Tribunal upholds ICO decision in Cawthorne v Information Commissioner pothole webpage dispute

The First-tier Tribunal (General Regulatory Chamber) has dismissed an appeal against the Information Commissioner's decision that Essex County Council had disclosed all information it held relating to a change made to its "report a pothole" webpage, in a judgement handed down on 20 July 2026.

The case, Christopher Matthew Cawthorne v The Information Commissioner [2026] UKFTT 1051 (GRC), concerned a Freedom of Information Act 2000 request made by Christopher Cawthorne in November 2024. Cawthorne sought the rationale behind a change to the Essex Highways website, which altered where a link from the "Potholes" page directed users on the "Tell Us" page. He believed the amendment, made around February 2024, removed visibility of wording directing users with safety-critical faults to phone in reports, at an earlier stage of the reporting journey.

The Council responded that no recorded rationale existed for the change, describing it as a minor amendment made following customer feedback to improve navigation. It disclosed an extract of an email, later confirmed to have been sent by Cawthorne himself to the Council's Insurance Claims team, which had prompted a member of the communications team to review and adjust the webpage. Some details, including the identities of the sender and recipient, were withheld under sections 40(1) and 40(2) of FOIA, covering personal data.

Cawthorne was not satisfied with the response, arguing that a change of this nature, which he believed could affect claims exceeding £30 million across thousands of potential claimants, would constitute a "Key Decision" requiring formal documentation, consultation and audit trails. He maintained that further correspondence, including communications between departments and with Councillor Tom Cunningham, the Cabinet Minister for Highways, must exist and had not been disclosed.

The Information Commissioner's Office investigated and concluded, in a Decision Notice dated 31 July 2025, that the Council had correctly withheld personal data and had otherwise disclosed all held information. The Commissioner accepted the Council's account of the searches conducted, including checks of Highways, Insurance and Member Enquiries files, and consultation with relevant staff using eDiscovery tools.

On appeal, Cawthorne set out seven grounds for believing the balance of probabilities test had been wrongly applied, including that a conflict of interest existed because the officer who made the webpage change was also responsible for handling the FOIA response, and that undisclosed correspondence with Councillor Cunningham must exist.

The Tribunal, chaired by Judge Shenaz Muzaffer sitting with members Jo Murphy and Pieter Dewaal, applied established authority including Linda Bromley v Information Commissioner and Andrew Preston v Information Commissioner, confirming that whether information is held is a question of fact determined on the balance of probabilities, and that the relevant test concerns what was recorded and retained, not what should have been.

The panel found that Cawthorne had not disputed the Council's account of the file locations searched or the search terms used, only the effectiveness of the searches. It held that the Council's position, that the change was treated as routine and therefore not formally documented, was reasonable, and that there was no evidence of any motive to mislead or withhold information. The Tribunal noted that correspondence held by a councillor acting in an elected capacity does not constitute information held by the Council for FOIA purposes.

The appeal was dismissed in full.