Martin Clements v The Information Commissioner & Anor

Preliminary matters

1. In this decision , we use the following terms to denote the meanings shown: Appellant: Martin Clements. Auditor: PKF Littlejohn LLP. Commissioner: The Information Commissioner (the First Respondent). Contents: As defined in paragraph 18. Council: Potto Parish Council (the Second Respondent). Decision Notice: The Decision Notice of the Commissioner dated 12 March 2025, reference IC-329882-J6G7, relating to the Request. FOIA: The Freedom of Information Act 2000 . Relevant Request: The first part of the Request (item ‘1’, regarding information to support making a complaint about the Council’s auditor ). Request: The request for information made to the Council by the Appellant dated 11 April 2024, as set out in paragraph 5. Respondents: The Commissioner and the Council.

2. Unless the context otherwise requires (or as otherwise expressly stated), references in this decision : a. to numbered paragraphs are references to paragraphs of this decision so numbered; b. to any section are references to the applicable section of FOIA; c. to the Commissioner’s “investigation” mean the Commissioner’s investigation, for the purposes of section 50, of the Appellant’s complaint relating to the Council’s response to the Request. Introduction

3. This was an appeal against the Decision Notice, which concluded that (on the balance of probabilities) the Council did not hold any further information within the scope of the Relevant Request . Background to the Appeal

4. The background to the appeal is as follows. The Request

5. On 11 April 2024, the Appellant contacted the Council and requested information in the following terms: “1) I see in all your 2024 meeting minutes that you have raised concerns to your auditor about their work. What information do you have to support making a complaint about PKF Littlejohn, your external auditor? 2) I see question 1 in your accounting governance statement dated 16/5/2023 was answered NO, which means you admit you did not have effective financial management last year. What information do you have that explains this NO answer? 3) Why was the March 2024 Council meeting cancelled? ”.

6. The Council responded on 2 June 2024. It disclosed some of the requested information, referring to its meeting minutes to clarify its response, and gave an answer to item 3 of the Request.

7. The Appellant contacted the Council on 4 June 2024, requesting an internal review. In respect of the Relevant Request , the Appellant suggested that the Council may hold some information which formed the basis of a complaint to the Auditor. He also suggested that the Council would hold information to confirm if its complaint to the Auditor was upheld or dismissed. In respect of the second part of the Request (regarding the Council’s accounting governance statement) , the Appellant stated that the “NO answer” related to financial management of the Council, rather than the audit action plan.

8. On 17 June 2024, the Council provided the Appellant with the outcome of its internal review. The Council stated that it had not made a complaint to the Auditor and accordingly that it did not hold information within the scope of the Relevant Request . In respect of the second part of the Request (regarding the Council’s accounting governance statement) , the Council stated that it had been the recipient of a ‘Public Interest Report’ during the period in question and that it had responded “no” because not all of the actions from the ‘Public Interest Report’ had been completed when the accounting governance statement was completed.

9. The Appellant contacted the Commissioner on 3 September 2024 to complain about the Council’s response to the Request.

10. The Commissioner subsequently issued the Decision Notice. The Decision Notice

11. The Commissioner considered that the scope of his investigation was to determine whether the Council was correct in stating that it does not hold any information relating to a complaint made to the Auditor. The Decision Notice therefore addressed only the Relevant Request .

12. Paragraphs 12 to 16 (inclusive) of the Decision Notice stated as follows: “12. The request in this case is for information about a complaint the complainant believes the Council submitted to its auditors. In its initial response, the Council stated it had not questioned the auditors, but rather the validity of the objections raised by a member of the public to the accounts.

13. In requesting an internal review, the complainant argued this was tantamount to questioning its auditors. In responding, Potto Parish Council maintained its position and referred to the meeting minutes in support of it. It also re-confirmed it had made no complaint to its auditors.

14. In the course of his investigation, the Commissioner asked the Council for further context around the request and a copy of the meeting minutes referred to in its response. The Council provided this, highlighting an excerpt from January in which the Council noted a member of the public raised objections to the Council’s Annual Governance and Accountability Return (AGAR), as follows: “… the objections from a single member of the public have been reviewed by the external auditor and they are considering four of the objections from the member of the public, which may result in additional charges being levied on the parish Council. The Parish Council have raised concerns with the auditor regarding the validity of these objections. The Chairman discussed the proposed response to PKF Littlejohn regarding the four objections, the response was unanimously agreed.”

15. The Council confirmed to the Commissioner it has not raised a complaint against its auditors and has no reason to do so. It noted the Council faces additional charges for investigation of any concerns over the AGAR, and raised their concerns about the objections for this reason.

16. The Commissioner notes the Council has provided full detailed explanations and documentation of its audits and does not seem to have any reason to raise a complaint about PKF Littlejohn. He also notes the only evidence of any kind of disagreement about the audit comes specifically from a member of the public as mentioned in the meeting minutes. There is no further evidence to suggest a dispute. ”.

13. The Decision Notice accordingly recorded the Commissioner’s view that, on the balance of probabilities, no further information is held by the Council within the scope of the Relevant Request .

14. The Commissioner also determined that the Council had breached section 10(1) by failing to respond to the Request within twenty working days.

15. The Decision Notice did not require the Council to take any steps. The appeal The grounds of appeal

16. The Appellant’s position was, in essence, that the Commissioner erred in concluding in the Decision Notice that no further information was held by the Council within the scope of the Relevant Request .

17. As part of his appeal, the Appellant provided an ‘evidence letter’ from another individual, who also provided a witness statement (see paragraph 25).

18. Amongst other things, the ‘evidence letter’ contained screenshots of email correspondence between the witness and the Auditor, a copy of a letter from the Council to the Auditor dated 1 November 2022 and excerpts of a letter from the Council to the Auditor dated 24 February 2024. We refer below to those contents of the ‘evidence letter’ as the “Contents”.

19. The Appellant’s position was essentially that the ‘evidence letter’ demonstrated that the Council must hold further information within the scope of the Relevant Request . The Tribunal’s powers and role

20. The powers of the Tribunal in determining the appeal are set out in section 58, as follows: “(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. ”.

21. In summary, therefore, the Tribunal’s remit for the purposes of the appeal was to consider whether the Decision Notice was in accordance with the law. In reaching its decision, the Tribunal may review any findings of fact on which the Decision Notice was based, and the Tribunal may come to a different decision regarding those facts. Essentially, the Tribunal is empowered to undertake a ‘full merits review’ of the appeal before it (so far as the Decision Notice is concerned). Mode of hearing

22. The parties consented to the appeal being determined by the Tribunal without an oral hearing.

23. The Tribunal considered that the appeal was suitable for determination on the papers in accordance with Rule 32 of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 and was satisfied that it was fair and just to conduct the appeal in this way. The evidence and submissions

24. The Tribunal read and took account of an open bundle of evidence and pleadings.

25. The open bundle included an informal witness statement from an individual on behalf of the Appellant. It is not necessary for us to identify this witness personally in this decision - therefore we merely refer to them as “the witness” and we mean no disrespect to them in doing so. The witness stated that they had sent the Appellant the ‘evidence letter’ referred to in paragraph 17.

26. All of the contents of the bundle, including all the submissions of the parties, were read and taken into account, even if not directly referred to in this decision. The relevant statutory framework We acknowledge the Practice Direction dated 4 June 2024 ( https://www.judiciary.uk/guidance-and-resources/practice-direction-from-the-senior-president-of-tribunals-reasons-for-decisions/ ) and particularly paragraph 9, which refers to the First-tier Tribunal not needing to specifically refer to relevant authorities. We include references to the applicable legislative framework, to provide relevant context, but have accordingly not set out details of any applicable case law. General principles

27. Section 1(1) provides individuals with a general right of access to information held by public authorities. It provides: “ 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. ”.

28. In essence, under section 1(1), a person who has requested information from a public authority is entitled to be informed in writing whether it holds that information. If the public authority does hold the requested information, that person is entitled to have that information communicated to them. However, those entitlements are subject to the other provisions of FOIA, including some exemptions and qualifications which may apply even if the requested information is held by the public authority (but those are not relevant for current purposes). Section 10 - Time for compliance with request

29. So far as is relevant for current purposes, section 10 provides: “(1) … a public authority must comply with section 1(1) promptly and in any event not later than the twentieth working day following the date of receipt. ”. Discussion and findings Scope of the appeal

30. As we set out in paragraph 20 (and summarised in paragraph 21), our remit only extends to the lawfulness of the Decision Notice.

31. As we have noted, the Decision Notice addressed only the Relevant Request . Our remit for the purposes of the appeal therefore applies only to the Relevant Request (and no other aspects of the Request) . The Appellant also confirmed, in his reply to the Respondents’ responses to the appeal, that his appeal only related to the Relevant Request .

32. The ‘evidence letter’ referred to the Council allegedly breaching section 77 and the witness suggested that this should be pursued by the Commissioner “ or the appropriate prosecuting authority ”. Pursuant to section 50, the scope of the Decision Notice relates only to the Appellant’s complaint as to whether the Request was dealt with in accordance with the requirements of Part I of FOIA. Accordingly, the Decision Notice does not cover matters such as any alleged offences under section 77 (which falls within Part VIII of FOIA) and consequently we have no jurisdiction to consider matters relating to section 77. The scope of the Relevant Request

33. We start by addressing the scope of the Relevant Request .

34. As we recorded in paragraph 12, the Decision Notice reflected the Council’s views that it had not complained to the Auditor (and had no reason to do so) but had questioned the validity of objections raised regarding the Council’s Annual Governance and Accountability Return (AGAR).

35. In the outcome of its internal review relating to the Request (see paragraph 8), the Council stated: “ …PPC were not questioning the work of the auditors, rather they were questioning the validity of the objections raised. This response is based on discussions held during several parish council meetings and noted in the minutes. PPC can confirm that there has not been a complaint made to the auditors as yet therefore there are no documents available. ”.

36. Similar points were made by the Council in its correspondence with the Commissioner relating to his investigation. The Commissioner also referred to that correspondence in his response to the appeal. The Commissioner submitted that the Council had made it clear that it had not made a complaint to the Auditor and therefore does not hold any information in relation to the Relevant Request .

37. However, the Relevant Request did not ask for information relating to any complaint which was actually made to the Auditor. The Relevant Request specifically sought information “ to support making a complaint ” about the Auditor. Accordingly, it was immaterial for the purposes of the Relevant Request whether or not a complaint had been made to the Auditor. We consider that the Relevant Request, in seeking information held by the Council to support making a complaint, is essentially asking the Council what information it holds about its concerns regarding the Auditor. In any event, it is clear that the information which the Relevant Request was seeking was anything held by the Council which supported making a complaint to the Auditor, regardless of whether or not a complaint was made and regardless of the merits of any potential complaint.

38. For that reason, we find that paragraph 9 of the Decision Notice (in setting out the Commissioner’s view of the scope of his investigation) incorrectly interpreted the Relevant Request as being whether the Council holds “ any documents relating to a complaint made to its auditors ”. Likewise, the Decision Notice erroneously stated, in paragraph 12, that “ The request in this case is for information about a complaint the complainant believes the Council submitted to its auditors ”. Accordingly, we also find that the Commissioner erred in the Decision Notice generally insofar as he interpreted the Relevant Request as seeking information relating to a complaint actually made by the Council to the Auditor.

39. During the course of the Commissioner’s investigation, the Council also stated to the Commissioner (in correspondence dated 17 February 2025) that, because “ only 2024 ” was mentioned in the Relevant Request , it only addressed 2024 in its response. Likewise, in responding to the Commissioner’s question as to whether the Council had made “ any kind of complaint ” about the Auditor, the Council stated that it had “ not submitted an official complaint to the auditor for the financial year 2023/24 ” (emphasis added).

40. The Commissioner also informed the Council during his investigation that the Appellant believed that the Council had made two complaints to the Auditor, one in 2022 and one in 2023, and he asked the Council if it had provided information about these two complaints to the Appellant. The Commissioner also referred to the Council preparing a response to the Auditor regarding 2022/3 and 2023/4 audit costs and asked if it held information relevant to the Relevant Request , even if it hadn't yet submitted the complaint. In response, the Council stated that “ The financial year concerned is 2022/23… ”.

41. The Council therefore considered that there was a specific timeframe relevant to the Relevant Request . We find that this was also an incorrect characterisation of the Relevant Request . Whilst the Relevant Request referred to the Council’s 2024 meeting minutes, by way of preamble, the actual request for information was not limited by year. The first sentence of the Relevant Request was essentially giving some context as to why that request was made, but it is clear that the wording of the request itself sought any information to support making a complaint, without reference to the period in which such information might be held. Whether the Council had disclosed all of the information within the scope of the Relevant Request

42. We should note that, notwithstanding section 1(1), it is not the role of either the Commissioner or the Tribunal to determine conclusively (or, in other words, with certainty) whether or not information is actually held by a public authority for the purposes of that section. The Decision Notice referred to the Commissioner reaching his conclusion “on the balance of probabilities”. The ‘balance of probabilities’ is the correct legal test to be applied - in simple terms, this means that something is more likely than not to be the case. Accordingly, in determining whether or not information is held on the balance of probabilities, a decision is often reached based on an assessment of the adequacy of the public authority’s searches for the information (where relevant) and any other reasons explaining why the information is not held.

43. We would also comment that, as we noted in paragraph 38, the Decision Notice referred to the question of whether the Council holds “ any documents relating to a complaint made to its auditors ” (emphasis added). Section 1(1) applies to “information” which is held by a public authority and accordingly it is not accurate to refer to whether ‘documents’ are held by a public authority. The relevant question is whether ‘information’ is held by the Council within the scope of the Relevant Request.

44. During the course of the appeal proceedings, the Respondents raised certain procedural and other issues regarding the provision of the ‘evidence letter’ from, and the involvement of, the witness. Those issues were addressed by Case Management Directions and are not material for current purposes. We note in paragraph 45 some other points made by the Council regarding the ‘evidence letter’. However, the legitimacy of the Contents was not disputed by the Respondents. In any event, there was no contradictory evidence before us and accordingly we find that the Contents were legitimate and accurate.

45. The Council stated in its response to the appeal that the ‘evidence letter’ was not directed at the Request and that the information contained in it referred to the “previous year’s activities”, rather than the information sought by the Relevant Request .

46. However, as we have noted, the Relevant Request was not limited to any specific timeframe. The Council was therefore wrong to allege that the ‘evidence letter’ was not relevant based on the time period that it and the Contents related to.

47. In addition , whilst the Council maintained on numerous occasions that it had not submitted a complaint to the Auditor, it stated in correspondence to the Commissioner during his investigation that “ This was not a complaint it was an appeal against the exorbitant charges ”. In our view, that language is a clear expression of dissatisfaction, which is the very definition of a complaint. We consider that it was disingenuous of the Council to suggest otherwise. We also consider that it was remiss of the Commissioner not to recognise that; the Council had demonstrated that it had grounds for a complaint to the Auditor (in respect of its charges, if nothing else) and this was clearly pertinent to the Relevant Request. In any event, we find that a complaint (regardless of its subject matter) was raised with the Auditor by the Council, for the reasons we set out below.

48. The witness stated in the ‘evidence letter’ that the Council made a complaint to the Auditor following the issue of the ‘Public Interest Report’ in July 2022. The Contents included a letter from the Council to the Auditor dated 1 November 2022. The context of that letter (as set out in its opening paragraph) was to discuss the ‘Public Interest Report’ (referred to below as the “PIR”) and comments received at the public meeting regarding that Report, following earlier correspondence related to the validity of the objections received by the Auditor. Amongst other things, that letter stated: a. “ Each of the PKF Littlejohn recommendations were discussed at the meeting and the members of the public unanimously criticised the report and its findings, citing the triviality of the objections investigated, the time taken, and the costs involved. ” b. “ It is clear that these objections should not have been allowed to progress and that clearly a PIR should not have been issued. ” c. “ …we disagree with your data relating to this recommendation, and we would question whether there is a statutory basis for this item? if not it must therefore be outside the remit of the external auditors. ” d. “ The Freedom of Information policy adopted by Potto parish council is directly adapted from a template document provided by the Yorkshire Local Councils Association, It is reviewed annually and we would request PKF Littlejohn to explain to ourselves and the YLCA what exactly is wrong with this policy? We would question whether, is simply having a FOI response found to be insufficient an issue, something which should be addressed by the external auditors? Is it in fact outside of your remit? ” e. “ It is clear that the style in which the minutes of a rural parish council are made is not a matter of concern warranting reporting in a PIR. Being a small parish council, the business conducted is seldom complex and does not require an elevated rigorous methodology for the presentation of the minutes. We would question the statutory basis of this apparent breach? ” f. “ It remains abundantly clear that many of the objections did not meet the criteria for investigation and that a Public Interest report should never have been considered as the requirements in legislation and the guidelines provided to PKF Littlejohn have not been met. ”

49. The letter of 1 November 2022 also stated (on two occasions): “ We think that this point needs to be reviewed by PKF Littlejohn and removed from the PIR due to its inaccuracies. ”.

50. Other aspects of that letter were also critical of work done by the Auditor. The letter also referred to “ the injustice surrounding this matter ”. We consider that it is obvious from the contents and tone of the letter that the Council was dissatisfied with work undertaken by the Auditor (in addition to its dissatisfaction with the costs incurred). At the conclusion of the letter, it stated: “ As you will have noted we have a series of weak recommendation which do not in any way justify the publication of a Public Interest Report. Many of the recommendations are not based on the facts and have been diluted and divided in order to beef up the report. It is abundantly clear that this situation should never have been allowed to reach the stage of a PIR and PKF Littlejohn are complicit in this by allowing five years’ worth of AGARs to accumulate before taking action. Clearly these objections should never have been allowed from a known vexatious individual and a PIR should never have been published. It is fully understandable why the residents of Potto were so critical of PKF Littlejohn, the PIR and the associated costs. ”.

51. The letter then listed some third parties who had been sent a copy of the ‘Public Interest Report’. The letter then stated: “ Can you please provide us with the full contact details for each of these parties who have received a copy of your letter and any other party that you have shared this letter with, to enable us to send them copies of our complaint. ”.

52. It is evident from all of the above aspects of the letter that the Council had concerns about the Auditor’s work. It is also evident from the wording we quoted in paragraph 51 that either: (i) the Council had already made a separate complaint to the Auditor (and the Council wanted to send a copy of that complaint to the specified third parties); or (ii) the Council considered that the letter itself constituted a complaint to the Auditor (and the Council wanted to send a copy of the letter to the specified third parties); or (iii) the Council was intending to send a complaint to the Auditor regarding the matters referred to in the letter. Whichever of those applied, this is clearly pertinent to the Relevant Request.

53. The witness stated in the ‘evidence letter’ that they became aware in late 2022 that the Council had made a complaint to the Auditor in connection with the ‘Public Interest Report’. They stated that they raised the matter of that complaint with the Auditor and received an email on 19 January 2023 from the Auditor which stated that a named individual at the Auditor “ is dealing with the complaint ”. A screenshot of that email was included in the Contents, as well as a screenshot of a subsequent email from that named individual dated 26 January 2023 which confirmed that the Auditor was “ responding to the complainant ”.

54. The witness also stated in the ‘evidence letter’ that it appeared that the Council may have taken steps to initiate a further complaint around a year later, in January 2024. Included in the Contents was a screenshot of an email dated 9 January 2024 to the witness from the Auditor which stated: “ The Council… has requested details of how to escalate a formal complaint about my handling of the objections… ”.

55. The Contents also included a screenshot of an email sent from the Auditor to the Appellant and the Council dated 24 January 2024, which referred to the Auditor sending a “ letter to the Council regarding its complaint ”, as well as excepts from a letter from the Council to the Auditors dated 24 February 2024. Those excepts included a statement from the Council that the Auditor had “ …failed in their duty when accepting these objections from the objector… ”. Other excerpts of the Council’s letter dated 24 February 2024 were also critical of the Auditor. The Contents also included screenshots of subsequent correspondence referencing a complaint made to the Auditor by the Council.

56. We find that the above correspondence therefore also demonstrates that the Council had concerns about the Auditor’s work, and that the Council had actually made a complaint to the Auditor. Again, this is clearly pertinent to the Relevant Request. Clearly, this is also inconsistent with the Council’s statement to the Commissioner (as recorded in paragraph 15 of the Decision Notice, set out above in paragraph 12) that “ The Council… has not raised a complaint against its auditors and has no reason to do so .”.

57. As noted in paragraph 12, the Commissioner also recorded in paragraph 15 of the Decision Notice that the Council had raised its concerns about the objections to its Annual Governance and Accountability Return (AGAR) because it faced additional charges for the investigation of the objections. In our view, that statement of the Council’s position is misleading. The Council may have complained about the Auditor’s charges (and its concerns about the Auditor’s charges were reflected in its letter to the Auditor dated 1 November 2022), but it is clear from the above that the Council also had complaints about aspects of the Auditor’s work. In any event, as we have noted above, even a complaint regarding the Auditor’s charges alone would be pertinent to the Relevant Request.

58. For all of the above reasons, we find that the Council not only had concerns about the Auditor’s work and its charges but also had complained to the Auditor. We therefore find that the Commissioner was wrong to conclude, by way of the Decision Notice, that the Council did not (on the balance of probabilities) hold any further information within the scope of the Request. Other matters – section 10(1)

59. As we have noted: a. pursuant to section 10(1), a public authority must respond to a request for information no later than 20 working days following the date of receipt of the request; b. the Request was dated 11 April 2024; and c. the Council only responded to the Request on 2 June 2024.

60. Given the Council’s delay in responding to the Request, we agree with the conclusion of the Commissioner in the Decision Notice that the Council breached section 10(1). Final conclusions

61. For all of the reasons we have given, we find that the Decision Notice involved an error of law in concluding that the Council did not (on the balance of probabilities) hold any further information within the scope of the Relevant Request .

62. We therefore allow the appeal and we make the Substituted Decision Notice as set out above. Signed: Stephen Roper Date: 15 December 2025 Judge of the First-tier Tribunal