Alain Oliver v The Information Commissioner [2025] UKFTT GRC 910

Background & Chronology of Events

1. This is an appeal against the Decision Notice of the Respondent (“the Commissioner”), referenced IC-310347-S5M6, dated 11 th November 2024.

2. On 4 th September 2024, the Appellant made a request to Hampshire County Council (“the council”) in the following terms: “1. What weight in law do any of the shared lives agreements, such as the carer agreement, the licence agreement, and the purchase agreement for residential nursing care, hold in accordance with existing legal frameworks?

2. Within the shared lives agreements, could you please direct me to the specific section where it is stated that when respite care is taken and paid for, there is a non-payment period of 1 ½ weeks per year?

3. Could you indicate the clause within the shared lives agreements which specifies that during respite periods, the rent will not be paid for the service user’s room?

4. In the licence agreement, where the items provided by carers are listed, could you please point out where it is mentioned that the cost cannot increase as the price of these goods and services increase?

5. I request a comprehensive breakdown of the food, bills, and rent components, including details on what these charges encompass, such as cleaning products, toilet paper, Internet services, council tax, cooking fuel, freezer fuel, fridge fuel, lighting of communal areas, etc.

6. There is an assertion that legally the food and bills cannot be increased, requiring service providers to operate at a loss. I seek clarification from the legal department, along with any supporting documentation, as this contradicts prior understandings.

7. Is it reasonable to infer that the daily fee within the arrangement for the purchase of service for residential nursing care is the daily fee for care, food, bills, and rent?

8. Could you provide insight into the legal standing of the shared lives agreements, including the care agreement, license agreement, and arrangement for purchase of service for residential nursing care?

9. Are Hampshire County Council’s codes of conduct qualified or absolute in nature?

10. Do Hampshire County Council’s policies carry a qualified or absolute status?

11. Were individuals names [names redacted] and [name redacted] subjected to a banding assessment? If not, kindly provide the reasons for this omission and clarify if this was a policy at the relevant time.

12. Is it possible to retrospectively apply banding assessments to rectify underpayments, and has this procedure been executed previously? I request documented evidence of this, as mentioned by [name redacted] this has happened to him.

13. I’ve faced challenges in communicating out terms and conditions and the possibility of joining a union with colleagues. Attempts to circulate a letter through management were denied or altered. Could you confirm if this contravenes human rights legislation?

14. May I request access to any information held by Hampshire County Council that pertains to me?”

3. On 8 th November 2023, the council responded to the request, stating that questions one and eight were outside the scope of the Freedom of Information Act 2000 (“FOIA”) as the requests did not relate to existing recorded information. A response was provided in relation to questions two, three, four, five, six, seven and twelve. In relation to questions nine, ten and thirteen, the council stated that the questions fell outside the scope of FOIA because they either requested a legal opinion or council’s opinion on certain matters. In respect of question eleven, the council refused to disclose the information, relying upon the exemption contained within section 40 FOIA (personal information), and in relation to question fourteen, it advised the Appellant to submit a subject access request. The internal review and response

4. The Appellant requested an internal review of the council’s decision on 13 th November 2023, challenging the response he had received to questions one, two, three, four, five six, eight, nine, ten, eleven, thirteen and fourteen. The Appellant thanked the council for the answer provided in response to question seven, and he did not request an internal review of the response to question eight.

5. Following an internal review, the council wrote to the Appellant on 29 th January 2024 to notify him of the outcome. The council set out its final position in respect of questions six, eight, nine, ten, eleven, thirteen and fourteen. It introduced the exemption contained within section 42 FOIA (legal professional privilege) in relation to questions one, three, four, six, eight, nine, ten and thirteen. Complaint to the Commissioner and Decision Notice

6. The Appellant complained to the Commissioner in a letter, dated 1 st March 2024. The complaint was accepted for investigation by the Commissioner on 18 th May 2024.

7. The investigation established that the council had sought to apply the section 42 FOIA exemption to information which the council would need to create in order to respond to those questions. The Commissioner therefore advised the council that there was no requirement to create new information in order to respond to an information request. In light of this advice, the council reviewed each element of the FOIA request again, providing a new response to the Appellant on 24 th September 2024.

8. The Commissioner acknowledged that a number of responses had been sent to the Appellant in relation to the questions asked, but states in his Decision Notice that he “does not consider this has been an attempt to mislead or confuse the complainant, but rather an attempt to issue the correct response to each [question] that is in accordance with FOIA, whilst providing what information or explanation it can.”.

9. The Commissioner ultimately decided that, following the council’s final response of 24 th September 2024, that it had now handled the Appellant’s request in accordance with FOIA. The Commissioner went on to set out the reasons for his decision for each question posed by the Appellant. Question 1

1. What weight in law do any of the shared lives agreements, such as the carer agreement, the licence agreement, and the purchase agreement for residential nursing care, hold in accordance with existing legal frameworks?

10. Agreeing with the council, the Commissioner confirmed that this question is phrased in such a way as to ask for the council’s interpretation in law of aspects of the Shared Lives Agreement, which is not already held in recorded form. However, the Commissioner noted that council had disclosed a copy of the agreement in place at the time of the request, and the latest version, which has since been amended. The Commissioner therefore concluded that the council had disclosed all relevant information that it did hold, and determined that this element of the request had been handled in accordance with FOIA. Question 2

11. The Commissioner stated that the council’s initial response of 8 th November 2023 was the correct response, as that confirmed that there was no relevant section within the Shared Lives Agreement. That response referred to correspondence having been sent to the Shared Lives Carers highlighting this arrangement however, and a later requestion from the Appellant seeking the correspondence referred to in that initial response should have been treated as a new request for information under FOIA, as it did not fall within the scope of the original request.

12. The council’s later response referred to the copies of the Shared Lives Agreement at the time of the request, and at the time of writing, being provided by way of assistance to the Appellant (see paragraph 10 above). Question 3

3. Could you indicate the clause within the shared lives agreements which specifies that during respite periods, the rent will not be paid for the service user’s room?

13. The Commissioner noted that the council had tried to explain from its perspective how rent is paid and provided the Appellant with copies of the agreement in place at the time of the request and at the time of writing. The complainant disputes this and believes that the practice he has alleged in this question does take place. The council has confirmed that the complainant’s ongoing debate around this issue and the council’s interpretation and opinion on that is not held in existing recorded information. As such, the Commissioner’s view is that the council would have to create new information in order to respond further, which is outside the scope of FOIA. Question 4

14. The Commissioner noted that the council’s original response was that the agreement did not contain such a clause. The Appellant challenged this, stating that he was not asking whether the agreement has a specific clause to increase charges, but instead whether the costs could not be increased in line with prices stated in the agreement.

15. In a subsequent response, the Commissioner noted that the council stated that it considered the complainant’s ongoing questioning about this aspect of the request to be a request for its interpretation of specific elements of the agreement and the costs of services. The council went on to state that such an interpretation or opinion is not held in existing recorded information and a response would therefore be outside the requirements of FOIA. The Commissioner considered that that the council had responded to this request in accordance with FOIA, as it had confirmed that there was no clause of the nature specified and consequently no recorded information dealing with this request. The Commissioner confirmed that the council would need to create new information which is not a requirement of FOIA. Question 5

16. The Commissioner noted that the council disclosed the recorded information it held in its initial response, which outlined the client daily living contribution and how this was made up of six components. For each component, the council had outlined the individual amount. The complainant, however, considered that the response was vague and confirmed that they required a more detailed breakdown. The council responded to state that it had made further enquiries with its Adults Health and Social Directorate, and that it had carried out a search of service records to ascertain whether a more detailed breakdown was held. The council further explained that it had consulted with Shared Lives Plus and other Shared Lives schemes. Following those enquiries, the council confirmed that it did not hold any further information beyond that which had already been disclosed.

17. The Commissioner’s decision in respect of this question was that the council had disclosed the recorded information that it did hold, and had consequently dealt with this request in accordance with FOIA. Question 6

18. The Commissioner decided that this question was outside the scope of FOIA. He considered that the Appellant was asking the council to take action and do something specific. The Appellant was seeking “clarification from the legal department”, which amounts to a request for the legal department to take action and do something specific. As this is not a request for recorded information, the Commissioner concluded that this was outside the scope of FOIA.

19. The second part of the request was seeking “any supporting documentation”. The Commissioner noted that the council had carried out relevant searches for information, and had confirmed that it knew that it did not hold any recorded information which addressed the Appellant’s assertion or records the council’s interpretation or response to it. The Commissioner again noted that answering this part of the request would necessitate the creation of new information, which is outside the scope of FOIA. Questions 7, 8, 9 and 10

7. Is it reasonable to infer that the daily fee within the arrangement for the purchase of service for residential nursing care is the daily fee for care, food, bills, and rent?

9. Are Hampshire County Council’s codes of conduct qualified or absolute in nature?

10. Do Hampshire County Council’s policies carry a qualified or absolute status?

20. The Commissioner determined that each of these questions asked the council to agree or not with the complainant’s interpretation of the daily fee, and asking the council what legal standing the agreements have. Additionally, these questions ask about the council’s code of conduct and policies and whether they hold qualified or absolute status.

21. The Commissioner noted that the council had stated that these questions were outside the scope of FOIA, as they are asking for the council’s opinion and interpretation of the agreements in place. He noted that two of the questions were additionally requesting the council’s legal position in respect of its code of conduct and policies. He noted that the council had confirmed that it does not hold any recorded information which would provide the answers to these questions, and that responding would necessitate the creation of new information, which is outside the scope of FOIA. The Commissioner therefore decided that the council had complied with its obligations under FOIA. Question 11

22. The Commissioner noted that the council applied the exemption conferred by section 40 FOIA (personal information) to withhold the information, as it related to the personal data of the two named individuals whose names were subsequently redacted. The council stated that this information was the personal data of those private individuals and that disclosure would be unfair, unlawful and in breach of the Data Protection Act.

23. The Commissioner decided that the information in question was the personal data of individuals others than the requester (section 40(2) FOIA), and that the first condition was satisfied (section 40(3A)(a) FOIA), in that the disclosure would contravene one of the data protection principles (as set out in Article 5 of the UK General Data Protection Regulation (“UK GDPR”)). The data protection principle which would be contravened was determined to be Article 5(1)(a) of the UK GDPR, which states that “Personal data shall be processed lawfully, fairly and in a transparent manner in relation to the data subject” . Additionally, the Commissioner determined the data in question to be ‘special category data’, requiring special protection by virtue of its status. In this instance, the data in question related to vulnerable adults in receipt of adult social services care and whether they have been subject to a banding assessment. The Commissioner’s view was that this information relates to the health and social care of these individuals and the financial support they receive, which falls within the definition of special category data.

24. In view of the fact that the council had stated from the outset that they were relying upon section 40 FOIA, the Commissioner was satisfied that the council had handled its response to this request in accordance with FOIA. Question 12

25. The Appellant confirmed in correspondence to the Commissioner that they require the council to directly respond to the question, but that they do not wish to have sight of documents or information. This therefore formed the basis of the Commissioner’s investigation into this question, having agreed this with the Appellant. The council confirmed that it did hold recorded information which would enable it to answer this question and issued a response to the complainant on 7 th November 2024. The response confirmed that it was not possible to retrospectively apply banding assessments, and it confirmed that there was no policy or procedure in place of this nature. The council explained that it carried out a review of the funding provided for the care of Shared Lives service users in 2023/2024, in which the fees paid for the care of service users were reviewed and any increase in banding (and the subsequent fee) was backdated to 1 st April 2023. It explained that this was an isolated event and there had never previously been a retrospective review prior to 2023/2024, and the council does not intend to repeat the exercise.

26. The Commissioner considered that this revised response of 7 th November 2024, which followed previous responses of 8 th November 2023, 29 th January 2024 and 24 th September 2024, answered the question in accordance with FOIA. Question 13

27. The Commissioner agreed with the council that this was not a request for recorded information, but was instead asking the council to consider its actions in relation to the complainant, and to provide legal opinion or position on whether it considers its actions are in accordance with human rights legislation. The Commissioner’s decision was that the council was not required to respond to this question. Question 14

14. May I request access to any information held by Hampshire County Council that pertains to me?”

28. The Commissioner agreed with the council that this was a subject access request and should be handled under the Data Protection Act 2018 rather than FOIA. The Commissioner decided that the council was entitled to withhold the information under the exemption conferred by section 40(1) FOIA. Other matters

29. The Commissioner noted that the council provided the correct response to question 12 and copies of the Shared Lives Agreements to the Appellant late (i.e. outside the statutory timeframe of 20 working days for compliance as set out in section 10 FOIA), and consequently recorded that the council had breached sections 1 and 10 of FOIA. The Appeal and Responses

30. The Appellant submitted his appeal to the Tribunal on 6 th December 2024. His Appeal Notice sets out that his reasons for his appeal relate to the Commissioner’s decisions in relation to questions 2, 5, 7, 11, 12 and 14. Additionally, the Appellant raises that there may have been contraventions of section 77 FOIA and a breach of section 16 FOIA. His reasons are summarised as follows: (i) That the council’s responses to questions 2 and 14 show a pattern of obstruction and inadequate responses, resulting in his questions being left unanswered. (ii) That when he was directed by the council to make a subject access request, the council was under a duty to provide advice and assistance under section 16 FOIA. When email correspondence was requested, no information was disclosed. (iii) That in relation to question 5, an untruth in the response from the council was highlighted, namely that the figures provided are 15 years old. This is something which has been ignored by the Commissioner. (iv) That there has been inconsistency in the handling of his request in relation to question 7, as the council initially provided an answer to the question, but then in their email of 25 th September they claimed that the question fell outside the remit of FOIA as it did not constitute a request for information. By answering the question and later introducing new restrictions, the council demonstrated a lack of consistency. Despite bringing this to the attention of the Commissioner, the issue appears to have been overlooked, being dealt with in the Decision Notice with unrelated matters. (v) That in relation to question 11 and 12, the council has failed to provide transparent and accurate information about their processes under Care Act legislation and their assessment of individuals in need of care. Redactions could have been used to protect the privacy of the individuals named without impacting the substance of the responses. (vi) In relation to question 14, having been directed to make a subject access request, when I submitted the request the council wrote back to me to state that they held no personal information about me. This is both implausible and unacceptable. I have worked for the council for over a decade, during which they would have been legally obligated to maintain employment and other related records. (vii) That concerns were raised with the Commissioner that the council was using alternative processes, such as subject access requests, to subvert the FOIA process and avoid providing information. The Commissioner failed to address this broader issue adequately, grouping these questions separately and neglecting the cumulative impact of these responses. (viii) That in response to the Commissioner’s request for a straightforward “yes” or “no” answer to question 12, the council provided a response that itwas knowingly and deliberately false. Their answer contradicts evidence I have obtained, which confirms that the council’s actions were inconsistent with their legal obligations under the Care Act. (ix) That the public interest in this matter is undeniable. Ensuring compliance with the Care Act is critical to safeguarding individuals at risk and holding public authorities accountable. The council’s obstructive behaviour and failure to provide accurate information undermine this accountability and risk further harm to vulnerable individuals. (x) There have been potential contraventions of section 77 FOIA. The council’s knowingly false and obstructive responses in this case, particularly with regards to question 12, may indicate an intention effort to obscure unlawful behaviour. (xi) The Appellant additionally seeks a declaration about the public authority’s conduct, and for the Tribunal to recommend a review of the council’s practices to address these shortcomings and ensure future compliance with legal requirements.

31. The Commissioner’s Response confirmed that he maintained his position as stated in his Decision Notice. However, some of the key points within the Response are summarised as follows: (i) The Commissioner maintains his findings in relation to question 2 and all of the other questions asked by the Appellant. (ii) That it is not accepted that there is a breach of section 16 in relation to the council’s handling of any questions. (iii) That in relation to question 5, the Commissioner maintains, on the balance of probabilities, the council does not hold any further relevant recorded information. (iv) That it is unclear what additional advice and assistance beyond that already provided in its further correspondence of 24 th September 2024 could assist in relation to the response to question 7 of the Appellant’s request. (v) That in relation to question 11, the Commissioner has set out the basis upon which he found that section 40(2) FOIA was engaged in respect of the information requested by the Appellant. (vi) That the Appellant has failed to set out what additional information he considers to be held by the council in respect of question 12, particularly when set against the comment in his communication of 8 th October 2024 that he only sought a “..simple “yes” or “No”…” response in any event. The Commissioner therefore maintains the findings of his Decision Notice. (vii) That in relation to question 14, any request under the Act seeking the personal data of the requester is automatically exempt under section 40(1) FOIA, and the council’s handling of the subsequent subject access request is not a matter within the remit of the Tribunal. (viii) That the Tribunal has no remit to consider section 77 FOIA matters. (ix) That the Tribunal has no remit to make any declarations or recommendations for a review in respect of the council. Applicable Law

32. The relevant provisions of FOIA are as follows: Section 1(1) FOIA: General Right of access to information held by public authorities 1(1) Any person making a request for information held 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. ….. Section 40 FOIA: Personal Information (specifically s.40(1), 40(2), and 40(3A) 40(1) Any information to which a request for information is exempt information if it constitutes personal data of which the applicant is the data subject. (2) Any information to which a request for information relates is also exempt information if – (a) it constitutes personal data which does not fall within subsection (1), and (b) either the first, second or third condition below is satisfied. (3A) The first condition is that the disclosure of the information to a member of the public otherwise than under this Act – (a) would contravene any of the data protection principles, or (b) would so if the exemptions in section 24 ()1) of the Data Protection Act 2018 (manual unstructured data held by public authorities) were disregarded. …… Section 57 FOIA: Appeal against notices… (1) Where a decision notice has been served, the complainant or the public authority may appeal to the Tribunal against the notice. Section 58 FOIA: Determination of appeals (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 the 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. The Appeal Hearing Preliminary matters

33. The parties had submitted written evidence to the Tribunal prior to the hearing, comprising of a Bundle of 92 pages, prepared by the Appellant, and a further bundle of 209 pages, prepared by the Respondent. Whilst the Appellant had prepared a bundle in advance of the hearing, the timeframe was such that there was insufficient time for the Respondent to liaise with the Appellant to arrange for the inclusion of materials which the Respondent wished to be placed before the Tribunal. The Respondent therefore prepared his own bundle for the Tribunal, incorporating the material contained within the Appellant’s bundle, but which additionally includes the additional material which the Respondent wished to be placed before the Tribunal.

34. The Appellant confirmed before the hearing that he wished to rely upon his own bundle, which he had spent considerable time and effort to produce, and in order to ensure that he was able quickly to direct the Tribunal to key parts of his bundle as necessary. Whilst I understand that position, I must additionally have regard to the Overriding Objective of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (“the Rules”), which is “to enable the Tribunal to deal with cases fairly and justly.” (Rule 2(1)). In the circumstances, and having regard to the relatively small size of the bundles, I am content for there to be two bundles for the Tribunal’s reference in this appeal, and I therefore exercise my case management powers under Rule 5(1) of the Rules to regulate the Tribunal’s procedure and permit both bundles to be placed before the Tribunal.

35. The Appellant was informed at the outset of the hearing that proceedings under section 77 FOIA are not matters for this Tribunal to consider, and that in England and Wales such proceedings may only be instigated “by the Commissioner or by or with the consent of the Director of Public Prosecutions” (section 77(4)(a)). Additionally, the Appellant was informed that the Tribunal has no power to make any declarations about the council’s conduct or to recommend “a systemic review or changes to their processes” , which he had stated as being two of the three outcomes he was seeking from this appeal.

36. It was explained to the Appellant that the only outcome he was seeking, which this Tribunal has power to deal with, is in relation to the Decision Notice of the Commissioner, and it is for the Tribunal to determine whether the Decision Notice is wrong in law. As the Commissioner has not been required to exercise any discretion in relation to any of the exemptions relied upon by the council, it will not be necessary for the Tribunal to consider section 58(1)(b) FOIA.

37. The Appellant was informed that any matters relating to alleged breaches or non-compliance with the requirements of the Care Act 2014 are not matters for this Tribunal to consider for the purposes of this appeal hearing, and that he may wish to seek independent legal advice should he decide to pursue those matters elsewhere. Evidence

38. In addition to the materials contained within the two bundles, the Tribunal had the benefit of the following, which was all taken into account in making our decision: a) Written submission of the Appellant (contained within the Appellant’s bundle); b) Oral submissions from the Appellant at the hearing. Discussion and Conclusions

39. In accordance with section 58(1)(a) FOIA, the role of this Tribunal is to consider whether the Commissioner’s Decision Notice was in accordance with the law. The Tribunal’s jurisdiction is limited to issues that are actually dealt with in the Decision Notice, but as set out in section 58(2) FOIA, it is open to the Tribunal to review any finding of fact on which the Decision Notice was based. This means that the Tribunal can review all of the evidence provided to it and make our own decision.

40. The issues in this appeal are first, whether the information being sought by the Appellant is held by the council for the purposes of section 1(1) FOIA, and secondly, where it is determined to be held, whether the council was entitled to rely upon the exemption stated to withhold the information. In this instance, the only exemptions relied upon by the council are those contained within section 40 FOIA (personal information).

41. It is not disputed that the council disclosed copies of the Shared Lives Agreement which it held at the time that the original request was made by the Appellant on 4 th September 2024. In doing so, it provided the Appellant with a version of the agreement which was in place at the time of the request, and a subsequent version which had been amended at a point after the request had been made.

42. Dealing with each of the questions in turn:

43. This question asks the council to provide its opinion or interpretation on the law in relation to the various agreements in existence which are included within the Shared Lives Agreements. The council has confirmed that it does not hold such an opinion or interpretation in recorded form, and to answer this question it would need to draft, and thereby create, new information, which is not a requirement of FOIA. The Tribunal therefore agrees with the decision of the Commissioner, in that this information is not held by the council for the purposes of section 1(1) FOIA.

44. The council confirmed within its initial response to the Appellant that there was no such section which states this within the agreement. In effect, that response confirmed that the council did not hold the information for the purposes of section 1(1) FOIA, which was the decision of the Commissioner. The Tribunal concludes that this was the correct decision of the Commissioner, as the information being requested did not exist at the time of the request and was consequently not ‘held’ for the purposes of section 1(1) FOIA.

3. Could you indicate the clause within the shared lives agreements which specifies that during respite periods, the rent will not be paid for the service user’s room?

45. In relation to this question, the Commissioner decided that the council had sought to explain how rent is paid, and having provided copies of the Shared Lives Agreements, it had provided what information it did hold. The council stated that there was no such clause contained within the agreement, and the Tribunal therefore agrees with the Commissioner that the information which the Appellant seeks to obtain from the council does not exist and is therefore not held for the purposes of section 1(1) FOIA.

46. As with the preceding questions, the council stated in its initial response to the Appellant that the agreement does not contain such a clause. Thereafter, when the Appellant sought to explain that he was not asking whether there is specific clause to increase charges, but rather he wanted to know whether the costs could not be increased, he was asking for the council’s interpretation or opinion on specific elements of the agreement. The council again confirmed that it did not hold this information in recorded form.

47. The Commissioner decided that the council was correct in its initial response which stated that there was no such clause, and having provided copies of the Shared Lives Agreements, it had complied with its requirement under FOIA. The Tribunal agrees with this decision. It is clear that the information being requested in this instance is not held by the council for the purposes of section 1(1) FOIA. Any provision of information would therefore require the council to create new information, which did not exist at the time of the request.

48. In relation to question five, the Commissioner’s decision was that, on the balance of probabilities, the council did not hold any information other than it had already provided to the Appellant. The Commissioner referred to the council having disclosed the recorded information that it did hold, namely an outline of the client daily living contribution and the six components that made up that sum. For each of those six components, the Commissioner noted that the council had provided individual sums. Beyond that, the council stated that it did not hold any further information.

49. Additionally, in a subsequent response to the Appellant, the Commissioner noted that the council had carried out searches of service records and had consulted with other Shared Lives schemes in an effort to locate any information containing a more detailed breakdown, but had nonetheless failed to find any relevant information.

50. Despite the Appellant’s stated need for more detail, the Tribunal is satisfied to the required standard, namely on the balance of probabilities, that the council does not hold any further information for the purposes of section 1(1) FOIA, and therefore agrees with the decision of the Commissioner. In particular, the Tribunal has had regard to the fact that the council had carried out these additional searches and their efforts to locate any relevant information, having already disclosed copies of the Shared Lives Agreements to the Appellant.

51. The Commissioner considered that this request was essentially in two parts. The first part asked the council’s legal department to provide a response, setting out its legal position to the assertion advanced by the Appellant in the statement which precedes the question. The second part (i.e. “along with any supporting documentation”) requires the council to provide any recorded information which addresses this assertion or would otherwise support any opinion of the legal department. The Commissioner noted that the council had carried out searches and knows that it does not hold any recorded information which addresses the Appellant’s assertion.

52. In its response to the Appellant, the council stated that the first part of the request was outside the requirements of FOIA, and in relation to the second part, the council informed him that it did not hold any recorded information which would answer or address the request.

53. In relation to the first part of this question, the Tribunal concludes that the Commissioner was correct in deciding that the ‘clarification’ being sought from the legal department would require the council to take action and do something specific, which in this instance would be the creation of information containing its legal position or interpretation on the assertion made by the Appellant. This is not something which FOIA requires, and the information is not held for the purposes of section 1(1) FOIA. Additionally, the Tribunal considers that the Commissioner was correct in deciding that the council had responded appropriately to the request for any supporting documentation, as no such information existed.

7. Is it reasonable to infer that the daily fee within the arrangement for the purchase of service for residential nursing care is the daily fee for care, food, bills, and rent?

54. The Commissioner decided that this question asked the council to agree or not with the Appellant’s interpretation of the daily fee. The council responded to this request by stating that this question is outside the scope of FOIA, and the Commissioner agreed with this position.

55. The Tribunal concludes that the Commissioner was correct in deciding that this was a request for the council to provide an opinion on whether it is reasonable to make an inference. This would require the council to create new information, which is not a requirement of FOIA.

56. As with question 7, the Commissioner decided that the council was right to refuse this request as it would require the council to create new information to comply with it. The Tribunal agrees with this decision, as this is asking the council to provide its legal position or opinion in relation to the legal standing of the various Shared Lives Agreements. This is not within the scope of FOIA and would require the council to create new information.

9. Are Hampshire County Council’s codes of conduct qualified or absolute in nature?

57. As with questions 7 and 8, question 9 asks the council to provide a legal opinion or interpretation on the question of whether its codes of conduct are qualified or absolute in nature. In effect, the Appellant here is seeking the council’s legal position in relation to its own codes of conduct. This is not a request for information which the council holds and the Tribunal therefore has no hesitation in concluding that the Commissioner was correct in deciding that this was outside the scope of FOIA, and would necessitate the creation of new information.

10. Do Hampshire County Council’s policies carry a qualified or absolute status?

58. As with question 9, this is the same question, but relating this time to the council’s policies, rather than its code of conduct. Again, this would require the council to provide a legal opinion or interpretation on the status of its policies. The Tribunal again concludes that this request is beyond the scope of FOIA and would require the creation of new information in order to provide a response.

59. In relation to this question, the Commissioner decided that the absolute exemption contained within section 40(2) FOIA was engaged and that the council was entitled not to disclose the information.

60. Section 40(2) FOIA states that any information to which a request for information relates is exempt if it: (a) constitutes personal data which does not fall within subsection 1, and (b) either the first, second or third condition is satisfied. In the event that the first condition is satisfied, the exemption is absolute by virtue of section 2(3)(fa) FOIA. In all other instances, where the second or third condition is satisfied, the exemption is qualified, necessitating an additional stage where a public interest balancing exercise is required under section 2(2)(b) FOIA.

61. The relevant condition in this instance is the first condition, which is found within section 40(3A) FOIA. The relevant part of that section states that “The first condition is that the disclosure of the information to a member of the public otherwise than under this Act would – (a) contravene any of the data protection principles,…” .

62. The redacted names in this question were originally included by the Appellant in his request for information, but were then redacted by the council when responding to the request. The names of the individuals concerned are therefore known to the Appellant.

63. It is clear that the information in question relates to identified individuals, and as such the information is personal data for the purposes of the Data Protection Act 2018 , relating to any banding assessments carried out in relation to those two persons. However, before the exemption may be relied upon, it must be established that the first condition is satisfied, requiring consideration of whether disclosing the information would contravene any of the data protection principles. Section 40(7) FOIA stipulates that “the data protection principles” are those set out in Article 5(1) of the UK GDPR and section 34(1) of the Data Protection Act 2018. The most relevant of these is Article 5(1)(a) of the UK GDPR, which prescribes as follows: “Personal data shall be processed lawfully, fairly and in a transparent manner in relation to the data subject.”

64. Processing in the case of a FOIA request means when personal data is disclosed in response to a request. Consequently, its disclosure may only take place if doing so would be lawful, fair and transparent. Processing shall only be lawful if at least one of the 6 conditions contained within Article 6(1) of the UK GDPR is satisfied. However, Article 9 of the UK GDPR provides special status to certain types of personal data, including data concerning health. The question in this instance relates to the banding assessment of two named individuals who are in receipt of adult social services care. The information clearly concerns their health, which is one of the special categories of data for the purposes of Article 9 of the UK GDPR. As such, more stringent conditions are imposed on the processing of this data, requiring an Article 9(1) condition to be satisfied before its processing (including disclosure) may be considered lawful.

65. In terms of the conditions set out under Article 9(1), the Tribunal agrees that the only conditions which could be relevant to disclosure under FOIA are the following conditions: Article 9(2) a) the data subject has given explicit consent to the processing of those personal data for one or more specified purposes…. … e) processing relates to personal data which are manifestly made public by the data subject.

66. In the absence of any indication that the two named individuals have specifically consented to this data being disclosed to the world in response to this FOIA request or any evidence that they have deliberately made this data public, neither of these two conditions is satisfied. The Tribunal therefore agrees with the Commissioner that the disclosure of this information would contravene Article 9(2)(a) of the UK GDPR. Accordingly, section 40(2) FOIA is correctly engaged and the council were entitled to rely upon it to withhold the information.

67. The Appellant confirmed with the Commissioner, as part of the investigation, that they required the council to directly respond to the question asked and stated that they believe the council holds the relevant recorded information to enable it to respond. Despite the question stating that documented evidence was required, the Appellant confirmed to the Commissioner that they did not wish to have sight of any documents or information. The Commissioner therefore investigated the handling of this question in line with that approach.

68. In its further response of 7 th November 2024, the council confirmed that it is not possible to retrospectively apply banding assessments, stating that there was no policy or procedure in place of this nature. However, it confirmed that it had carried out a review of the funding provided for the care of Shared Lived service users in 2023/2024, but it explained that this was an isolated event which the council did not intend to be repeated. The decision of the Commissioner was that this response answered the question posed in accordance with the requirements of FOIA.

69. The Tribunal concludes that, on the balance of probabilities, the council has disclosed all of the information that it holds, and that it has complied with section 1(1) FOIA. Accordingly, the Commissioner’s decision in relation to this question was not wrong in law.

70. Here, the Appellant has set out the difficulties that he has encountered with the council in terms of communicating and joining a union. In asking the council to confirm whether the council has acted in contravention of human rights legislation, the Appellant is asking the council to consider its actions and provide a legal opinion or position in relation to the issues he has encountered. The Commissioner decided that this question was outside the scope of FOIA, as it required the council to create new information rather than provide recorded information. The Tribunal agrees with this view and concludes that this stance is in accordance with FOIA, as the council is not required to provide a response to this request.

14. May I request access to any information held by Hampshire County Council that pertains to me?”

70. The Commissioner agreed with the council that this was a request for the personal data of the applicant and would engage the absolute exemption conferred by section 40(1) FOIA). The Tribunal agrees with this position and concludes that the Commissioner’s decision was in accordance with the law.

71. For all of the reasons set about above, the Tribunal concludes that the Commissioner’s Decision Notice is in accordance with the law.

72. The appeal is dismissed. Signed Date: Judge Armstrong-Holmes 29 th July 2025

Full judgment