General Regulatory Chamber
Information Rights
B e f o r e :
TRIBUNAL MEMBER MARION SAUNDERS
TRIBUNAL MEMBER SUSAN WOLF
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PETER STEAD |
Appellant |
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INFORMATION COMMISSIONER |
Respondent |
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Crown Copyright ©
Decision:
The Appeal is refused.
Introduction
Background to the Appeal
"Please send to me the names of the individuals who attended the DCMS Bullying and Harassment Roundtable meetings. If they represented an organisation, please tell me which. Please search only after the 25th October '22 to before 28th November '23".
This Appeal
a. A number of the statements relied on by DCMS to explain why they do not hold this information are "questionable or provably incorrect". Specifically, the Appellant contends that DCMS is incorrect to state (i) that these meetings are "not DCMS roundtables" and (ii) DCMS hosted one roundtable in June 2021. The Appellant also contends that it is irrelevant that DCMS states that as a result of this roundtable, a working group was created which is chaired by Creative UK. He also asserts that is also not relevant who 'led' these meetings, and whether or not DCMS led or hosted these meetings are not "the most relevant factors" in assessing DCMS's position.
b. One of the roles DCMS plays for these meetings, as it has previously confirmed is to act as the "secretariat", in which role it produces minutes to give to Creative UK who then refine them before distribution. It is therefore likely that DCMS followed its usual procedure, creating minutes which recorded the names of individual external attendees and sent the complete minutes to Creative UK. It is then likely that Creative UK removed them.
c. Creative UK has previously refused to provide the Appellant with information about individual attendees at these meetings. He claims that Creative UK previously gave him "false" information about a particular attendee at a previous meeting, which he was ultimately able to discover through a separate request under FOIA for other minutes of these roundtable meetings. The Appellant suggest that Creative UK may have been seeking to "cover up a previous attempt at a cover up". The Appellant suggests that the timing of the two meetings in April and July 2023 correlates in similar time to when he started to question Creative UK about the attendees at these meetings, and that Creative UK may have been seeking to remove the name from the minutes of these meetings as a method of concealment. Once the Appellant had been successful in learning about the other meetings and their attendees in October 2023, Creative UK reverted to its previous practice of identifying individuals in the minutes of the meeting in November 2023. If Creative UK did remove the names to try to conceal them from scrutiny, then it is likely that DCMS would have recorded the original names which they would still hold.
d. The Appellant alluded to his arguments as summarised at paragraphs 13.b and 13.c above in his complaint to the Commissioner, yet they are not mentioned in the Decision Notice. Accordingly, it is to be inferred that the Commissioner did not investigate these with DCMS and did not properly consider them. This was an error of law, or at least "clear evidence he should have exercised his discretion differently."
e. DCMS must have retained the information which the Appellant seeks because without it, they would not know which organisations attended.
f. The fact that DCMS attended the meetings means that its employees would also likely have known the identity of at least some of the non-DCMS individuals who attended.
g. DCMS have a "dismal record" of responding to the Appellant's requests about these roundtables.
h. The Tribunal should use its powers under r.5(3)(d) of the GRC Rules to obtain clarification from DCMS on unanswered questions such as did DCMS exclude individual attendee names from these two meetings and did they delete all other traces from their systems, and if so, why they did so.
a. If DCMS hosted the meetings, then they may hold a list of attendees for security reasons. The Appellant notes that the November 2023 meeting was held at DCMS.
b. That previous minutes taken by DCMS, and not Creative UK, show that it was DCMS's previous general practice to record individual attendee names in meetings. Accordingly the lack of individual names in the meetings in question is not a difference between Creative UK and the DCMS, as the Commissioner's Reviewing Case Officer thought, because Creative UK recorded minutes for the November 2023 meeting which did include details of individual attendees.
c. There is "direct evidence" that DCMS's search was inadequate because DCMS's search was limited to searching for the minutes rather than applying standard key word searches on its systems.
d. The Appellant considers that there "may" be a cover up and there is evidence that suggests this "could" be the case. In support of this, the Appellant also relies on different responses he received from DCMS and Creative UK in response to a subject access request made by him under Article 15.3 of the UK GDPR. The Appellant accepts that he does not say there is "definitely a cover-up", and it could simply be the case that the responses were "sloppy".
e. The Appellant then poses a number of question for DCMS, including where did the April 2023 meeting take place, acknowledging that the July 2023 meeting was "held offsite". He asks who paid for the meeting and did they record names at the meeting? He suggests obtaining a witness statement from DCMS attendee(s) at the meetings on why attendee names were not recorded.
The law
"As a general principle, the IC was, in the Tribunal's view, entitled to accept the word of the public authority and not to investigate further in circumstances, 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. Were this to be otherwise the IC, with its limited resources and its national remit, would be required to carry out a full scale investigation, possibly onsite, in every case in which a public authority is simply not believed by a requester."
Evidence
a. An internal DCMS document dated from May 2023 which states that "to assist Creative UK with resourcing this work, we also provide secretariat support to produce the draft minutes, with Creative UK then refining the draft, and sharing with the roundtable group."
b. Assorted minutes or "read outs" of roundtable meetings, chaired by Creative UK, of industry working groups to tackle the issues of bullying, harassment and discrimination in the creative industries. These minutes or "read outs" are in a variety of forms, and date between 29 June 2021 and October 2022 (distinct from those which took place in 2023 detailed below). All of these, except the minutes for July 2022, specifically identify the individual attendees at the meetings.
c. A document entitled "Bullying, Harassment and Discrimination (BHD) Roundtable Readout 11 April 2023". This lists attendees according to their organisation and does not identify the individuals in attendance. As its name suggests, this is in the form of a "read out" with associated action points identified. It does not identify where the meeting took place.
d. A document entitled "Read out: Bullying, Harassment and Discrimination (BHD) in the Creative Industries Working Group" held on 13 July 2023 between 10:00 and 12:00. Again, this is in the form of a "read out". It identifies attendees by organisations only and does not name individuals in attendance. It is a short document, only 1½ pages in length. It states that the meeting was held at LABS Hogarth House.
e. A document entitled "Bullying and Harassment Roundtable Summary Minutes and Actions" of a meeting dated 28 November 2023 which took place at DCMS (in person with video-link for virtual attendees). These bear a "Creative UK" logo and identify the names of the attendees and are set out in a format which would be typically associated with summary minutes of a meeting.
f. The response of DCMS dated 10 July 2024 to the Commissioner's questions as part of his consideration of the Appellant's complaint. In this letter, DCMS, amongst other things, states that "we did not record the names of the individuals in attendances at the two requested meetings. An electronic search was conducted by the relevant policy team to confirm this fact (by looking up the minutes, the only record of the meeting), however there was no stage at which we ever held the individual names of the people from the organisations in attendance, who are listed publicly online".
Conclusions
a. First, the Appellant's case is entirely based on speculation. Speculation does not equate to evidence. The Appellant implicitly accepted that his case is based on speculation in his Reply to the Commissioner as set out at paragraph 15.d above. "May" and "could" are not a sufficient evidential foundation to sustain this case. There is no evidence before the Tribunal, let alone sufficiently cogent evidence, to support his case of a cover-up on the part of DCMS and Creative UK to conceal the name of attendees at these meetings. Nor is there any evidential foundation from which such conduct could reasonably be inferred. The minor criticisms levelled by the Appellant in relation to DCMS's statements about these meetings, for example, who "led" the meetings, provide no evidential foundation for these assertions.
b. Second, even if the Appellant's theory (as summarised at paragraph 13.c above) as to a cover-up by DCMS were correct, it would undermine, rather than support his case that DCMS held the information he sought in January 2024. If DCMS and Creative UK were seeking to conceal the identity of attendees at these meetings after the Appellant had sought to obtain this information in 2023, then it would not make sense for DCMS to have simply removed the information from the minutes. Logically, as part of a cover-up, DCMS would have had to have deleted any other information it held also. Otherwise, the information would have been obtainable under FOIA, precisely the same way the Appellant was seeking it in the first place and the attempted cover-up by removing the information from the minutes alone would have been futile. The logical conclusion of the Appellant's theory (which we emphasise there is no evidence to support) is that DCMS would have deleted the information at some point after the meetings of April and July 2023 and before his request for the information in January 2024. That would mean, if so, that DCMS would not hold the information which he seeks.
c. Third, the Appellant contends that DCMS's search is inadequate because it only searched for the minutes of the meeting and that it failed to conduct keyword searches. However, this does not take into account the full extent of DCMS's position as set out in its letter of 10 July 2024, namely that the minutes are the "only record of the meeting". It is not clear how further keyword searches would assist when DCMS have confirmed that this is the only record it holds of the meeting. We conclude that DCMS conducted a reasonable and appropriate search in all the circumstances.
d. Fourth, the clear preponderance of the evidence supports the case that DCMS does not hold the information which the Appellant seeks in relation to these meetings. In this regard:
i. The format of the "read outs" for April and July 2023 is substantially different from those minutes or read outs which preceded these two meetings and the November 2023 meeting which followed. This is consistent with the minutes for April and July 2023 being taken by a different minute taker (or minute takers) who did not record this information.
ii. These two meetings are not the only meetings of this roundtable group which do not identify all attendees by name. The meeting of July 2022 also does not identify the attendees by their individual names. The Appellant contends that this is "an accidental anomaly", but it is further evidence that different note or minute takers had different approaches to what information should be recorded in the minutes. This is consistent with DCMS's case that there is no uniform or prescribed minute taking format.
iii. The identity of the attendees is not contained within the minutes or read outs. This is the most obvious place for the information to be contained. Its absence is therefore consistent with this information not being held.
iv. The July 2023 meeting was not held at DCMS. There was no reason for DCMS to hold information about the identity of specific attendees for organisational reasons. We do not know where the April 2021 meeting was held, but even if such information was initially held by DCMS for organisational reasons such as security, there is no reason for DCMS to have retained this information by the time of the request in January 2024. Indeed, DCMS have an obligation under the UK GDPR not to retain personal data (such as the name of attendees in a security register) for longer than is necessary.
e. Fifth, while we do not go as far as the Tribunal in Oates in suggesting that we can simply accept the word of the public authority without more and not investigate further absent good reason, we do consider that there is no evidence to justify any further searches in this case. Applying the approach of the Tribunal in Bromley, the position of DCMS has been consistent, reasonable and explicable and based on a reasonable analysis and search. It is supported by the extant evidence, principally supplied by the Appellant himself. We see no basis whatsoever to demand further evidence from DCMS. To demand further evidence from DCMS is not necessary to resolve this appeal fairly and proportionately and would be directly contrary to the overriding objective. For completeness, we note that that in its letter of 10 July 2024, DCMS has already expressly confirmed that at "no stage" did it hold the individual names of attendees. This addresses one of the Appellant's primary demands for evidence.
f. Sixth, even if the identity of some or all of the attendees at these two meetings was known to an employee of DCMS in January 2024 when the request was made, that is not sufficient for it to be held by DCMS for the purpose of FOIA. The information must be "recorded" by DCMS for it to give rise to an obligation to provide it under FOIA – see the definition of "information" in s.84 FOIA. There is no obligation on a public authority to record information even if it may be known by an employee – see for example Reed v Information Commissioner and Astley Abbots Parish Council, IT, 29 December 2008 at [12] and Ingle v Information Commissioner, IT, 29 June 2007 at [7] - [8].
g. Seventh, we reject the Appellant's contention that by not expressly addressing all of the Appellant's concerns in the Decision Notice, the Commissioner erred in law or uncritically accepted DCMS's position. There is no obligation on the Commissioner to address in a decision notice every point raised, however speculative or irrelevant. The Decision Notice is clear and precise; it properly addresses in a proportionate manner the issues which needed to be considered by the Commissioner. The parties cannot be in any doubt as to the reasons which underpinned the Commissioner's decision. Moreover, any suggestion by the Appellant that the Commissioner uncritically accepted DCMS's position is undermined by the very arguments he has himself advanced based on the Commissioner's internal documentation which sets out the deliberation and main points considered by the Commissioner's case worker. Far from uncritically assessing DCMS's position, the evidence shows that the Commissioner reasonably and proportionately critiqued DCMS's evidence.
Signed: Judge Scherbel-Ball
Dated 12 December 2024