Reed v Information Commissioner  UKIT EA_2006_0018 (29 December 2006)
Appeal Number: EA/2006/0018 FS 50082264
Freedom of Information Act 2000 (FOIA)
Heard on the papers
20 November 2006
29 December 2006
Mr Humphrey Forrest Deputy Chairman
Mr David Wilkinson Lay Member
Mr Andrew Whetnall Lay Member
Mr Richard Reed Appellant
The Information Commissioner Respondent
Astley Abbotts Parish Council Additional Party
The Hearing was held in Chambers. Written representations were received from the three parties.
The Tribunal has decided to substitute the following Decision Notice in place of the Decision Notice dated 3rd March 2006. No action is required following the substituted Decision Notice.
FREEDOM OF INFORMATION ACT 2000 (SECTION 50 and 58(1))
SUBSTITUTED DECISION NOTICE
Dated 14th December 2006
Name of Public Authority:
Astley Abbotts Parish Council
Address of Public Authority:
Cherry Oaks Farm, Lower Monkhall, Monkhopton, Bridgnorth, Shropshire WV16 6XF
Name of Complainant:
Mr Richard Reed
The Decision Notice of the Information Commissioner dated 3rd March 2006 shall stand with the following changes:
In 2, under the heading "The Commissioners Decision", delete the first two paragraphs and substitute the following:
The Council, in their response of 5 December 2005, stated that they did not hold recorded information in response to questions 2-11 of the above information request. The complainant disputes this. It appears that the meeting about which information was requested, was a Parish Meeting called by the Council; and it appears that a note of the meeting was made at the time by the Clerk to the Parish, and may subsequently have been held as a record by the Parish Council. However, that note was not retained; and, in any event, it appears more likely than not that the contents of the note of the meeting would not have contained the information required to answer the questions posed by the complainant. The Council do not hold any other recorded information which contains the answers to the questions posed. Therefore, in replying to the effect that they did not hold recorded information about the meeting, the Parish Council are not in breach of their obligations under Section 1(1) of the Freedom of Information Act.
In all other respects, the Decision Notice shall stand unaltered.
Dated this 14th day of December 2006
Deputy Chairman Information Tribunal
Reasons for Decision
Factual Background to the Appeal
The Request for Information
1. Does the Parish Council have its own Code of Conduct or does the Model Code approved by Parliament apply? In the case of the former, I request a copy. I have a copy of the Model Code.
2. Which person or authority called the September 23rd 2004 meeting? The circular letter received by some parishioners, dated September 20th 2004, states "The Parish Council have organised a Parish Meeting". However you, in your letter to me dated December 17th 2004, state "The Parish Council did not arrange the meeting".
3. Was the meeting referred to intended to be a public meeting open to any interested person or a Parish meeting restricted to Parish residents?
4. If it was a public meeting:
(a) why were you present in your Parish capacity and advising on Parish procedures and advising on "how to object" (to a planning application)
(b) why were apologies from Parish Councillors read out?
(c) why did the September 20th circular say it was a Parish meeting?
(d) what procedures was used to determine by whom the meeting was chaired?
5. If it was a Parish meeting:
(a) why were any non-Parish residents present?
(b) why were those people allowed to be present throughout, to speak and to seek to influence proceedings?
(c) Why was the meeting needed in the light of the decision taken by the Parish Council nine days earlier at one of the regular meetings?
6. Were all Parish Councillors consulted about having a meeting and, if so, did they think it was to be Parish or public?
7. How many parishioners were sent letters advising them of the meeting?
8. From what source did funds come to pay the cost of stationery, first class postage and other costs associated with September 20th circular letter?
9. Was the Parish Council involved in the preparation and delivery of paperwork to do with the September 23rd meeting which was received at the homes on non parish residents?
10. From what source did funds come to pay the costs incurred in holding the village hall meeting on September 23rd 2004 and the meeting held on January 6th 2005 which was held by Mr Bacon and at which the Parish Council Chairman acted as Secretary?
11. Which Parish Councillors consider themselves members of Mr Bacon's group which he claimed to have formed?
The Complaint to the Information Commissioner
"Yes the Parish Council has approved and uses the standard Code of Conduct used by the majority of Parish Councils."
In answer to questions 2 – 11, she stated:
"The Parish Council has no written record regarding this meeting".
That wording varied slightly in relation to some of the questions, but the substance of the answer remained the same.
The Decision Notice
"…… a public authority must comply with Section 1(1) promptly and in any event not later than 20th working day following the date of receipt".
"Any person making a request for information to a public authority is entitled
(a) to be informed in writing by the Public Authority whether it holds information of the description specified in the request, and
(b) if that is the case, to have that information communicated to him".
"2 …… the Council has stated that the meeting, about which information was requested, was not organised by the Council and consequently they do not hold information relating to this meeting. There is no evidence available to the Commissioner that suggests that it is likely that information has been withheld from response to the information request. The Commissioner is satisfied that the Council have complied with the requirement of Part 1 of the Act in that they have dealt with this information request in according with Section 1(1)."
The Appeal to the Tribunal
on such an appeal, the tribunal may review any finding of fact on which the notice in question was based.
Findings of Fact
13.1 On 20th September 2004 a letter was written to a number of Parishioners, including Mr and Mrs Reed. The letter is written from the home address of Mr Chris Yates, the Chairman of the Parish Council.
Re: Parish Council Dear parishioner
Re: The Pheasant at Linley: application to de-licence
Due to the volume of calls with reference to the above application, the Parish Council have organised a Parish Meeting on Thursday 23rd September 2004 at 7.30 p.m. at Astley Abbotts Village Hall. Please arrive earlier if possible This meeting is to allow Parishioners to give their opinion and points of view to the Parish Council.
pp NJ Milner [a handwritten signature]
13.2 The meeting was chaired by Mr Yates, the Chairman of the Parish Council. Mrs Madeley, the Clerk to the Parish Council, sat with him at the front of the meeting and took notes at the meeting. During the meeting, she advised him on procedural questions. Parish Council views and Parish Councillors were referred to during the meeting. However, in response to a question from Mr Reed, Mr Yates stated that "the meeting was a public one and not a Parish one" (see Mr Reed's letter of December 13th 2004).
13.3 Mrs Madeley states that only she, as Clerk, can call Parish meetings on behalf of the Parish Council; that she did not do so on this occasion; and that if she had, she would have done so on Parish Council headed note paper, not using the Council Chairman's home address. She states that neither she nor Mr Yates know who the NJ Milner is who signed the letter on Mr Yates' behalf.
13.4 The minutes of the Parish Council meetings for the following months contain a number of references to the planning application for the Pheasant Inn, but contain no references to the meeting of September 23rd. Nor do they contain any reference to the fact that a letter had been circulated in the village purporting to be on Parish Council business and on behalf of the Parish Council Chairman, sent by an unknown and unauthorised person.
13.5 The Parish Council accounts for the year 2004-2005 show a number of entries relating to the hire of the village hall on occasion, but none of these relate to the 23rd September 2004 or 6 January 2005. On occasion, they show entries for postage. None of these relate to correspondence of 20th September 2004.
13.6 In a letter of 28th September 2004 to the planning authority, Bridgnorth District Council, Mrs Madeley, on behalf of the Parish Council, objected to the planning application and stated: "A meeting of residents was held last week. Whilst no vote was taken the overall feeling of the meeting was that the pub should not be permitted to become a house."
13.7 Astley Abbotts Parish is a small parish consisting of several small hamlets. There are some 250 residents on the electoral role. Mrs Madeley is a qualified Parish Council Clerk; she is contracted to work for the Parish Council for 3 and a half hours a week. She keeps the Minutes of the Parish Council meetings and holds the records of the Parish Council. If the Parish Council were to organise a Parish meeting it would do so in accordance with the Local Government Act 1972 Schedule 12 (Astley Abbotts Parish Council response to the appeal, point 32.)
13.8 Part III of Schedule 12 of the Local Government Act 1972 contains provisions for the conduct of Parish meetings. Paragraph 15 provides:
(1) A Parish meeting may be convened by –
(a) A chairman of the Parish Council, or …….
Conclusion of the Appeal