David Thurgood v The Information Commissioner & Anor

1. This is an appeal against the Decision Notice of the Information Commissioner (“the Commissioner”), referenced IC-298424-Z2N7 of 1 August 2024.

2. The Appellant requested information from Hertfordshire County Council (“the Council”) about road repairs, specifically relating to a pothole on Pixmore Way, Letchworth. The Council provided the Appellant with certain information. The Appellant did not accept that the Council did not hold further information responsive to his request. The Commissioner decided that the Council did not hold any further information.

3. The requested information is environmental information within the meaning of the Environmental Information Regulations 2004 (“EIR”). Reference to a regulation or “Regulation” in this decision is to a regulation of EIR. The Request

4. On 15 September 2023, the Appellant wrote to the Council, requesting the following information (“the Request”): “Q1. How many complaints were made about pothole in Pixmore Way, Letchworth, Herts outside house nos 105 and 107. Could I have the dates of all the complaints made in 2022/23. Q2. How many claims were made about damages to cars from same pothole in 2022/23. Could I have the dates of all claims. Q3. When was the pothole repaired. I believe it was repaired twice. Could I have both dates. Q4. Could I have copies of reports of the road conditions from Oct 2022 until pothole in Pixmore Way was repaired. ”

5. On 11 October 2023, the Council responded. It set out the Request in its discrete sections, although it split Question 1 into two questions, supplying its answer under each as follows: “Q1. How many complaints were made about pothole in Pixmore Way, Letchworth, Herts outside house nos 105 and 107. I can confirm that we not had any official stage 1 or Stage 2 complaints for a pothole in Pixmore Way in Letchworth in 2022/23. Q2. Could I have the dates of all the complaints made in 2022/23. Please see document ‘Enquiries’ showing public Enquiries logged with general area that has been described relating to the request. The information has come from Highways Confirm management system should be read in conjunction with the Highways Defence Management Approach describing categorisation of potholes and other highways defects Highways plans and strategies/Hertfordshire County Council . Q3. How many claims were made about damages to cars from same pothole in 2022/23. Could I have the dates of all claims. We have only received 1 claim in 2023 within this road ID and the claim has a loss date of 15/02/2023. As the road ID for this section of road is still a long section of road, the claim may not be directly related to the pothole outside houses 105 and 107. Q4. When was the pothole repaired. I believe it was repaired twice. Could I have both dates. No Pothole within Highways Defect Management Approach identified at this location for repair in response to public report. Carriageway patching for pothole repairs picked up outside property 109 Job 2121263 work carried out 06/06/2023. Additional non-hazardous pothole repairs undertaken along length of road on 09/08/2023. Q5. Could I have copies of reports of the road conditions from Oct 2022 until pothole in Pixmore Way was repaired. Please see attached document ‘RING-23-0732 – FOI – Safety Inspections’ with defects within the Highways Defect Management Approach and Inspector notes as general road conditions. Should be read in conjunction with highways Defect Management Approach Highways plans and strategies/Hertfordshire County Council. “

6. The Council went on to refuse any request for personal data within the Request by reference to Regulation 13(1). The Council said that disclosure of personal data in this case would contravene data protection principle of Article 5(12) GDPR, namely that such data should be processed fairly.

7. In this context, the Council said this: “ In relation to your request, individuals, including parents and other interested parties, who raise about faults with roads, often share with us personal information about themselves and their circumstances. These individuals would have no expectation we would provide the public with copies of such personal information or even make public that they had had [sic] reported an issue with us.” The Council concluded that the public interest was better served by withholding personal data.

8. We do not understand the reference to “parents” in the Council’s response and consider that this must be an error. As it is, we do not understand the Request to have been a request for, or which would necessarily have entailed the disclosure of, personal data but, in any event, this does not appear to be in issue in this appeal, and we do not address this aspect further.

9. The attachments to the Council’s response included: a. A list of 33 pothole reports made by the public drawn from the Council’s system, each under an enquiry number showing the dates of the information logged on the Council’s system from 1 April 2022 to 11 May 2023, and each logged subject to one of several categories applied by the Council: Duplicate Report (public), Repaired/Replaced, Enquiry Raised, Int’vent lcl CAT1 not met, and Noted for Future Ref; and each bearing a short description of the issue, such description apparently provided by the person reporting the pothole in question to the Council, together with a description of the location of the pothole. Some of these descriptions referred expressly to Pixmore Way and some did not, but we understand that all the logged entries relate to Pixmore Way. b. A Feature History Report showing a series of Council inspections of defects in Pixmore Way between 1 October 2022 and 1 October 2023, consisting of observation type, a code, a grade, a score, a log date, location of the defect, and a status. All the defects in this report are scored “.0000” and their status marked “Unactioned”. c. A link to Highways Plans and strategies/Hertfordshire County Council”.

10. On 27 October 2023, the Appellant sought an internal review of the Council’s response. He complained that: the Council’s response indicated that no complaints were made about a pothole outside Nos 105 and 107, Pixmore Way, when the attachments to the Council’s response indicated over 50 complaints about potholes in Pixmore Way; he had not received the dates of each complaint nor the dates when the pothole outside Nos 105 and 107, Pixmore Way was repaired on two occasions.

11. On 27 November 2023, the Council confirmed the outcome of its internal review. In summary, it said this: a. There is a difference between formal complaints raised with the Council, known as Stage 1 complaints or Stage 2 Complaints, and the 33 notifications, known as fault reports, which were listed by the Council in the document called “Enquiries” attached to its initial response to the Request. While there are multiple fault reports concerning potholes on Pixmore Way, there have not been any Stage 1 or Stage 2 complaints formally raised with the Council within the timeframe requested. b. There were no dates to provide in relation to Stage 1 or Stage 2 complaints in relation to Pixmore Way, as no such complaints exist. c. The only logged dates of actual repair work being carried out within the vicinity of Nos 105 and 107, Pixmore Way were included in the Council’s initial response to the Request, namely the repair work outside No 109 Pixmore Way. d. A further enquiry had revealed an error in the Council’s original response: whereas the Council had said that there had only been a single claim in 2023, only “the insurance claims” for 2023 had been provided, and there were, in fact, three claims for 2022/23: 18 March 2022, 16 December 2022 and 15 February 2023. e. The Council was satisfied that it had provided the Appellant with the information he had requested but acknowledged that the information should have been more clearly explained to the Appellant. The Council also said that it would arrange to provide hard copies to the Appellant of the information it had supplied in its response under electronic links.

12. On 18 December 2023, the Appellant complained to the Commissioner. He told the Commissioner that: (on a date he did not identify) he had driven into a massive pothole on Pixmore Way; in May 2023 he had identified damage to his car, costing £690.90 to repair; the Council had rejected his claim to recover that sum on the basis that there was no pothole in Pixmore Way; he had spoken to the Councillor within whose remit Pixmore Way lies, who had confirmed to him that there was a massive pothole in Pixmore Way about which he had received many complaints and had sent emails to the Council to repair it; the Councillor confirmed the pothole had been repaired twice. The Appellant asked the Commissioner to recover the money for the damage to the Appellant’s car. The Decision Notice

13. By the Decision Notice, the Commissioner found that the Request fell to be considered pursuant to the Environmental Information Regulations 2004 (“EIR”), as it relates to the condition of highways, an element of the environment: Regulation 2(1)(a) EIR: “ t he state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements ;”

14. The Commissioner found that there was no evidence available to him that the Council’s response or the searches it had undertaken, were deficient; there may be other information relating to the matter, such as general correspondence between the Councillor and the Council, but that was not information which had been requested. The Commissioner accepted the Council’s position that it had disclosed all held information. The Appeal

15. By Notice of Appeal dated 7 June 2024, the Appellant submitted the following grounds of appeal: a. The Appellant had been informed by a Councillor of a massive pothole in Pixmore Way; the Councillor had proof of emails of complaints which the Councillor had sent to the Council; the Councillor had arranged for the Council to repair the pothole again; b. The Council had sent the Appellant information about around 60 complaints about the pothole so how could the Council say there was no pothole there?

16. By way of outcome of his appeal, the Appellant required the Council to admit that the pothole was there and was filled in twice, and to reimburse him for the cost of repairs to his car, plus a “little more” to compensate him for the way he has been treated by the Council.

17. By his Response to the appeal dated 18 December 2024, the Commissioner responded that the Appellant’s grounds of appeal did not disturb his decision and contained no valid reasons for overturning the Decision Notice. He offered no further submissions. The Legal Framework

18. It is not in dispute between the parties, and we agree, that the requested information is environmental information, and thus falls to be addressed under EIR.

19. EIR provides relevantly as follows: Duty to make available environmental information on request

5. — (1) Subject to paragraph (3) and in accordance with paragraphs (2), (4), (5) and (6) and the remaining provisions of this Part and Part 3 of these Regulations, a public authority that holds environmental information shall make it available on request. (2) Information shall be made available under paragraph (1) as soon as possible and no later than 20 working days after the date of receipt of the request. ... Analysis

20. We considered the matter on the papers on 23 April 2025. The extent of the Commissioner’s investigation was not clear to us from the papers before us. Accordingly, on 1 May 2025, the Tribunal directed the Commissioner to file: copies of all correspondence between the Commissioner and the Council in the Commissioner’s investigation, or, if no such correspondence existed, a witness statement explaining what investigation had been undertaken by the Commissioner.

21. By witness statement dated 7 May 2025, the Senior Case Officer in the Information Commissioner’s Office dealing with the matter, confirmed that there was no correspondence between the Commissioner and the Council save for a case acceptance email and the Decision Notice. The Commissioner had reached his decision on the basis of the documents provided by the Appellant in support of his complaint.

22. There can seldom be certainty that information responsive to an EIR request is or is not held by a public authority. The test, however, is whether such information is held on the balance of probabilities. This requires the Tribunal to consider a number of factors including the public authority’s initial analysis of the Request, the scope of the search it decides to make on the basis of that analysis, and the rigour and efficiency with which the search is conducted.

23. There was no evidence before the Tribunal of the searches undertaken by the Council for information responsive to the Request. Although when making the Request, the Appellant did not identify to the Council the discussions he had had with the Councillor in question, he did identify them in his complaint to the Commissioner. However, the Commissioner reached his decision only on the basis of the documents provided by the Appellant. He made no enquiry of the Council about the Appellant’s submission to him that a Councillor had communicated, apparently more than once, with the Council in relation to the pothole.

24. On 24 June 2025, the Tribunal directed that the Council be joined as Respondent to the appeal and should file a Response to the appeal together with a witness statement: a. exhibiting copies of any recorded information held by, or on behalf of, the Council as at the date of the Request provided by any Councillor to, or derived from communications by any Councillor with, the Council concerning (1) a pothole outside Nos 105 and 107 Pixmore Way, Letchworth, Hertfordshire, (2) any complaints made to the Council about that pothole from 1 January 2022 to 15 September 2023, and (3) any repairs to the pothole in that period, and the dates of such repairs. b. Seeking clarification as to whether the contents of a report of defects in Pixmore Way provided by the Council to the Appellant which appeared in the hearing bundle derived from a report made, or public complaint passed on by, any Councillor to the Council.

25. In response to the Tribunal’s directions, the Council has provided a substantial amount of carefully presented evidence, which has greatly assisted the Tribunal. We cannot identify in the material before us that the Council has filed a formal Response to the appeal, but having viewed the evidence provided by the Council, we do not consider that the absence of a formal Response means we are unable to determine the appeal: it is readily obvious from the evidence filed by the Council, indicating meticulous analysis of the Request, that the Council’s position is that it does not hold further information responsive to the Request.

26. In short order: the Council’s Information Access Manager, the Council’s Policy and Security Compliance Team Leader, and the Council’s Group Manager Customer Journey have each provided witness statements, which describe in detail the steps they have undertaken to respond to the Tribunal’s directions and identify whether the Council holds responsive information.

27. The Council’s Information Access Manager has explained that: the Councillor identified by the Appellant is no longer a Councillor; he has regained access to and reviewed that Councillor’s emails; he has provided copies of that Councillor’s emails to the Council about potholes on Pixmore Way; he has identified that any report made by a Councillor of contact from the public about a pothole is not treated as a Stage 1 or 2 complaint, which means that had any such contact related to the pothole in question, it would not have been treated by the Council as a “complaint”, that being the word used by the Appellant in the Request.

28. Additionally, the Council’s Information Access Manager has detailed the pothole repairs carried out on the length of Pixmore Way between 1 January 2022 to 15 September 2023, and has not identified that any of them was undertaken exactly outside Nos 105 and 107. Additionally, he has identified that none of the defects listed in a Council report in the hearing bundle derived from a report made, or public complaint passed on by, any Councillor to the Council about the pothole which interests the Appellant.

29. We are satisfied that the scope of the Council’s searches has been sufficient: the Council appears to have searched its systems by reference to Pixmore Way as a whole, rather than by reference to a much narrower data point, that is to say, a specific house number, and it has disclosed the data from its systems in the original form in which that data is held, including the full description of the fault report lodged by each complainant, with the date of each report. It has also disclosed its full Feature History Report of inspections at Pixmore Way for the requested timeframe, redacting only the name of the Inspecting Officer.

30. We note the Council’s explanation that the information provided by its response relates to “fault reports”, not formal complaints, and while there have been multiple fault reports, as demonstrated to the Appellant, there have been no formal Stage 1 or Stage 2 complaints. The Council, having explained the difference between a fault report and a complaint, has confirmed that there have been no such complaints. We have seen no evidence to suggest that that is not an accurate explanation of the position.

31. We also observe the Council’s explanation in its internal review response that inspection of a reported defect may not lead to repair, subject to the criteria applied by the inspecting team. In that context, the only logged date of repair work being carried out in the vicinity of Nos 105 and 107 Pixmore Way which was considered potentially relevant was that relating to a repair outside No 109 Pixmore Way. In short, it seems that that was the closest the Council could get to identifying information potentially responsive to the Request.

32. We do consider that the information provided under cover of the Council’s initial response to the Request could have been more clearly presented and explained. By its internal review, however, the Council appears to have recognised that and has provided further and clear explanation of its position.

33. We note that we have not been provided in the hearing bundle with the link to the Council’s “Highways plans and strategies” which was contained in the Council’s initial response to the Request, which the Council said should be read in conjunction with the other information it provided in response to the Request. However, we consider that we can properly determine this appeal on the basis of the evidence before us, that is to say, without the link. The Appellant has not indicated that there is anything in the link which is relevant to the issues required to be addressed in the appeal.

34. Overall, we are satisfied, based on the Council’s explanations and evidence, that the Council does not hold information responsive to the Request. We have not identified anything which suggests that the Council may have been reluctant to conduct a proper search or may have a motive to withhold responsive information, indeed, quite the opposite: the Council has undertaken extensive searches and provided a fulsome account.

35. It may be that certain of the Council’s recorded information disclosed to the Appellant or disclosed in this appeal does relate to a pothole outside Nos 105 and 107, Pixmore Way and to repairs to that pothole within the requested timeframe, but that the way that information has been recorded, either by a complainant, or by the Council, is not sufficiently accurate or detailed to record that precise location. However, a request for information under EIR is a request for information held, and EIR neither operates to require correction to, or improvement of, information held by a public authority, nor to regulate whether a public authority should hold any particular information in any particular form. Conclusion

36. We find that the Council does not hold further information responsive to the Request. To that extent the Decision Notice is in accordance with the law.

37. Even were we to have found that the Decision Notice is not in accordance with the law, it is not open to the Commissioner or the Tribunal to direct any financial compensation to any party. The Commissioner’s and the Tribunal’s jurisdictions are restricted to establishing compliance with EIR.

38. The Appeal must be dismissed.