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B. The appeal to the First-tier Tribunal
B.The appeal to the First-tier Tribunal
Mr Tilson lodged his appeal with the First-tier Tribunal. It is fair to say that his grounds read more as a complaint about the council’s failure to retain documents than a challenge to the Commissioner’s decision that it did not hold them. It was on that ground that the Commissioner applied to the First-tier Tribunal to strike out the proceedings as having no reasonable prospect of success. Mr Tilson sent a long reply.
The First-tier Tribunal struck out the proceedings on 21 December 2022. The operative part of its reasoning read:
I have concluded that the Appellant’s prospects of success in this appeal must be seen as falling into the “fanciful” rather than the “realistic” category of cases. This is because the Tribunal’s role in considering an appeal against a Decision Notice which found that information was not held is to decide for itself whether the information is or is not held. It is not its role to consider whether information should have been held, or to make enforcement or information orders against a public authority. It follows that the Appellant’scase, as put in his Notice of Appeal, and as set out more particularly in his response to the proposed strike out, is not one that any Tribunal would have power to uphold.