Wise v Information Commissioner & Anor

B e f o r e :

JUDGE HEALD MEMBER WOLF MEMBER DR MANN ____________________

____________________

Representation: For the Appellant: the Appellant appeared in person The First Respondent did not attend For the Second Respondent: Matthew Lewin of Counsel ____________________

HTML VERSION OF DECISION ____________________

Crown Copyright ©

Decision: The appeal is allowed

Substituted Decision Notice:

This decision relates to an appeal brought by the Appellant pursuant to section 57 Freedom of Information Act 2000. It is in respect of a decision notice issued by the Information Commissioner on 21 November 2022 with reference IC-15573-S7Z9. It concerns a request for information made to the 2nd Respondent on 12 January 2022 about the requirement for the return of expiring/expired driving licence documents to the 2nd Respondent.

What follows is a summary of the submissions, evidence and our view of the law. It does not seek to provide every step of our reasoning. The absence of a reference to any specific submission or evidence does not mean it has not been considered. In this decision any page numbers indicated by their inclusion in brackets refer to pages of the bundle, if the letters CB are added it is to the closed bundle and the following definitions are used:-

DVLA is an executive agency of the Department for Transport. As part of its functions it is responsible for issuing driving licences. For various reasons a licence may, for example, expire, be suspended or be revoked. The Road Traffic Act 1988 contains statutory provisions requiring such licences to be returned to DVLA. This has been called "the surrender requirement." We were told that as of December 2025 this requirement remained in place and as far as Mr Chatham was aware Minsters had not given approval for an amendment to the Road Traffic Act to enable any change to the surrender requirement.

The Appellant was required to renew his driving licence. Part of the process involved destroying his old licence and sending it back in that state to DVLA. On 12 November 2021 he wrote to DVLA and suggested that they could consider developing a process more akin to that used by UK financial institutions whereby cards are destroyed by customers but not sent back. He asked (82/SB2):-

DVLA replied on 22 November 2021. It said (25) "...I can confirm that we are reviewing our current procedures around all documents being returned to us, however it is required for now..."

It was this reply that led to the Request on 12 January 2022 which asked:-

On 12 January 2022 (SB4) the Appellant was asked for more clarity as follows:

On 12 January 2022 the Appellant wrote (SB5):-

This decision contains conclusions which are at times somewhat critical of DVLA's approach to dealing with the Request. It is fair therefore to record DVLA's written apology by counsel as follows:-

The hearing was attended by the Appellant and counsel for DVLA. We had a (revised) open bundle of 155 pdf pages. In addition other items provided included the decision of the UT in this matter, a supplemental open bundle ("SB") of 5 pages and skeleton arguments for the Appellant and DVLA.

The Tribunal also had a revised closed bundle ("CB") of 21 pages held pursuant to rule 14 2009 Rules. This included a copy of the Pro-Forma, the Draft Submission, an unredacted version of Mr Chatham's statement and a closed submission. DVLA provided a gist of the index of the closed bundle.

When considering the closed material the Tribunal kept in mind that it has a continuing duty to ensure fairness with regard to it and continued to act in accordance with the decision of the Court of Appeal in B rowning -v- Information Commissioner [2014] EWCA civ 1050.

We held a closed hearing with Mr Chatham and counsel for DVLA during which we received a supplemental closed bundle of 13 pages. A gist was also prepared by counsel for DVLA. Following the closed hearing the Appellant was provided with a redacted copy of the Draft Submission showing only its date at the top of "xx September 2022" .

Mr Chatham provided a statement dated 9 January 2025 (149-155) and appeared as a witness for DVLA. He was cross-examined by the Appellant and was asked questions by the Tribunal in the open and closed parts of the hearing.

Since about June 2023 he has been responsible for the management of the Freedom of Information Team within DVLA. He said that the FOIA team had about 5 members of staff and dealt with over 1000 FOIA requests a year. He said that his role includes "ensuring that requests under the Freedom of Information Act 2000 ("FOIA") are dealt with in compliance with the provisions of that legislation." Mr Chatham said that a policy review can take many forms and can come from different people such as a Minister or DVLA's chief executive. Mr Chatham explained how he thinks the idea for a review of the surrender requirement arose and how it had proceeded. He thinks that "10 Downing Street" asked for proposals for dealing with the surrender requirement as part of the UK government's Covid recovery plan. In about June 2020 a review was initiated with the Pro-Forma. Progress was slow because advice was received that any change to the process might involve amendment to primary legislation.

Cross-examination of Mr Chatham focused for example on how Mr Chatham knew the facts given in his statement, where his knowledge had come from and how it came about that two employees at DVLA said information was held if in reality no such document existed.

It was helpful to have his evidence but, as he explained he was not able to assist to any great extent with information about DVLA's policy team processes, he was not involved in the initial response to the Request or after review and some parts of his evidence had to be based on assumptions. He was also at times having to explain how and why the processes had gone wrong. This led to information being sought about those who had been involved, if they had been spoken to about this appeal and their current employment status in DVLA. On this matter it appeared he knew more than he was prepared to say but we understood his reluctance.

The Tribunal's role in an appeal by section 57 FOIA is set out in section 58 FOIA which provides that:-

The IC and DVLA also referred to a number of FtT decisions on the role of the Tribunal such as Stuart-v-the IC and DWP EA/2008/0040 and Matalia -v- the IC EA/2021/0302 and Cannis -v- the IC EA/2009/102 &119 with which we agree and in which the FtT in summary says that in carrying out its full merits review the FtT is not undertake a review of the basis on which the IC made a decision or the way the decision was reached. We also had regard to authorities such as NHS England -v- Information Commissioner and Dean [2019] UKUT 145 (ACC) and Information Commissioner v Malnick and Advisory Committee On Business Appointments [2018] UKUT 72 (AAC) .

This appeal is a "full rehearing on the merits" and in In Peter Wilson -v- The Information Commissioner [2022] UKFTT 149 the FtT said (with which we agree):-

We also noted Forstater v Information Commissioner and others [2023] UKUT 303 (AAC) where the UT at para 40 said:-

DVLA responded to the Request, as clarified, on 24 January 2022 (83) and in summary said that it held information within the scope of the Request but it was being withheld in reliance on the exemption in section 35(1)(a)FOIA. The Appellant, on 25 January 2022, sought an internal review of DVLA's response and also indicated he considered DVLA had failed to comply with section 16 FOIA. DVLA responded again on 11 February 2022 (88) and maintained its position on section 35.

On 12 February 2022 the Appellant complained to the IC. During the IC's investigation on 4 November 2022 DVLA now said (141):-

In the DN the IC said in summary (5):-

On 6 December 2022 the Appellant commenced this appeal. The Appellant said that the outcome sought (20) is for the Tribunal to decide that:-

The IC responded to the appeal on 13 January 2023 and the Appellant replied to the IC on 18 January 2023 (34). An application was made by the IC for the appeal to be struck out by rule 8(2)(a) 2009 Rules and/or rule 8(3)(c) 2009 Rules. That application was refused on 21 February 2023. DVLA became a party on 17 April 2023 then responded to the appeal on 21 June 2023 to which the Appellant replied on 30 June 2023. From the UT Decision of 15 March 2024 it can be seen that:-

FOIA provides that any person making a request for information to a public authority is entitled to be informed in writing if that information is held (section 1(1) (a) FOIA) and if that is the case to be provided with that information (section 1 (1) (b) FOIA). These entitlements are subject to a number of exemptions which can be absolute or subject to the PIBT.

By section 1(4) FOIA "information" in section 1(1) is "the information in question held at the time when the request is received,..." in this case in January 2022.

We considered various legal authorities on the question of "not held" such as Preston -v- the Information Commissioner and The Chief Constable of Yorkshire Police [2022] UKUT 344 ACC, Bromley and others -v-Information Commissioner and the Environment Agency EA/2006/0072 and Jeremy Clyne v IC and London Borough of Lambeth EA/2011/0190. From these it can be seen that (a) there will not usually be absolute certainty about whether in-scope information is held or not and in considering this question the IC and Tribunal should use the balance of probabilities test and (b) it may be that the information should exist but a failure to retain information does not mean it it is held and is not a breach of FOIA.

In the FtT decision in Oates v Information Commissioner and Architects Registration Board EA/2011/0138 (with which we agree) it was said that the IC was entitled to accept the word of a public authority and not investigate further:-

We noted and agreed with the decision in Bromley that:-

Section 35(1)(a) FOIA is a class-based exemption subject to the PIBT. It provides that "Information held by a government department... is exempt information if it relates to...(a)the formulation or development of government policy."

The outcome sought, as expressed by the Appellant in the appeal, is the Tribunal's determination that (a) the IC was correct about DVLA failing to comply with section 1 FOIA and (b) the IC's investigation was insufficient and so the IC should carry out a new investigation.

A narrow reading of these points could result in the appeal being dismissed because agreeing with the DN, making a finding about the quality of the IC's investigation and ordering the IC to investigate again are not themselves remedies available to the Appellant by FOIA. The Appellant is alert to this possibility. He says (15) "... However, I do not know whether the Tribunal has the power to do this."

From the substance of what the Appellant says seen, for example, in the complaint (92) and the Appellant's skeleton, in our view what he seeks to appeal is the outcome of the DN in a broad sense because he believes information is held and the approach to looking for information was flawed. To enable the Tribunal to decide if the DN was in accordance with the law the questions we have therefore considered are:-

The Appellant in his skeleton (para 22) confirmed that section 16 FOIA was not an issue and we also did not consider whether the IC was right to conclude that DVLA had failed to comply with section 1 FOIA because the Appellant agreed that part of the DN.

The parties have made submissions on the meaning of ToR. To summarise:-

In our view ToR can mean different things to different people and in different contexts and all versions of the meaning presented to us and more could be right at times. We have been told of the 2005 Act meaning relevant to inquiries and we know the Appellant's meaning based on his experience. However some organisations might use different words prescribed by rules or tradition to say the same thing and such words might in some circumstances be in a contract or might be term of art in a particular field. We expect, if asked, a search-engine would suggest very many different definitions and all could be valid.

Also seeking to define, and thus limit, the meaning in these words risks taking an overly legalistic approach to a request. If in doubt DVLA could have sought clarity about the words used. However when asking for clarity on 12 January 2022 DVLA said "... Can you state what your case is in regards to and which copy of the terms of reference for that review is in regards to?" This may have given the impression that there was no doubt about what a ToR was and the need for clarity was about to "which copy.." the Request related. It is also possible that no doubts were raised about the meaning of the words because people tend to "know" what they think they mean in their particular context. It is probable that the risk of there being different possible interpretations was not identified and considered at the point the Request was made and the response was being prepared. This may also have been because at that stage DVLA reported that it held material in-scope.

Whatever ToR means in this context it is important for there to be clarity about the time-frame in which any information would be in-scope of the Request. On an analysis of the correspondence between the Appellant and DVLA from 12 November 2021 to the Request on 12 January 2022 the Appellant was seeking the (pre-specified) terms of reference for the review which was referred to, in DVLA's response, as being already underway ( "we are reviewing") . Therefore only material that pre-dated the 12 November 2021 can be in-scope. Also by section 1(4) FOIA "information" is (emphasis added):-

Therefore, even if DVLA drafted ToR for a review after it had started that review and if the clarifying words "pre-specified " are ignored, the in-scope cut off date for any information is whether it was held when the Request was received on 12 January 2022.

Our conclusion is that it is not in-scope because it was not held at the date the Request was received.

Its date was a matter of dispute and confusion which was understandably raised by the Appellant as being undermining of DVLA's "not held" position generally. These issues can be seen from the chronology below (emphases added):-

Mr Chatham sought to explain how the above had occurred. In his statement he said that when DVLA said that it had in-scope information in its original response that was an error caused, in his words, by a failure of the process between the FOIA team and the DVLA policy team and this error was regrettably not picked up on review because, he assumes, that the correct due diligence was not done at that time. Both, he said, were the wrong decision.

Mr Chatham first became involved after the complaint had been made to the IC. He said the reasons the IC was provided with the Draft Submission was because he (despite the date on it):-

He also said that he was "9...unaware of this history at the time the DVLA filed its response to the Appellant's appeal to the First Tier Tribunal"

At the hearing he also said:-

Mr Chatham expressed his view that the Draft Submission was not in any event a ToR because it was a "draft ministerial submission" which he considered to be nothing more than a scoping exercise to present to a Minister.

We concluded that the information held in the CB actually dated "xx September 2022" on the top of its first page and with metadata showing activity on 28 September 2022 does itself post-date the Request and is not in-scope of the Request. However, as set out below it does not automatically follow from this that there was not an earlier version of this document. We have not had to consider whether section 35 FOIA is engaged in respect of this document.

We again considered whether this item which we saw at CB13 – CB15 was in-scope as regards its date and if so its content. Mr Chatham at the appeal said that this document initiated the review probably from information gathered and is best described as an impact assessment document and an "overview" .

The Appellant has not seen it. He did however point out that (52):-

DVLA in its response to the appeal says (41) "15. During the course of preparing its response to this appeal, the DVLA identified a further document produced in June 2020, "Regulatory proposal pro-forma" DVLA went on to say that this "15...set out for senior DVLA officials the background, impacts and work needed to remove the Surrender Requirement."

Mr Chatham in his statement (152) says DVLA considered the Pro-Forma at the time of the internal review but:-

Mr Chatham at the hearing said that in his view it was not a ToR based on the Appellant's definition.

Leaving to one side whether that suggests an inconsistency about when it was identified it is accepted that it was produced in June 2020 and therefore existed at the date the Request was received.

The IC was shown the Pro-Form who, by reference to their understanding of the meaning of ToR, said that their view was that it was not a ToR but the Tribunal will wish to consider it and reach its own conclusion which may differ (CB16).

As it is possible for ToR to mean different things by different people and in different contexts it was reasonable for DVLA to reach their conclusion based on their use of these words. However we have read it with a broader definition in mind from which we concluded from it's content that it does have hallmarks of a ToR. In our view it does more than this but a document which sets out the background to a proposal and describes the work to be done its impact and anticipated benefits might reasonably be called by some (even if not DVLA) a ToR.

Therefore in our view it is a ToR for these purposes. It is therefore in-scope and should be disclosed in response to the Request. DVLA has not specifically made submissions on whether the Pro-Forma is, in their view, subject to an exemption and we do not know if they would wish to do so. An opportunity is therefore provided to do so in the substituted DN.

Despite DVLA's position being that they do not hold any in-scope material we were not, on the balance of probabilities, satisfied on this question because of the aggregation of the reasons that follow.

Although ultimately satisfied that DVLA did not hold any in-scope information it is of note that in the DN the IC said (8) that it could not reasonably conclude that DVLA had conducted proper searches and therefore DVLA had failed to comply with section 1 FOIA.

DVLA twice responded to the Request saying it held in-scope information and we were not able to hear from those who gave those responses with their explanation. DVLA were inaccurate when dealing with it and went through several changes of its position regarding it. Mr Chatham accepted his statement contained a typographical error about the metadata and that somehow the fact that the document had an actual date on it was overlooked.

Of note is that, knowing that the IC at para 23 of the DN had pointed out the Draft Submission was dated long after the Request was received, DVLA in its response said:-

Mr Chatham says that this error arose because he "was unaware of this history at the time the DVLA filed its response to the Appellant's appeal to the First Tier Tribunal". We could not see how, not knowing about the history, would itself enable DVLA to plead a positive case that there was an earlier version produced in January 2022. Additionally Mr Chatham accepted that the version in the CB would not have emerged from nothing and that something must have come before.

From what we were told by Mr Chatham in the closed hearing it is quite possible that there were earlier versions of the draft submission and it is quite possible that an earlier version existed in January 2022 as stated in DVLA's response. It maybe that any such earlier version(s) were deleted when new versions were created.

We were not satisfied that an appropriate search had been carried out to see if a version of the Draft Submission existed when the Request was received and we do not discount the possibility that it was.

Mr Chatham was helpful in explaining how the responses to the Request came about. He said in his statement:-

He said at the hearing that the Request went to the DVLA's driving licence policy team because, based on the interpretation of the Request, that team was the most likely to hold any in-scope information. He said that what should have happened is that when the response was receive from the policy team the FOIA team should have gone back to check what was actually held and obtain copies of anything and the policy team should have provided anything for the FOIA to check it.

The required process was not followed and the evidence given gave the impression that the FOIA team at DVLA simply forwarded on the Request to the policy team without guidance about what they should look for, how they should look for it, the depth of that exercise, the timescale and how to ensure this methodology was recorded. No reference was made for example to the Guidance. We also gained the impression that when the policy team responded it told the FOIA team what was to be done and also told them that the exemption at section 35 was to be applied. We accept that organizations may structure themselves in such a way and make such a process work well. However not in this case because for example only:-

In summary:-

For the reasons set out above the DN was not in accordance with the law and the appeal is allowed.

Signed Judge Heald

Date: 2 March 2026