First-Tier Tribunal rejects claims council misled Information Commissioner or Tribunal

The Royal Borough of Kingston-upon-Thames was not in contempt and was correct to say information sought by an applicant did not exist and so could not be provided, the First-tier Tribunal (General Regulatory Chamber) Information Rights has ruled.

In Moss v Royal Borough of Kingston-upon-Thames [2022] UKFTT 322 (GRC) Recorder Stephen Cragg QC, who heard the case with tribunal members Marion Saunders and Aimée Gasston, said applicant Derek Moss had been mistaken in believing the council had taken a decision to postpone the formation of a Community Benefit Society (CBS).

The information Mr Moss sought could not be provided since the council had never taken a decision to postpone the project, the tribunal found.

Mr Moss originally appealed against a decision notice from the Information Commissioner that the council did not hold the information requested but the FTT dismissed this in October 2020.

He maintained Kingston knew it held the information but failed to inform the commissioner and the FTT that that was the case and so made an application under rule 7A of the Tribunal Rules for the tribunal to certify to the Upper Tribunal that the council was in contempt.

Mr Moss said a December 2018 council finance and contracts committee revenue and budget monitoring report said the CBS project had been postponed to 2020-21 and argued that no authorised part of the council had taken such a decision.

Kingston responded by saying the CBS project remained in effect and the term ‘postponement’ referred only to previously projected income.

When the dispute first reached the FTT it concluded: “We understand why Mr Moss draws the conclusion he does from the November 2018 report, but, applying our collective experience, particularly in relation to the workings of local government, we are satisfied that his interpretation of the report is wrong and that the council are right to maintain that the word ‘postponement’ in the report relates to ‘projected income' and not to the project itself.”

In January 2018 portfolio holder for housing Emily Davey raised the CBS in an email to officers.

Mr Moss said this and a letter sent to him by an officer showed the council knew that the project had been postponed and it had failed to inform the commissioner of this.

Recorder Cragg said in the tribunal’s ruling: “We accept the evidence of the council witnesses that a single councillor or portfolio officer did not have the power to postpone the CBS project, and that the project has not been postponed by a full council meeting or committee.”

He said that since Mr Moss’s request “was specifically directed at a decision to postpone the CBS project, it is understandable that the council took the approach that, as a decision to postpone the project had not been taken, then it would not hold any information relevant to the request”.

The recorder added: “It seems to us that that is a logical response: there had been no postponement decision and therefore there would be no point searching for documents relating to such a decision.”

Cllr Davey’s email referred to further work on the CBS and “it seems to us that this email cannot be seen as a decision by the council to postpone the project”.

The tribunal concluded neither the earlier FTT hearing nor the commissioner were misled by Kingston and so Mr Moss’s application failed.

They added though: “Interesting questions were raised as to whether the council, as a non-party in the appeal, and not subject to any orders or directions of the FTT, could fall within the ambit of s61(3) FOIA in any event.

“We note that s61(3) FOIA refers to ‘a person’ who ‘does something, or fails to do something, in relation to proceedings before the First-tier Tribunal on an appeal’, which suggests a very wide possible ambit for this provision.

"But we also note that the act or omission must also constitute contempt of court if those proceedings were proceedings before a court having power to commit for contempt, and it seems to us at least arguable that, even if the council had further information it could or should have informed the tribunal about, then its failure to do so would not have been a contempt of court.”

Mark Smulian