Peter Tilson v Information Commissioner

An appeal against a decision notice that information is not held concerns whether the public authority held the requested information. It does not ordinarily determine whether the authority ought to have retained information or make enforcement or information orders.

However, proceedings must not be struck out where the appellant’s material, read as a whole, contains a challenge to the finding that information was not held and that challenge has not been addressed. Failure to consider that jurisdictionally relevant challenge is an error of law. The appropriate course is to set aside the strike-out and remit the appeal for determination on its merits.

Mr Tilson requested information from Northumberland County Council. The council said that all information it held was on its planning portal, and maintained that position on internal review. The Information Commissioner concluded that the council did not hold the requested information.

The First-tier Tribunal struck out Mr Tilson’s appeal on the basis that it challenged a failure to retain documents rather than the Commissioner’s finding. Mr Tilson appealed. The Upper Tribunal had granted permission because his response to the strike-out application included a challenge to the finding that the information was not held. Later material, including an event log, also cast doubt on the reliability of the council’s earlier evidence.

The issue was whether the First-tier Tribunal had erred in striking out the appeal, not whether the council in fact held the information.

1. Appeal allowed. The First-tier Tribunal’s decision was set aside for an error of law and the case was remitted for rehearing by a differently constituted panel.

2. The First-tier Tribunal had correctly identified the ordinary scope of an appeal from a decision notice which finds that information is not held. The tribunal must decide for itself whether the information is held. It does not decide whether the authority should have retained it, nor make enforcement or information orders.

3. That reasoning did not justify striking out this appeal. Mr Tilson’s response to the proposed strike-out included an express challenge to the Commissioner’s finding that the council did not hold the requested information. That was an issue within the First-tier Tribunal’s jurisdiction. The tribunal failed to deal with it.

4. The later event log showed that the council had at one time held information provided by Mr Tilson. Although the Upper Tribunal did not decide the merits of whether the requested information remained held, that material reinforced the need for the First-tier Tribunal to investigate the appeal.

5. The Information Commissioner supported the appeal. The First-tier Tribunal was invited to consider joining the council as a party to the rehearing.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal, set aside the strike-out and remitted the case for rehearing: [2024] UKUT 83 (AAC).

• First-tier Tribunal (General Regulatory Chamber): struck out Mr Tilson’s appeal from the Information Commissioner’s decision notice on 21 December 2022 (reference EA/2022/0212).