Peter Marshall v The Information Commissioner

1. This A ppeal is brought by the Appellant by reg 18 Environmental Information Regulations 2004 (“EIR”) and section 57 Freedom of Information Act 2000 (“FOIA”). It relates to a Decision Notice (“the DN”) issued by the Information Commissioner (“the IC”) on 16 July 2024 with reference number IC-277423-Z5J8 and it concerns a request for information (“the Request”) made by the Appellant to Westminster City Council ("WCC") on 4 October 2023.

2. W hat follows is a summary of the submissions, evidence and our view of the law. It does not seek to provide every step of our reasoning. The absence of a reference by us to any specific submission or evidence does not mean it has not been considered.

3. In this decision page numbers indicated by their inclusion in brackets refer to pages of the bundle provided to us. Background

4. This appeal is concerned with a small area near the Regent's Canal in London.

5. On 4 September 2023 the Appellant wrote to WCC (60) and asked "Are you able to advise the ownership of the small triangular piece of land adjacent to 120 Lisson Grove, London NW8 which is maintained by the Highways Department. For ease of reference please note the attached map extract." A copy of this plan is in the appendix as "Plan A". WCC replied on 4 October 2023 (62) under ref 33016829 saying they did not know who owned it but that the most likely owner was The Canals & River Trust ("C&RT").

6. The Request which was about why Highways maintained it and at what cost flowed from this exchange. WCC said it had no information on these questions because it did not own it and Highways was not maintaining it. It appears that C&RT also said they did not own it. No one else was identified as having title to it. During the appeal it became apparent that the parties were communicating with each other about geographically close but different places. Evidence and matters considered

7. We had a bundle of 275 pdf pages and separately a pdf of 4 pages with emails from 2025. Role of the Tribunal

8. Section 58 FOIA provides that:- (1) If on an appeal under section 57 the Tribunal considers— (a)that the notice against which the appeal is brought is not in accordance with the law, or (b)to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently, the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal. (2)On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based.

9. The focus of this appeal is on considering whether the outcome in the DN (that the requested information is not held) is in accordance with the law. The EIR

10. Reg 5 EIR says as follows:- "5. —(1) Subject to paragraph (3) and in accordance with paragraphs (2), (4), (5) and (6) and the remaining provisions of this Part and Part 3 of these Regulations, a public authority that holds environmental information shall make it available on request"

11. Reg 12(4)(a) EIR provides that a public authority may refuse to disclose information if it did not hold it when the request is received.

12. A number of relevant legal authorities such as Preston -v- the Information Commissioner and The Chief Constable of Yorkshire Police [2022] UKUT 344 ACC, Jeremy Clyne v IC and London Borough of Lambeth EA/2011/0190, Linda Bromley v the Information Commissioner and the Environment Agency (EA/2006/0072 31 August 2007 and Oates v Information Commissioner and Architects Registration Board EA/2011/0138 provide principles for considering whether information is held such as:- (a) the question is to be decided on the balance of probabilities. (b) there is never a guarantee that public authorities will be able to retrieve every piece of information that they hold within the scope of a request. ( c ) the issue is not what should have been recorded and retained but what was recorded and retained. ( d ) the IC is entitled to accept the word of the public authority and not investigate further "where there was no evidence as to an inadequate search, any reluctance to carry out a proper search or as to a motive to withhold information actually in its possession." Request to appeal (overview)

13. On 4 October 2023 the Appellant made a subsequent request (by way of a follow up to WCC's answer) on the same date. This is referred to as the Request in this Decision. He asked:- (a) Why is the land maintained by WCC Highways Department; (b) Is the cost of maintenance a public expense; if it is, (c) What is the annual cost.

14. WCC replied on 31 October 2023 using ref 33365449 saying "our records show that this parcel of land is not inspected, or maintained by, the City Council."

15. On receipt of WCC response on 31 October 2023 the Appellant asked for an internal revie w (65). He said " I refer to the above request and to your response received a few moments ago. It appears to conflict with the attached and my own knowledge of the area in question. Perhaps an Internal review would be appropriate". The Bundle does not show the attachment for this email but it appears it was a copy of an email from the Appellant to WCC on 14 August 2023 (see 227).

16. WCC replied on 22 November 2023 saying that it did not know who owned the land but also that (67) "The Highways department has reported that the piece of land in question is not accessible. For that reason it not maintained by them as set out in the council’s response of 31 October 2023."

17. The Appellant wrote again to the Council on 22 November 2023 and attached photographs (88/227). We could not tell with certainty which these were from the bundle. WCC replied on 19 December 2023 with a map (Plan B in the Appendix) which drew a tighter ring directly around the same triangle and said "The triangle of land identified in your original request is outside of these red lines"

18. The Appellant complained to the IC on 14 December 2023 (63). He attached "documents and photographs referred to in the correspondence". 3 photographs are at pages 70-72 and we have concluded from the evidence available that these were the attachments to the email on 22 November 2023.

19. The IC's decision following its investigation as set out in the DN of 16 July 2024 was that WCC did not hold, the requested information and should have i ssued a response citing reg 12(4)(a) EIR. The appea l

20. On 14 December 2024 the Appellant appealed the DN. The outcome sought was for the appeal to be allowed and a substituted notice issued that ordered WCC to take steps in relation to the request for information. The IC in its response of 7 February 2025 (29-34) stood by the DN and said that (33) "none of the arguments presented are sufficient to cast doubt on his findings and he remains satisfied that, on the balance of probabilities, the requested information is not held." As regards the question of ownership of the land the IC said that WCC had been asked about this and they had maintained the position that it was not theirs. The IC said that he was entitled to accept WCC's representations at face value and that further evidence submitted by the Appellant during the appeal did not contradict WCC's position. The IC's conclusion was that (33):- "17...it is reasonable to conclude, on the balance of probabilities, that the Council would not hold the requested information in any recorded form. The Appellant’s Grounds do not disturb the conclusion reached in the DN, and the Commissioner stands by his decision"

21. On 7 February 2025 the Appellant replied to the IC's response. What appears from this reply is that the parties were in fact focused on different pieces of land close to each other. The Appellant said (36):- "3. The appellant has seen a disclosure document entitled IC-320901-S6B2 Information in Scope where at page 18 there is an Appendix 1 prepared by the third-party. Two Ordnance Survey extracts are exhibited, one of which the appellant attached to his original information request. The second shows the third-party's erroneous assumption as to the location of the land in question. In addition the third-party has made the following annotations: It is considered that Mr Marshall is referring to the area circled in blue below: Figure 2 – Triangle circled believed to be subject of request, blue circle added for this response. 4 The appellant would respectfully inform the Tribunal that the third-party has mis-identified the land in question. Indeed what it identified is not land at all but a physical structure at water-level over fifty feet below the surrounding area."

22. The reply had attached to it (38) Plan C in the appendix showing the area of interest in red. Review

23. From comparing Plans A and C we agree that the parties were dealing with different places. As it appears that WCC was focused on a different small area to the one that was the intended subject of the Request we have considered whether WCC should have sought clarity or given advice and assistance before delivering their response to the Request.

24. Reg 9(1) EIR provides that "A public authority shall provide advice and assistance, so far as it would be reasonable to expect the authority to do so, to applicants and prospective applicants" This can include asking for further clarification. By reg 12(4)(c) EIR a public authority may refuse to disclosure information to the extent that "the request for information is formulated in too general a manner and the public authority has complied with regulation 9".

25. We conclude that WCC was clear in its own mind what it was being asked about. For example on 1 April 2025 WCC wrote to the Appellant (266) saying that "clarification was not sought in this instance due to correspondence referring to 'a triangular piece of land', and there being only one triangle in the map you provided." It was also clear to the IC who said on 28 February 2025 to the Appellant (40):- "The Council did not have to clarify what you meant by ‘triangular shape’ or ‘triangle’ as there is clearly only one triangle in that encircled area...It was also reasonable for the Commissioner to assume this, given that on 19 June 2024, you sent the Commissioner an email stating (emphasis added): “The Canal and Rivers Trust confirm they have no interest in the piece of land in question. They are the freeholder of 120 Lisson Grove NW8 which adjoins the “Triange”

26. We conclude that not giving advice and assistance before issuing its response after the internal review on 22 November 2023 was reasonable. This is because in our view the Request would have appeared certain because:- (a) the email in advance of the Request (and from which the Request arose) came with a description of the land as being "a small triangular piece of land adjacent to 120 Lisson Grove." (b) while " adjacent to" is perhaps open to interpretation the email came with a plan (Plan A) with an area circled. In that circle is a triangular piece of land and it is in the centre of that circle indicating it to be the "target" of the enquiry. (c) there is only one triangular shaped area inside the circle. (d) the actual area of interest seen in Plan C is not a triangle. (e) although the Appellant says that what WCC was investigating was not land but a physical structure at water-level over fifty feet below the surrounding area that would not have been apparent from the plan as provided by him and would have relied on the person dealing with the Request being personally aware of the area in detail. Additionally, especially in a legal context, the word "land" can mean more than soil and can encompass physical structures even rights in respect of land in the same way that "property" can mean more than buildings. (f) we have considered whether WCC should have been alerted to the need to seek clarity by the difference of view about title and/or because of the apparent difference of fact about who was or was not maintaining it. In hindsight the nature and extent of the differences might have put WCC (and the Appellant) on alert as to the possibility they were each talking about different things. However in our view that would not have been clear enough at the time to WCC to have required WCC to seek more information when balanced against the apparent clarity of the description given initially by the Appellant and the plan. (g) although it post-dated the review we also noted that WCC wrote to the Appellant on 19 December 2023 (99) with a copy of Plan B showing the area they thought was of interest clearly marked. (h) although in February 2025 the Appellant said that (49) "The use of the word "triangle" or "triangular piece of land" was coined by Mr Jon Lock Head of Housing at Westminster City Council. I merely used that phrase so it was clear which area I was discussing" in fact use of the phrase in combination with the plan (A) made it clear (if mistakenly) to WCC that it was dealing with that triangular area.

27. Just prior to the issuing of the DN (on 16 July 2024) the Appellant wrote to the IC on 4 July 2024 and said (237) "It should be understood that in would be totally unreasonable for the Council to have misinterpreted the triangular structure – which is about fifty feet below the general surrounding area – for a piece of land. Or indeed the land shown in the photograph attached to the FOIA request." We think this is a reference to photographs which, as explain above, we think were sent with the request for an internal review and are at pages 70-72 of the bundle.

28. We have considered whether, if these were sent at that time, WCC should have asked for more clarity. We looked at these photographs alongside plan A and the description provided by the Appellant to WCC. For a person not familiar with a place it can often be difficult to reconcile what is shown on a plan, especially without OS map type features, with a photograph and say with certainty what part of a plan relates to what part of a photograph or as in this case be able to identity that they are not of the same thing. It is also difficult to look at the plan (A) and the photographs with hindsight and conclude fairly what the recipient might reasonably have decided at the time in 2023. We do not have a statement from WCC which sets out what was thought on receipt of the photographs. What we conclude is that due to the clarity that appeared to have been provided by the plan and email description that certainty is likely and reasonably to have been the dominant influence on how WCC viewed what it was receiving.

29. However even if seeking clarification was deemed necessary in our view WCC's email of 19 December 2023 with the plan (B) adequately discharged that obligation. Decision

30. For the reasons set out above:- (a) WCC was not required to give advice and assistance about the Request but if it was that obligation was discharged by the email of 19 December 2023. (b) we accept that, on the balance of probabilities WCC, at the date of the Request, did not hold any information in scope of the Request about the triangular area of land as they interpreted it.

31. Accordingly the appeal is dismissed.

32. As a post-script, while it is not a matter for us because our focus is on the Request and the DN we noted that on 28 February 2025 (41) the IC said to the Appellant that it considered his email to WCC of the 14 August 2024 (46) to be a new request that required a response from WCC. We also saw a suggestion that the issue of the identification of the land in question had been resolved. Signed Judge Heald Date: 19 December 2025