The First-tier Tribunal (General Regulatory Chamber) has partially upheld an appeal brought by a resident against Potto Parish Council and the Information Commissioner, after finding that the council did hold information falling within one part of a Freedom of Information Act (FOIA) request, despite originally claiming otherwise.
In a decision issued on 17 March 2026, the Tribunal concluded that the appeal succeeded in part, issuing a substituted decision notice and setting out pointed criticism of the council's unexplained shift in position regarding information it belatedly acknowledged holding.
The appellant, Mandy J Thompson, submitted a five‑part FOIA request to Potto Parish Council on 18 September 2024. Only parts 1–3 were pursued on appeal.
These parts sought:
- Correspondence between the council and Smaller Authorities Audit Appointments (SAAA) regarding financial assistance with an audit invoice of £12,797.70;
- A separate cover sheet detailing additional audit fees referenced in an invoice; and
- Specification of alleged “errors” in the external auditor's final report, as mentioned in the council’s August 2024 minutes.
The Council initially responded that it held none of the requested information. Following a complaint to the ICO, the Commissioner issued a decision notice on 2 June 2025 concluding that the council did not hold the information requested.Thompson appealed under s.57 FOIA.
Part 1 – No evidence council held correspondence with SAAA
Although the appellant argued that the council must have contacted SAAA, pointing to its historical pattern of seeking assistance with large audit bills, the Tribunal held that on the balance of probabilities, Potto Parish Council did not hold relevant correspondence relating to the 2024 invoice.
The panel acknowledged that the appellant’s assumptions were “reasonable”, but found no evidence that any such contact had taken place, nor of use of personal email accounts or other undisclosed channels.
The Tribunal noted that if the council had contacted SAAA, it would expect to find recorded evidence of that interaction, particularly given that past communication with SAAA had been formally minuted.
Part 2 – Council did hold information, despite initial denials
A central feature of the Tribunal’s reasoning, and the area where the appeal succeeded, concerned the council’s incorrect assertion that it did not hold the “separate cover” detailing additional audit fees.
During the ICO’s post‑appeal enquiries, Potto Parish Council abruptly reversed its position, confirming on 6 October 2025 that it did hold the information and then disclosing it to the requester. The council provided no explanation for why the material was not located earlier.
The Tribunal was critical of this unexplained volte‑face, observing that the council:
- failed to offer any account of why information previously said not to exist had since been located;
- did not provide a witness statement or appeal response;
- gave no clarification to the Tribunal regarding the nature of the “misinterpretation” cited by the ICO.
Because of this, the Tribunal declined to “simply accept” the council’s earlier assertions about its searches.
Part 3 – Not a request for recorded information
The Tribunal dismissed the third element of appeal which asked the council to “specify the errors” it claimed existed in the auditor’s report. The panel held that this was not a request for statutorily disclosable recorded information under FOIA, but rather a question seeking explanation, making it “more akin to an interrogatory request"..
Appellant’s wider criticisms could not be taken into account
Thompson had referenced the parish council’s alleged history of inadequate FOI compliance, highlighting what she said were numerous past ICO decision notices and an adverse external audit comment. However, the Tribunal emphasised that it was required to decide the appeal only on evidence relevant to the specific request, and not on broader criticisms of the council’s governance culture.
The appeal was therefore allowed in part and dismissed in part. Part 2 was succesful in that the council did hold the requested informaton but as it has now been disclosed, no further steps are required. Part 1 failed because, on the balance of probabilities, the council did not hold the information and Part 3 because the question did not qualify as a FOIA request for recorded information.
