![FT/EA/2025/0134 - [2025] UKFTT 01102 (TC)](https://backend.juristeca.com/files/emisores/logo_7HSuEAV.png){kind=logo}
Introduction
This appeal concerns a decision made by the Information Commissioner (“the IC”) dated 10 March 2025 (reference IC-346141-P2N7). This was in connection with a request for information made to Tonbridge & Malling Borough Council (“the Council”) by the Appellant, Mr Kevin Isted concerning parking and parking restrictions at a specific location.
Mr Isted wrote to the Council on 15 July 2024 to request the following information:
“I should be grateful if you would let me have, under the Freedom of Information Act, all information that you have, going back to 1 January 2021, relating to:
Parking and parking restrictions in Common Road, Blue Bell Hill, Chatham; and
Parking at the viewpoint/picnic site off Common Road, on Blue Bell Hill.”
The Council responded on 9 August 2024 providing information it held in scope of the request. Mr Isted requested an internal review on 19 August 2024.
Following its internal review, the Council again wrote to Mr Isted on 2 October 2024 answering each point in turn and stating no further information was held in scope of the request.
Mr Isted contacted the IC on 23 October 2024 to complain about the way his request for information had been handled.
On 10 March 2025, the IC issued a Decision Notice (the “Decision Notice”) which determined that, on balance of probabilities, the Council did not hold further information in scope of the request and had complied with section 1(1) of the Freedom of Information Act 2000 (“FOIA”). The Decision Notice did not require the Council to take any steps.
Procedural matters relating to the determination of this appeal
The parties opted for paper determination of the appeal. The Tribunal is satisfied that it can properly determine the issues without a hearing within rule 32(1)(b) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (as amended).
The Tribunal considered a bundle of documents (574 pages).
Abbreviations used in this decision
“the Council” means Tonbridge & Malling Borough Council
“Decision Notice” means the Decision Notice issued on 10 March 2025
“FOIA” means the Freedom of Information Act 2000. All references to sections are references to sections in this act unless otherwise specified.
“IC” means the Information Commissioner
“KCC” means Kent County Council
“TRO” means Traffic Regulation Order
“UT” means the Upper Tribunal, Administrative Appeals Chamber
The Appeal
Mr Isted appealed the Decision Notice to the Tribunal on 30 March 2025. He stated that he believed the IC came to an incorrect decision. The reasons for this conclusion, in summary, were as follows:
The Council failed to carry out sufficient and reasonable searches; in particular it identified elected council members who may hold information but did not ask them to search for information which it identified they may have, because it said that such officers were their own “data controllers” so fall outside the scope of their request. Mr Isted asserts that these council members should have been asked to search their emails. He also asserts that there is public planning material which he found on the Council’s website, which is within scope of the request and that the Council said it had no record of Aylesford Parish Council’s objection to the parking restrictions.
The Council should reasonably have held the information for the purpose of openness and accountability. He considers it “inconceivable” that the Council failed to maintain a number of records including those relating to advice, correspondence and recommendations leading up to the decision to impose parking restrictions. In particular, there should have been a record of the Council consulting the statutory consultees, such as the police and emergency services.
He did not consider the public consultations concerning the parking restrictions were accurate, consistent and without omission. In particular, there was no reference in the consultation documents to Kent Wildlife Trust’s proposal to introduce car parking charges at a site it manages on behalf of Kent County Council (“KCC”) which Mr Isted believes was the real reason for the parking restrictions being proposed. The decision to request KCC to make a Traffic Regulation Order (TRO) was therefore not for a purpose specified by Parliament by the Road Traffic Regulations Act 1984 and in respect of something which might never happen.
In support of his appeal, Mr Isted filed a number of documents which were included in the hearing bundle. This included the entirety of the documents which the Council disclosed to Mr Isted in response to his request.
The outcome sought by Mr Isted was for the Tribunal to allow the appeal and substitute a notice that orders the Council to take steps in relation to the request for information.
The IC’s Response to the Appeal
The IC responded to the Appeal on 9 May 2025 dealing with the points raised by Mr Isted.
The IC disagreed with Mr Isted’s view that the Council ought to have held the information sought in accordance with the Code of Practice issued under section 46 of FOIA. He submitted that the Tribunal in Councillor Jeremy Clyne v IC and London Borough of Lambeth (EA/2011/0190) held that the “issue for the Tribunal is not what should have been recorded and retained but what was recorded and retained” (paragraph 38). He argued that the issue of the Council’s alleged failings with regard to good records management practice is not within the ambit of the Tribunal’s jurisdiction under section 58. The Tribunal is limited to considering whether the IC was correct to conclude, on balance of probabilities, further information was not held.
In relation to whether the Council should have contacted elected members. If the emails on which Mr Isted relies, some of which post-date the request made in July 2024, were sent directly or copied to one or more elected councillors by the Council, then if further information was held it would have been discovered by the search strategy the Council used to find the information which was sent to Mr Isted on 9 August 2024.
The IC sought information from the Council as to what responses it had from statutory consultees.
Following Mr Isted’s complaint, the IC investigated the searches undertaken by the Council, who responded on 6 March 2025 that the searches were digital and included emails, the shared network drive and network storage. The IC maintained that he was satisfied that the Council had carried out a reasonable search to identify information falling within the scope of the request. The IC submitted that he was entitled to accept the responses of a public authority at face value unless there is some reason why he ought not to do, for example evidence that he is being misled (Oates v IC and Architects Registration Board – EA/201/038, paragraph 11).
The IC submitted that the way in which the Council conducts its business is outside the jurisdiction of both the IC and the Tribunal; FOIA does not address the issue of accuracy or completeness of any information provided in response to a request for information. Nor can the IC consider other allegations of maladministration or misconduct or make a judgment on the performance of the public authority. The sole issue before the Tribunal is therefore whether the IC erred in law or wrongly exercised his discretion in finding the council did not hold further information.
Mr Isted’s Reply to the Response
Mr Isted replied to the Response by a letter addressed to the IC dated 19 May 2025. He raised two additional points, which were:
That there are good reasons why the IC should not accept the Council’s response at face value and the Council has misled the IC and concealed information; and
The lack of compliance with the Code of Practice under section 46 was such that it was impossible for the Council to readily identify, locate or retrieve the information requested, so on the balance of probabilities the IC and Tribunal should consider this.
In relation to the reasons Mr Isted said that the IC should not have accepted the Council’s responses at face value, in summary, he made the following points:
The Council caused KCC to make a TRO for a purpose not covered by the Road Traffic Regulation Act 1984.
Mr Isted suggested that frustrating the possibility of him seeking judicial review of the decision to impose the parking restrictions was the motivation not to provide all the information.
The Tribunal should consider information which post-dates the response to Mr Isted’s information request which reveals what he says is the true purpose of the parking restrictions. He contends that there must be previous records to this effect, but that the Council had the motivation to conceal them to avoid discovery.
He also suggests that some of the motivation for what he considers inadequate consultation is to seek to raise money to offset the Council’s costs due to underfunding and this was done through car parking charges and fines for illegal parking. He argues that this provided motivation to conceal records of the real reason for the parking restriction, which subsequently came to light when the parking restrictions were approved on 3 March 2025.
Mr Isted also drew the Tribunal’s attention to emails regarding lack of progress on consultation to remove the parking restrictions as an example that anything the Council says on this matter cannot be taken at face value. He describes these responses as “extremely careless and inaccurate and ignore the questions asked”. He also described it as “an extreme example of errors and failure to respond adequately, amongst the passive aggressive responses received from [the Council] that I and my neighbours feel are designed to wear us down and make us give up on a just cause”.
In relation to the question of lack of compliance with the section 46 code of conduct, Mr Isted, in summary, made the following points:
He referred to a request made for local guidance on the management of information for the purpose of openness and accountability to the Council’s chief executive on 9 and 10 January 2025. Mr Isted said that this should have been actioned as a FOIA request, but in any event the chief executive seemed to be completely unaware of the section 46 code of practice. He argues that even if local guidance has been issued it has not been followed, as evidenced by the lack of records being provided of key advice, actions and decisions for the purpose of openness and accountability and by the failure to find them on the Council’s website.
He drew the Tribunal’s attention to the material with which he was provided and to which he was directed on the Council’s website. He argued that this proved his point because:
It was demonstrably so difficult for him to locate the information from a mass of information on a website he was belatedly referred to, that on balance of probability this means the Council failed to comply with his request.
The Council was “extremely unhelpful” in clarifying his request or directing him to information he could not find.
Mr Isted also responded to the points which had been raised in the Response. Whilst this largely reiterated his previous arguments in more detail, he also made the following points:
He considers it “quite extraordinary” that councillors would not provide advice called for by a member of the decision making body and not keep a record of that advice.
The Council failed to ask relevant councillors to check their council email accounts, personal email accounts and notes they might have taken digitally or manually. If it had done so this would have revealed consultations with Council officers and exchanges with members of the public including Mr Isted and his neighbours.
He asked the Council to point out the responses from statutory consultees within the documents provided and suggested these were not provided, which he contends amounts to a failure to consult them. He also suggests that this is further evidence of the Council misleading the IC.
The Council did not provide documentary evidence of the real reason for the car parking restrictions but instead substituted inconsistent reasons in the consultation documents and the reports on them. Again, he suggests that this is further evidence of the Council misleading the IC.
Mr Isted concluded by asking the IC (and thus the Tribunal) to conclude that information is more likely to be held than not and invite the Tribunal to uphold the appeal. He also made reference to a number of remedies such as ordering the Council to apologise and review its guidance and procedures to ensure its future compliance.