Fiona Thompson v The Information Commissioner & Anor
[2024] UKFTT 391 (GRC)
Stephen Campbell v The Information Commissioner
3 August 2023
[2023] UKFTT 644 (GRC)
First-tier Tribunal
Someone asked for a draft government report. The government said they didn't have it. A judge agreed because even though the people who worked on the report were government employees, they used separate computer systems and the government couldn't prove the draft was on their systems.
Key Facts
- •Stephen Campbell appealed the Information Commissioner's decision that HMRC did not hold a draft version of the Independent Loan Charge Review report.
- •Campbell requested information relating to communications and the selection of the expert panel for the review.
- •HMRC stated it did not hold the draft report, and the Commissioner upheld this on the balance of probabilities.
- •Campbell argued that the review team, though seconded, remained HMRC employees and their IT systems were subject to FOIA requests.
- •Campbell provided evidence suggesting email accounts used by seconded staff were still active after the review.
- •The Commissioner argued that the review was not commissioned by HMRC and that information held by the review team was not held by or on behalf of HMRC.
- •The Tribunal considered whether HMRC held the information at the time of the request (November 2020).
Legal Principles
The normal civil standard of proof, balance of probabilities, applies when determining if a public authority holds information.
Linda Bromley v the Information Commissioner and the Environment Agency (EA/2006/0072)
Information is held by a public authority if held by the authority or by another person on behalf of the authority.
Section 3(2) FOIA
Outcomes
The appeal was dismissed.
The Tribunal accepted the Commissioner's investigation was comprehensive and found that on the balance of probabilities, HMRC did not hold the requested information at the time of the request. The Tribunal found no error of law in the decision notice.