Tribunal Upholds Council's Search Efforts in Diane Jones v Information Commissioner FOIA Case

Citation: [2023] UKFTT 815 (GRC)

Judgment on Dec 4, 2023

Introduction

The case of Diane Jones v Information Commissioner elucidates significant principles of the Freedom of Information Act 2000 (FOIA), as it pertains to requests for information held by public authorities. The First-tier Tribunal’s decision focuses on the interpretation of the scope of such requests and the obligations of a public authority when conducting searches for information. This article provides a detailed examination of the Tribunal’s application of legal principles to the facts of the case, culminating in the dismissal of the appeal.

Key Facts

Diane Jones, the appellant, made a request under the FOIA for information on Newcastle Upon Tyne Council’s applications to be a part of Stonewall’s Diversity Champions Programme and Workplace Equality Index for the years 2019 and 2020. The Council claimed it did not hold information relevant to part of the request and withheld other parts under section 41(1) of FOIA. Following an unsatisfactory response and internal review, Jones appealed to the Information Commissioner, who partially upheld her complaint. The Appellant then appealed to the First-tier Tribunal, contesting the claim that no relevant information was held by the Council.

Legal Principals

The decision turned on the interpretation and application of several FOIA provisions:

Section 1 FOIA - This section affirms an individual’s right to be informed whether a public authority holds information specified in a request, and if so, to have that information communicated to them. The definition of ‘held’ information is crucial, taking into account the state of the information at the time the request is received.
Section 3 FOIA - Defines what it means for information to be ‘held’ by a public authority, including information held on behalf of the authority by another person.
Section 58 FOIA - Provides the Tribunal with the authority to determine appeals, allowing it to dismiss the appeal if the notice against which the appeal is brought is in accordance with the law, or to review and replace the notice if necessary.

The Tribunal specifically referred to the balance of probabilities standard in deciding whether information is held and cited the case of Bromley v Information Commissioner and the Environment Agency to emphasize that the quality, scope, and rigor of a public authority’s search are factors to consider when determining if further information is likely to be held.

Outcomes

Upon reviewing the Council’s process in responding to the FOIA request, the Tribunal concluded the following:

The Request’s Scope: The Tribunal clarified that the FOIA request was limited to the actual applications for the 2019 and 2020 programs, including any attachments and appendices. It did not extend to drafts, preparatory materials, or internal communications, which the Appellant believed should have been included.
Adequacy of Search: The Tribunal found the Council’s search efforts, though limited, reasonable and appropriate given the narrow scope of the Request. The Tribunal accepted that it was plausible for the Council not to keep its own copy of the applications and that they would have relied upon access through the Stonewall portal while they were members.
Information Held: The Tribunal determined that, based on the Council’s evidence, it did not hold the information requested at the time of the application. While the Council could access the information through the Stonewall portal up until three months post-request, this did not amount to information being “held” by Stonewall on behalf of the Council within the meaning of the FOIA.

Therefore, the Tribunal dismissed the appeal, upholding the Information Commissioner’s decision.

Conclusion

The Tribunal’s decision in Diane Jones v Information Commissioner reinforces the importance of the precise formulation of FOIA requests and underscores the public authority’s duty to conduct an appropriately scoped and diligent search in response. It clarifies that for information to be considered “held” under the FOIA, it must be in possession or control of the public authority at the time of the request. This decision provides valuable clarification on the expectations of public authorities under FOIA regarding the retention and discovery of information when faced with a request.