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United Kingdom Information Tribunal including the National Security Appeals Panel
You are here: BAILII >> Databases >> United Kingdom Information Tribunal including the National Security Appeals Panel >> Keston Ramblers Association v Information Commissioner and London Borough of Bromley [2007] UKIT EA_2005_0024 (26 October 2007)
URL: http://www.bailii.org/uk/cases/UKIT/2007/EA_2005_0024.html
Cite as: [2007] UKIT EA_2005_0024, [2007] UKIT EA_2005_24

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Information Tribunal Appeal Number: EA/2005/0024
Information Commissioner’s Ref: FS50067951
Heard at Audit House, London, EC4                                 Decision Promulgated
On 9 October 2007                                                              26 October 2007
BEFORE
CHAIRMAN
ANDREW BARTLETT QC
and
LAY MEMBERS
JENNI THOMSON
MALCOLM CLARKE
Between
KESTON RAMBLERS ASSOCIATION
Appellant
and
INFORMATION COMMISSIONER
Respondent
and
LONDON BOROUGH OF BROMLEY
Additional Party
Representation:
For the Appellant:
For the Respondent:
For the Additional Party:
Henry Fulwood
Timothy Pitt-Payne
Garreth Wong
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Appeal Number: EA/2005/0024
Decision
The Tribunal allows the appeal and substitutes the following decision notice in place of the
decision notice dated 2 November 2005:
Information Tribunal Appeal Number: EA/2005/0024
Information Commissioner’s Ref: FS50067951
SUBSTITUTED DECISION NOTICE
Dated 26 October 2007
Public authority:                       London Borough of Bromley
Address of Public authority: Civic Centre
Stockwell Close
Bromley
BR1 3UH
The Substituted Decision
For the reasons set out in the Tribunal’s determination, the substituted decision is that the
Council did not comply with the provisions of the Environmental Information Regulations
2004, in that it failed to make available to the applicant on request the information referred
to in paragraph 43 of the Tribunal’s determination.
Action Required
Since the information referred to above has been provided to the applicant, no action is
now required.
Andrew Bartlett QC                                                       Dated this 26 day of October 2007
Deputy Chairman, Information Tribunal
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Appeal Number: EA/2005/0024
Reasons for Decision
Introduction
1.  This appeal is concerned with the quality of a local council’s response to an
information request. It does not raise any issues concerning the applications of
exemptions or the balance of public interest. Our decision includes guidance on the
duty of advice and assistance (in paragraphs 56-59 below).
2.  We refer to the Freedom of Information Act 2000 as “FOIA” and to the
Environmental Information Regulations 2004 as “EIR”.
The request for information and the complaint to the Information Commissioner
3.  On 24 January 2005 the Keston Ramblers Association (“the Association”) made an
information request to the London Borough of Bromley (“the Council”) in relation to
a definitive map modification order made on 1 February “2002” (stated erroneously
as “2001” but later corrected to 2002) and the Keston Park Estate. It asked for
provision of
“copies of the duly made representations/objections and correspondence [sic]
thereafter conducted by officers of the Council with the following:
1. Representors and Objectors
2. Keston Park (1975) Limited
3. Messrs. Charman and Gore – Solicitors
4. The Planning Inspectorate
5. Messrs. Steele & Co. – Solicitors
6. Rights of Way Sub-Committee
7. Government Office for London”
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Appeal Number: EA/2005/0024
4.  A follow up letter of 17 February 2005 indicated that the request was made under
both FOIA and EIR, agreed the Council’s copying charge, and asked for suitable
dates and times for inspection of the information held by the Council’s Legal &
Democratic Services Department. A further follow up letter of 3 March 2005 asked
why dates and times for inspection had not been provided.
5.  The Council did not respond adequately, and the Association complained to the
Information Commissioner. After payment of fees by the Association under protest,
information was provided by the Council to the Association on 11 April 2005. This
comprised some 335 (sometimes described in our papers as 345) pages of
documentation.
6.  The Commissioner considered that the request related to environmental
information, and therefore considered the matter under the EIR. Following the
provision of the further documentation, the Commissioner decided, in a Decision
Notice dated 2 November 2005, that the Association had been provided with all the
information to which it was entitled and that no further information falling within the
scope of the request was held by the Council.
The appeal to the Tribunal
7.  The Association appealed to this Tribunal pursuant to s57 of the Freedom of
Information Act 2000.
8.  The grounds of appeal are in paragraphs 12-13 of the statement of Mr Fulwood
dated 24 November 2005. Mr Fulwood is an officer of the Association. His central
point is that the Commissioner was wrong to conclude that the Association was
provided with all the information to which it was entitled. His statement shows a
particular concern with information generated in the period July 2002 to October
2004 relating to a witness statement of a Mr Chatfield. His substantive complaint is
that the Council is still withholding information concerning the Council’s
consideration of that statement and the actions that flowed from it, and that the
Commissioner ought to have required the Council to permit inspection of the
withheld information. In his statement of 2 March 2006, pursuant to the Tribunal’s
direction, he gave more detail of what documents he thought should exist and had
not been disclosed.
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Appeal Number: EA/2005/0024
9.  He also raises complaints of a more procedural nature that (a) the date and (b) the
content of the Association’s complaint to the Commissioner were not recorded in
the Commissioner’s Decision, and that (c) no reference was made in it to the
Council’s failure to comply with section 10 of the Act.
10. The hearing of the appeal was originally ordered to take place in April 2006. It was
delayed by several requests by the Association for postponements, for a variety of
reasons which it is not necessary to go into, other than to say that the longest
period of delay was caused by unsuccessful judicial review proceedings brought by
the Association following the Tribunal’s refusal to issue a witness summons for a
witness who did not appear to the Tribunal to be able to give relevant evidence.
The questions for the Tribunal
11. The procedural complaints raised in Mr Fulwood’s statement do not require lengthy
consideration.
12. As to (a), it is correct that the date of the Association’s complaint to the
Commissioner was not recorded in the Commissioner’s Decision. It is usual for the
Commissioner to record the date of the complaint in the Decision Notice, but there
is no legal requirement to do so.
13. As to (b), it is not correct that the contents of the Association’s complaint were not
recorded in the Commissioner’s decision. It is certainly true that the Association’s
complaint could have been more fully set out in the Decision Notice, but the gist of
the complaint was accurately stated as being that the Association had not been
provided with all the requested information to which it believed it was entitled.
14. As to (c), it is true that the Commissioner did not refer in his Decision Notice to a
failure by the Council to comply with s 10 of the Act, which is concerned with the
time limit for responding to information requests under FOIA. The Commissioner
took the view that the request was governed by the EIR rather than FOIA, so that
Regulation 5 applied in place of s 10. More relevantly, during the Commissioner’s
investigation, the Association wrote on 26 July 2005, stating:
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Appeal Number: EA/2005/0024
We are pleased to confirm that our appeal to you is solely directed at securing
your affirmation of our right of access to recorded actions within the Legal &
Democratic Services Department that led to and followed The Secretary of
State refusal to accept that Departments negligently flawed legal drafting of
Definitive Map Modification Order 2001.
15. In light of this letter, the Commissioner was entitled to take the view that the
Association was not complaining about the Council’s procedural delay in replying
and was limiting its complaint to the substantive issue.
16. For the above reasons we reject the procedural complaints contained in the
grounds of appeal.
17. The sole issue formally raised by the appeal which requires our further
consideration is the substantive question whether the Council has withheld
information which it holds and which falls within the request. For this purpose it
makes no difference whether the matter falls within FOIA or EIR. No exemptions
are relied on by the Council. Thus under either regime, if the information requested
is held, it must be disclosed.
18. During the course of the hearing of the appeal Mr Fulwood raised a number of other
complaints, which were not detailed in his grounds of appeal. We consider these
below.
Evidence and findings of fact
19. Mr Fulwood’s evidence before us was contained in his written statement of 24
November 2005 enclosed with the notice of appeal.
20. We received statements and heard oral evidence from Mr Anthony Tompkins, a
solicitor in the employ of the Council, Mr Duncan Gray from the Environment and
Leisure Services Department, and Mr Martin Kelly, who at the time of the request
was the Council’s information officer.
21. While their recollections were understandably incomplete, and in some instances
the contemporary documents were of more help to us than the witness evidence,
we considered that the witnesses were genuinely trying to assist us. Taking account
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Appeal Number: EA/2005/0024
of their evidence, of the large volume of documents provided to us, and the
submissions made by the parties, our findings of fact are as set out below.
22. The Council is the surveying authority for public rights of way in the Borough and as
such is the body responsible under the Wildlife and Countryside Act 1981 for the
preparation and upkeep of the Definitive Map and Statement of Public Rights of
Way.
23. On 28 August 1998 the Association applied to the Council for registration of a
pedestrian right of way through Keston Park. After conducting an investigation the
Council concluded pursuant to s53 of the 1981 Act that the right of way was
reasonably alleged to subsist. This conclusion was resolved upon by the
Environmental Services Committee on 6 June 2001.
24. Where a Council reaches this conclusion, it is required to make an order amending
the definitive map. The making of such an order enables any persons aggrieved by
it to invoke the procedure under Schedule 15 of the 1981 Act for having their
objections heard and the evidence tested at a public inquiry. The order does not
take effect until confirmed. If there are no objections (or if any objections made are
withdrawn), it can be confirmed by the Council. Otherwise it can only be confirmed
by the Secretary of State.
25. There was then some delay by the Council’s external solicitors, who did not submit
the Order to the Council for sealing until December 2001. The amending order was
made on 11 December 2001 and advertised as from 1 February 2002.
26. On 6 March 2002 the Keston estate company, Keston Park (1975) Ltd, wrote to the
Council’s external solicitors making strenuous objections to the Order and requiring
a public inquiry. On 16 April 2002, the company submitted a further objection,
supported by three witness statements. On 8 July 2002 solicitors wrote on behalf of
the Keston Park Residents Association to the Council, making further objection.
They enclosed a report dated 3 July 2002 by an investigator, a Mr Chatfield, which
cast doubt on the reliability of the evidence which had been considered by the
Council as the basis of the June 2001 resolution. This was followed up on 29 July
2002 by a further letter, enclosing a signed witness statement by Mr Chatfield.
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Appeal Number: EA/2005/0024
27. It was suggested to the Council on behalf of the objectors that the Order should be
withdrawn because of the unreliability of the original evidence. The Council’s view
(set out in its letter of 28 August 2002) was that, having made the Order, under the
terms of paragraph 7(1) of Schedule 15 to the 1981 Act, it had no option but to
submit the order to the Secretary of State for confirmation. This position was driven
by the Council’s understanding of the relevant legislation, not by any evaluation of
the Chatfield evidence.
28. Accordingly, the Council instructed its external solicitors to make the necessary
arrangements. Mr Gray gave detailed instructions in his letter of 27 February 2003.
That letter referred to an “attached document headed Reasons for Making the
order” which was said to address “the Council’s comments on the objections”. The
attachment was not in the papers supplied to the Association or the Tribunal. During
the hearing we directed the Council to produce it within 7 days. It was supplied to us
a few days after the hearing. It contains a brief discussion of the objections, and
was clearly within the scope of the information request. We do not accept Mr Gray’s
evidence that he thought the attachment was not within the scope of the request; he
gave no convincing reason for that view.
29. After some delay the Order was referred on 20 May 2003 to the Planning
Inspectorate (acting on behalf of the Secretary of State).
30. On 21 July 2003 the Inspectorate wrote to the Council’s solicitors, stating that the
Order which the Council had made was invalid. The reason for the invalidity was
said to be that the Order had been made more than 6 months after the resolution of
6  June 2001, and that this was contrary to Statutory Instrument 12/93. (This
requirement is contained in a footnote to Schedule 2 to the Wildlife and Countryside
(Definitive Maps and Statements) Regulations 1993.) Accordingly, the Secretary of
State declined to exercise the power of confirmation conferred on her by paragraph
7 of Schedule 15 to the 1981 Act.
31. As a result, the Order was of no effect, and no public inquiry was held.
32. Because the Order was invalid it was necessary for the Council to consider the
matter afresh. At a meeting of the Rights of Way Sub-committee held on 12 October
2004 the Council decided not to proceed with a new Order. This decision was
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Appeal Number: EA/2005/0024
based on the objections which had been received after the making of the original
Order. The formal resolution read-
RESOLVED that, in the absence of clarification from the Keston Ramblers
Association of the further evidence submitted by the Keston Park Estate in the
form of their objection to the undetermined Order, no Order be made to show a
footpath on the claimed route as, on the balance of probabilities, insufficient
evidence has been adduced to support a reasonable allegation that a path on
that route subsists.
33. It is not entirely clear from the evidence what communications took place between
the Council and the Association prior to the reconsideration. An Association letter of
11 October 2004, written by Mr John Jones, stated that it enclosed an “Initial Draft
of my Witness Statement”, but the Council’s date stamp shows that it was received
by the Council on 13 October 2004, that is, after the relevant meeting had been
held. The initial draft statement does not appear among the papers disclosed to us.
Mr Jones’ letter also referred to an earlier letter of 9 October 2004, which we do not
have.
34. On the Council’s side, what preceded the decision of 12 October 2004 was a report
by Mr Duncan Gray to the Rights of Way Sub-committee. Before making his report,
Mr Gray discussed the matter with Mr Tompkins, a solicitor employed in the
Council’s Legal and Democratic Services Department. Mr Tompkins advised him
orally that in his opinion, in the light of the additional evidence received subsequent
to the making of the original Order, it was no longer appropriate to conclude that the
test in s53 of the 1981 Act was satisfied.
35. The second page of this report was missing from the documents supplied to the
Tribunal. At the request of the Tribunal, it was supplied on the morning of the
hearing. Mr Kelly speculated in his evidence that this second page of the report
would have been included in the documents supplied to the Association pursuant to
the information request, but he was not in a position to give positive confirmation
that it was. Mr Fulwood told us (without objection from the other parties) that he had
not seen it before. We have concluded that there was an inadvertent copying error,
9
Appeal Number: EA/2005/0024
and this page, which clearly fell within the terms of the information request, was not
supplied to the Association.
36. It contained a very brief evaluation of the material submitted by way of objection,
which included the Chatfield statement. It contained Mr Gray’s summary that “the
objection challenges the likelihood of a number of the witnesses having used the
subject path with the frequency claimed, based on evidence that they lived some
distance away at the time”. Ιt recorded Mr Tompkins’ advice as follows:
... he is now of the opinion that the evidence submitted on behalf of the Keston
Park Estate throws considerable doubt on the validity of the previous evidence
making that evidence unreliable. He, therefore, takes the view that on the
balance of probabilities the cumulative effect of the evidence now before
Members is not sufficient to support the making of an order to amend the
Definitive Map and Statement to show a footpath on the claimed route.
37. This was reflected almost word for word in the minutes of the meeting, which were
provided to the Association pursuant to their information request, and which
included a statement that-
The Director of Legal and Democratic Services was of the opinion that the
evidence submitted on behalf of the Keston Park Estate cast considerable
doubt on the validity of the previous evidence which now made that evidence
unreliable. He took the view that, on the balance of probabilities, the cumulative
effect of the evidence now before the Sub-Committee was not sufficient to
support the making of an Order to amend the Definitive Map and Statement to
show a footpath on the claimed route.
38. In the normal way, the reference to the Director was made because his Department
acted in his name, the particular employee who gave the advice being Mr
Tompkins.
39. Mr Fulwood contended that there must be some further record of a reassessment of
Mr Chatfield’s statement, beyond Mr Tompkins’ handwritten jottings which could be
seen on the copy held by the Council. Mr Tompkins explained in cross-examination
that there was a practice within the Council of providing internal legal advice orally
10
Appeal Number: EA/2005/0024
rather than in writing, since this was considered to be more efficient, and that there
was no other record than those which were produced to us. We accept his
evidence. Whether that was good practice is not for us to say, and is not relevant to
the issue before us. On the evidence, we find that there was not any further record
of reassessment.
Legal submissions and analysis
40. Mr Wong contended on behalf of the Council that we should be concerned only with
the specific documents identified in Mr Fulwood’s statement of 2 March 2006,
namely, the Legal and Democratic Services Department’s record of in-house
discussions and internal memoranda following the Secretary of State’s letter of 21
July 2003, and the responsible officer’s evaluation and re-evaluation of the Chatfield
statement. On that basis the documents written by Mr Gray would be outside the
scope of the appeal.
41. We think that is an unduly formalistic approach in the circumstances of the present
case. Mr Fulwood was not in a position to know exactly what records existed.
Where documents were written on the above topics, but by an officer in another
department, reflecting or influenced by the views of the Legal Department, we
consider that such documents should be regarded as falling within the scope of the
appeal, provided that they also fall within the original information request.
42. Mr Wong suggested in closing that Mr Gray’s report of October 2004 would have
been attached to the Sub-Committee’s minutes, and would therefore have been
available to the public at the central library in Bromley. We were not satisfied on the
evidence that that was in fact the case, but in any event the Council did not, in
answer to the request, refer the Association to the published minutes available at
the library. Instead, they sent an incomplete copy. If they had decided to deal with
the request by referring the Association to the library copy, it was incumbent on
them (by virtue of EIR regulation 6) to explain that to the Association, which they did
not do. They cannot now rely on the possibility that the full report was available at
the library as an answer to the criticism that the copy report sent to the Association
was incomplete.
11
Appeal Number: EA/2005/0024
43. Mr Pitt-Payne in his closing submissions conceded that the Commissioner’s
Decision Notice was incorrect in so far as it stated that there was no further
information held by the Council which ought to have been disclosed. In our
judgment he was right to do so. We hold that the Council wrongly failed to disclose
(1) the February 2003 attachment ‘Reasons for making the order’ and (2) the
second page of Mr Gray’s report of October 2004. However, we also hold that the
Council held no other recorded evaluation or re-evaluation of Mr Chatfield’s
statement.
44. At the time of the request FOIA had only recently come into force. The Council’s
failures were inadvertent and not deliberate. A close reading of the copied
documents by the Commissioner’s staff or by the Association would have identified
the missing items. We should mention here that the 335 pages contained some
material which related to a different footpath application and was of no relevance to
the Association’s request. The Council’s response to the request was not of a high
quality, and we express the hope that the Council now handles information requests
with greater accuracy and efficiency.
45. Mr Fulwood submitted that, in addition to the two missing documents which we
have referred to, the Council ought to have disclosed the terms of engagement of
their external solicitors. We were not persuaded by this submission. Mr Wong and
Mr Pitt-Payne both submitted that, on a fair reading of the information request, the
terms of engagement of the solicitors were not within its scope. We agree with them
on that point.
46. Mr Fulwood contended that a full copy of the application to the Secretary of State,
as sent by the external solicitors to the Planning Inspectorate, ought to have been
provided. Mr Wong submitted that the application as submitted by the external
solicitors to the Planning Inspectorate was not within the terms of the information
request, because it was neither a communication between the Council and the
Planning Inspectorate nor between the Council and the external solicitors. We
accept that submission as regards the original, but a copy of it might have
constituted a communication between the external solicitors and the Council.
12
Appeal Number: EA/2005/0024
47. Mr Gray stated in evidence that he did not have a copy. He speculated that the
external solicitors should have a copy, and that it was possible that the Legal and
Democratic Services Department might hold one. However, there was in our
judgment no satisfactory evidence that the Council held a copy of the as-sent
application at the time of the Association’s request. Mr Pitt-Payne invited us in the
course of the hearing to direct the Council to look at their files again and see if they
contained such a copy. We did so. The Council confirmed in writing, after the
hearing of the appeal, that a copy was not held. We are unable to find that the
Council held a copy which it failed to disclose to the Association.
48. We deal next with the additional points raised by Mr Fulwood during the hearing.
49. Mr Fulwood contended that his letters of 17 February and 3 March 2005 were
further information requests, which the Commissioner ought to have recognised and
considered. We do not agree. Those two letters did not ask for any additional
recorded information, and were not information requests within the meaning of
FOIA or EIR. The Commissioner was correct in not treating them as information
requests.
50. Mr Fulwood next submitted that the Council’s response did not comply with EIR
regulation 6. This requires the public authority, subject to certain important
qualifications, to make the information available in a particular form or format
requested by the applicant. He contended that the documents should have been
sorted and supplied to him under the seven headings set out in his request. We
reject this complaint for the following reasons:
(1) While it is true that his grounds of appeal described the supplied documents
as “neither indexed nor page numbered”, it was not reasonably apparent to the
Commissioner or to the Council at any time prior to the hearing of the appeal
that he was making a complaint about format under regulation 6.
(2)  The information request did not expressly ask for the documents, when
supplied, to be divided between the seven headings. Indeed, such a division
would be inherently impracticable, since numerous items would fall under more
than one of the headings.
13
Appeal Number: EA/2005/0024
(3) While it is not necessary for us, for the purposes of this appeal, to take a
definite view on the proper interpretation of regulation 6, Mr Pitt-Payne and Mr
Wong submitted that the expression “form or format” is not a reference to
categories of subject-matter, but is a reference to whether the information
should be supplied by means of paper copies, or electronically, or by viewing of
a microfiche, and so on. We think that submission is probably correct, and on
that basis the contention that there was a breach of regulation 6 would not
succeed even if we were to hold that it formed part of the appeal.
51. At one point Mr Fulwood raised a point about the fees charged to the Association
pursuant to EIR regulation 8. However, it was clarified in the course of the hearing
that he was not pursuing any point on this, and in any event the Council agreed
during the hearing to refund to the Association the charge that had been made, so
the point became academic.
52. Mr Fulwood submitted that the Council had failed to provide reasonable advice and
assistance pursuant to EIR regulation 9, in respects set out in the Commissioner’s
letter of 22 June 2005. Mr Wong objected to this submission, on the ground that no
such allegation was contained either in the grounds of appeal or in Mr Fulwood’s
subsequent statement of 2 March 2006. We uphold this objection. A party is entitled
to reasonable advance notice of the points to be pursued on appeal. While they
were raised in the Commissioner’s correspondence during his investigation, they
were not raised in the appeal itself until the day of the hearing. The Council may
well have wished to prepare additional evidence to deal with this allegation if
suitable advance notice of it had been given. (However, the matters which Mr
Fulwood wished to go into gave rise to a point of general interest in relation to the
duty to give advice and assistance, and we therefore include separately below a
comment upon it, notwithstanding our decision not to allow Mr Fulwood to pursue it
as a complaint against the Council.)
53. To meet other parties’ objections to his submissions on matters not raised in the
grounds of appeal, Mr Fulwood referred to the Tribunal’s power in FOIA s58(2) to
review any finding of fact on which the Decision Notice was based. That power
does indeed enable the Tribunal to review findings of fact, but that is a separate
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Appeal Number: EA/2005/0024
question from determining what matters are fairly included within the scope of the
appeal.
54. Mr Fulwood submitted in addition that the Council was in breach of EIR regulation
11. Mr Wong objected that breach of regulation 11 was not alleged in the grounds
of appeal. We uphold the objection, for the same reasons as the objection to the
allegation of breach of regulation 9.
55. For completeness, we record that the Council’s delay in answering the request did
not form part of the appeal, and in any event the Council conceded that it did not
deal with the request as quickly as it ought to have done.
Advice and assistance where fees may be charged
56. We wish to add some observations on the interaction of EIR regulations 8 and 9.
57. Regulation 8 entitles the public authority, subject to certain restrictions, to charge
the applicant for making information available. Regulation 9 requires the public
authority to provide advice and assistance to applicants and prospective applicants,
so far as it would be reasonable to expect the authority to do so.
58. Mr Pitt-Payne submitted that, where the authority has collated the requested
information, and offers to copy it in return for a fee, the duty of advice and
assistance would normally require the authority to offer the documents for
inspection, so that the applicant can see them and decide whether he wants to go
ahead with paying for copies, or whether he is satisfied with inspection of them.
59. While of course the requirements of the advice and assistance duty must vary
according to the particular circumstances, it does seem to us that in general Mr Pitt-
Payne’s submission is likely to be correct. As he said, this procedure would avoid
any sense of grievance, as could have occurred in the present case, arising from
the copying of information that was not relevant to what the applicant was actually
wanting.
15
Appeal Number: EA/2005/0024
Conclusions and remedy
60. Our conclusion is that the Council did not deal with the request in accordance with
the requirements of EIR, in that it did not disclose the two documents identified at
paragraph 43 above. To this extent only the appeal is allowed.
61. In support of our power both to allow the appeal and to substitute an amended
Decision Notice, notwithstanding the terms of FOIA s58(1), we refer to paragraphs
16-23 of the Tribunal’s decision in Guardian Newspapers v Information
Commissioner and British Broadcasting Corporation 2006/0011, 2006/ 0013.
62. Since the missing documents have now been provided to the Association, no
further remedial action is required.
63. Our decision is unanimous.
Andrew Bartlett QC
Deputy Chairman
Date 26 October 2007
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