: A person requesting information from a public authority is entitled to be informed if the authority holds the information and, if so, to have it communicated.
Freedom of Information Act 2000
Scope of FOIA request determined objectively, considering all circumstances.
Case Law (implied)
Whether information is held is determined on the balance of probabilities.
Case Law (implied)
Tribunal's remit under section 58 FOIA: To consider if the Commissioner's decision is lawful, or if discretion was wrongly exercised.
Freedom of Information Act 2000
Information held by councillors in personal accounts may be held on behalf of the Council if it relates to official business.
Information Commissioner's Guidance and Tribunal Interpretation
FOIA applies to information held by councillors only when carrying out local authority functions; not when acting as elected members.
Information Commissioner's Guidance and Tribunal Interpretation
Regulation 12(4)(a) EIR: A public authority may refuse disclosure if it does not hold the information.
Environmental Information Regulations
Regulation 3(2)(b) EIR: Environmental information is held by a public authority if held by another person on its behalf.
Environmental Information Regulations
Outcomes
Appeal dismissed.
The Tribunal found, on the balance of probabilities, that the Council did not hold the requested information. The information, if held by the councillors, was likely held in their capacity as elected members, not on behalf of the Council.
Commissioner's error in considering the case under FOIA instead of EIR was not material.
The Tribunal concluded the outcome would have been the same under the EIR.