FT/EA/2024/0464 - [2025] UKFTT 01131 (GRC)

At paragraph 9 of the Decision Notice, the Commissioner states:

“The scope of the following analysis is whether the Council holds information falling within the scope of the 5 June 2023 request, which has not already been disclosed or made available to the complainant”.

In his response dated 28 April 2025, the Commissioner states that “he was correct to conclude, on the balance of probabilities, that no further information is held by the Council”.

We are satisfied, based on both the Decision Notice and the Response, that the Commissioner has applied an incorrect test when determining the scope of his investigation and his subsequent conclusion. It is apparent from the material before us that the Commissioner has focused the scope of his investigation and conclusion on whether, at the time that the Decision Notice was issued, there was any further material falling within the scope of the request which had not been disclosed to the Appellant.

This is evidently the incorrect approach. As submitted by the Appellant and in line with the Commissioner’s own guidance and the proper interpretation of regulation 5(1) of the EIR, the Commissioner should have addressed the question as to what information was held by the Council that fell within the scope of the request at the time that the request was made on 05 June 2023 and whether the Council complied with its duty under regulation 5(1) to make that information available to the Appellant (subject to the application of any relevant exemption).

In the Council’s response to the Commissioner dated 15 October 2024, the Council stated that the recording of CCTV footage from the waste vehicles was automatically overwritten after approximately 28 days, and that the public space CCTV footage was automatically deleted after 30 days. There is no suggestion from the Council that these time frames disapplied in this particular case.

We are therefore satisfied on the balance of probabilities that, at the time of the request being made on 05 June 2023, the Council would have held CCTV footage from the waste vehicle dating back 28 days, namely to 08 May 2023, and that the Council would have held CCTV footage from two public space CCTV cameras dating back 30 days, namely to 06 May 2023. Whilst we accept that CCTV footage from both the waste vehicle and the public space cameras falling within the earlier timeframe of the Appellant’s request (be that from either 20 April 2023 or 29 April 2023 onwards) would not have been available even at the time that the request was made due to the automatic deletion, we are satisfied that footage from the latter part of that timeframe, namely from 06 May (for the public space footage) or from 08 May (for footage from the waste vehicle) to 29 May 2023 would have been held by the Council.

This conclusion is supported by the fact that CCTV footage from both public space CCTV cameras had been disclosed to the Appellant on 30 June, in response to his SAR dated 31 May 2023. It is clear from the oral submissions of the Appellant that footage from both of those cameras related to the relevant date of 29 May 2023 and therefore would have fallen within the scope of the EIR request made on 05 June 2023.

In addition, during the course of the Commissioner’s investigation into the second EIR request that was made on 14 September 2023, it became apparent that the Council also held further footage dated 29 May 2023 from one of the public space cameras that the Appellant had not, at that time, seen. Again, this footage would clearly have fallen within the scope of the EIR request made on 05 June 2023.

We are therefore satisfied on the balance of probabilities that, at the time of the request being made, the Council held:

The footage outlined at (b)-(d) above fell within the scope of the request by the Appellant and yet was not provided to him pursuant to that request and in line with regulation 5(1) of the EIR.

We are therefore satisfied, on the balance of probabilities, that the Council held information that fell within the scope of the request at the date that the request was made which it should have made available to the Appellant in line with the duty in regulation 5(1) of the EIR, subject to the application of any relevant exemption.

It follows that the Council has also failed to comply with its duty under regulation 5(2) of the EIR to make such information available to the Appellant as soon as possible and no later than 20 working days after the date of receipt of the request.

Given that the CCTV footage from the waste vehicle and from the public space cameras is deleted within 28 and 30 days respectively, we are satisfied on the balance of probabilities that no further information now exists from any of the CCTV cameras. The Appellant also accepts that this is the position as any further footage will have been deleted in line with the retention periods. We therefore cannot order the Council to take any further steps in this case.

Finally, we note that the Appellant has invited the Commissioner to consider a breach of regulation 19 of the EIR. As the Appellant accepts, it is not for this Tribunal to consider the potential application of regulation 19 as it is not within our remit to do so.